Virginia, P, R, 1813-1993, Undated

e~

pe

oon ee

May 24, 1984

Ko WO = j \ Wat
\ AE A. \ \ \ “) R 7
- Ne me wa

\ “y

4

‘ Gus
Terrain: Ee

ae

THE COUNTY LINE PHOTO BY MARGARET L. BROADDUS

Two men fish in Upham Brook at the site where, 184 years earlier, Gabriel met with slaves to plot rebellion.

Slaves poised for attack

By Douglas A. Thorpe
Special to The County Line

On Aug. 30, 1800, Gabriel’s rebellious army of slaves,
representing not only the first but the most massive plot
against slavery ever uncovered in this county, were quietly
rendezvousing in Henrico County.

The spot at which they met was just past and east
of today’s bridge of Upham Brook on Brook Road. Their
target was Richmond.

Midnight, the time set to attack, was nearing.

At sunset, a violent thunderstorm struck Henrico
County, pouring torrents of rain onto an already well-

Third of five parts

soaked ground. Roads were flooded and bridges were
washed away. Gabriel’s men were ready to strike, but
no movement was possible under such conditions.

Gabriel angrily disbanded the group and planned to
strike the next night, Sunday. But the storm had not
only destroyed any chance of movement, it had also
collapsed morale and wiped out communications. The
next day, only Jack Bowler and Gabriel's brothers came.

But even a worse catastrophe than the storm had
gathered. Gabriel's plotters had not been the only force
hindered by the storm — so had a strong white patrol.

After months of astonishing secrecy, security had been
broken at the last moment.

What had happened?

About midday on August 30, Tom, a field hand on
Brookfield (Gabriel’s plantation) and a member of the
original attack force, apparently became unnerved. Or
perhaps personal gain motivated Tom. For whatever
reason, he went to a houseservant ona nearby plantation
and told him of the plot. The houseservant, Pharoah,
took Tom to his master, Mosby Sheppard. Gabriel's Plot
was now exposed.

- Mosby Sheppard is the same Sheppard who built the
plantation house at Meadow Farm near Glen Allen. The
house still stands and has been restored on a public park
in Henrico County. It was built a few years after Gabriel's
Plot, not before as some sources have indicated.

Mosby Sheppard was quick to act. He hastily wrote
a note to Governor James Monroe, the future President
of the United States, in Richmond. Then he notifed a
Major William Mosby. The major formed a patrol.

Monroe received Sheppard’s note about 2 o'clock on

as secret as possible, Monroe took. immediate steps,
including sending a cavalry force to reinforce the planter’s
patrol in Henrico,

The storm not only prevented Gabriel’s force from
moving, it kept his men from clashing with the patrol
as well. And it prevented the patrol from finding anything
out of the: ordinary. Ironically, the rain drove the patrol
inside for the night at Gregory’s Tavern — the same
spot where Gabriel’s arms were hidden.

Only one member of the patrol noted anything out
of the ordinary. Blacks always moved toward Richmond
on Saturday night; this Saturday, the oberservant patroller
noted during intervals in the rain, they were moving away
from Richmond, toward the county.

Monroe was ready to dismiss the night’s activity as
another rumor. But the next morning he heard again
from Major Mosby. The major, after being on patrol
most of the night, had been‘awakened in the late morning
by his housegirl, who told him that many plotters had
gathered in the night.

Even now, Monroe hoped he could keep his actions
secret and the events would pass by without notice.
Conspiracies had been exaggerated, even created, before
and he did not want to alarm the public, He also wanted
to have the involved slaves quietly transported out of
the country, both for humane reasons and to save the
state money.

There was another reason, perhaps the major one.
Politics. 1800 was a presidential election year and Monroe
was a protege, ally and fervent supporter of Thomas
Jefferson. An insurrection on the scope of Gabriel's would
be an acute embarrasment to Jefferson.

But Monroe failed in his bid for secrecy. Word leaked
out and the plot was simply too widespeard to keep
concealed. Monroe himself quickly became convinced
that most of the slaves in Richmond and in Henrico,
Caroline, Louisa, Chesterfield and Goochland counties
had been involved. Perhaps, Monroe believed, the plot
had spread throughout the state.

Gabriel's cause was lost. So was Monroe’s bid for
secrecy, though he kept the trials as uiet as possible.
Tom and Pharoah — two slaves wiiv had saved the
whites and doomed the conspirators — were given a
reward and freed five months later.

Arrests were soon made. On Sept. 2, three days after
Gabriel had planned to attack Richmond, about 20 slaves
were arrested in Henrico County at Brookfield and
brought to Richmond.

Next Weeks PartQvio gs ids e eee’

ee

THE COUNTY LINE PHOTO BY KIM BEEKMAN-DEW

View eastward from roof of Medical College of Virginia shows (A) probable site of Gabriel’s hanging and (B) probable site

of his burial in Richmond’s Shockoe Valley.

Slave hanged for plotting

By Douglas A. Thorpe
Special to The County Line

When they had realized all was lost in their massive
plot against the whites, Gabriel and Jack Bowler fled
sometime before the arrests on Sept. 2.

Upham Brook, a short distance from today’s Brook
Road, flows into low, swampy ground. After it flows
past Chamberlayne Avenue, it runs through an extensive
swamp untii its eventual union with the Chickahominy.
The area exists today just as it did in 1800.

It was through the swamps that Gabriel fled and hid
himself, eventually reaching the Chickahominy. Though
this is conjecture, somewhere along the line he left the
swamps around the Chickahominy and, probably using
the cover of the White Oak Swamp in eastern Henrico
County, arrived at a point on the James just south of
Richmond in Henrico.

Though it is known that he hid in the swamps, his
actual movements are not a matter of record unti Sept.
18, 1800.

A few days before that date, the three-masted schooner,
Mary, had debarked from Richmond. Its destination,
Norfolk via the James. On Sept. 18, at a place called
Ward’s Reach in Henrico County (about four miles
downriver from today’s downtown Richmond), Gabriel
ran from a patch of woods. He threw a stick with a

Last of five parts

bayonet on it into the river and waded across a sandbar
toward the ship. He was taken aboard.

Though the ship was manned by slaves, its captain,
Richardson Taylor, was a devoted Methodist who was
anti-slavery. Gabriel told Taylor that he was a free man
named Daniel, adding that he had misplaced his papers.
There is little doubt that the captain knew who his
passenger was. Yet Richardson was not interested in
Gabriel’s capture, arrest or the large reward that had
been placed on Gabriel’s head.

But other members of his crew were interested in the
reward. Two of them — Isham and Billy — immediately
recognized Gabriel. When the ship docked in Norfolk
on Sept. 25, one or both went to a free man, who in
turn went to a constable. Gabriel was quickly arrested.

It will always remain an irony that, in the last days
of his freedom, Gabriel was protected by a white and
betrayed by blacks.

Upon his arrest, perhaps after a moment of fear, Gabriel
muttered something about Jack Bowler being responsible
for the plot. But he seems to have regained his composure
immediately and thereafter refused to speak to anyone
but the governor, James Monroe.

Gabriel was taken to Richmond in irons and arrived
on Sept. 27. At four o'clock in the afternoon of the
same day, Gabriel had his meeting with Monroe. A “large
crowd of whites and blacks” had gathered about Gabriel
and Monroe felt obliged to have 20 soldiers escort Gabriel
to the mansion.

What was said in the private meeting will never be
known. Monroe, after the meeting, said only that Gabriel
was ready to die and that he had revealed little about

+ the plot. -

Monroe ordered that Gabriel be isolated in jail and

not allowed to speak to anyone unless Monroe approved
in advance. He, Monroe, hoped that Gabriel would
confess and shed some light on what had happened.

Monroe would be disappointed. Gabriel said nothing
at his trial and never confessed.

On Oct. 6, Gabriel was tried and found guilty. One
of his chief accusers was his brother, Solomon. He was
sentenced to hang the next day. In a futile attempt to
elicit a confession, the sentence was reprieved until Oct.
10.

On the same day of Gabriel's execution, Jack Bowler
surrendered in Henrico. He had been persuaded to turn
himself in by a free black, Peter Smith, who later received
a $50 reward for his advice.

Apparently, despite his massive build, Jack had hid
among the free blacks, possibly in Richmond. That is
conjecture because, like Gabriel, Jack Bowler never
confessed.

Jack was tried on Oct. 29 and was sentenced to hang
on Nov. 14. Though it is likely he was hanged, there
is some speculation that he was pardoned despite being,
along with Gabriel, the major driving force behind the
plot.

On the day of his execution, Gabriel was transported
to the “usual place of execution” in the back of a wagon,
sitting on his coffin. The streets of Richmond were lined
with a large crowd. Blacks sang hymns and cried,
emotionally paying their last respects to Gabriel. Whites
were shocked and somber — never again could they
assume that blacks were content in their lives as slaves.

Though the quote has probably been invented,
Gabriel's supposed last words were a fitting epitaph for
his failed plot:

“The business only required a beginning.”

Whites for many years avoided the site of the execution,
fearing it was haunted. Reports of Gabriel's ghost being
seen in Henrico’s swamps were numerous. A sad,
melancholy ballad, “Gabriel’s Defeat,” was composed by
blacks and played at white dances and in the slaves’ cabins.
The song soon faded, and its words have been lost.

Though there is no record of it, Gabriel's body was
probably quickly cut down and buried. That he rode
on his coffin suggests that he was buried nearby. An
old map of Richmond, dated 1849, is marked “gallows”
on the same spot as Gabriel was executed. Apparently,
the spot was still used for hangings. Nearby, in very close
proximity, is the notation “Negro burial ground.” It is
there that we may presume Gabriel was buried. His bones
may rest today under some railroad tracks in Shockoe
Valley or possibly they were dug up during the
construction of Interstate 95.

The “usual place of execution” was just north of Broad
Street where 15th Street crossed. Today, the site is on
the property of Reams Oil Co. or, like Gabriel's bones,
it could have been obliterated by I-95. There are no
markers.

In 1800, the place of execution was a clearing among
some pines, by the side of Shockoe Creek (which has
long since been sentenced to an underground sewer).

It is quite possible that the last sight Gabriel ever saw
was St. John’s Church on the hill overlooking the site.
It was at that church that Patrick Henry made his “liberty
or death” speech.

Gabriel was 24 years old when he died, having been
born in the year of the Declaration of Independence,
1776.

Oe, ee a LlLUlLlllU aoa

THE COUNTY LINE

May 31, 1984

29 slaves hanged for Henrico plot roles

By Douglas A. Thorpe
Special to The County Line

In Henrico County, the moment to strike for the most
massive slave plot in this country had passed. Bad luck
in the form of a storm combined with the betrayal by
a member of the plot had destroyed the insurrection.

On Sept. 11, 1800, 12 days after the rain-soaked failure
of Aug. 30 and nine days after their arrest, the first group
of slaves were tried. Solomon, the brother of Gabriel
and a major figure in the plot, was among them. The
next day, another brother, Martin the preacher and public
spokesman for Gabriel, was tried.

They were all found guilty and sentenced to hang on
Sept. 15. On that day, Martin was executed at Prosser’s
Tavern, just north of Upham Brook on Brook Road.
George Smith, an early leader in the plot, soon followed.

But Solomon did not hang. He confessed. Ben
Woolfolk, another top lieutenant and a major recruiter,
also confessed. A few others joined them, and they all

Fourth of five parts

testified at later trials of the plotters. Eventually pardoned,
they ended up in the West Indies (sold to) or, because
of unscrupulous slave dealers, the Deep South.

Though the original records of the trials can be
misleading, it can be safely surmised that from 21 to
35 slaves were hung for their part in the plot.

After pouring over the original records (a “record”
of a trial — or confession — was handwritten, usually
on one piece of paper no larger than modern stationery)
at the Virginia State Library and doing research at the
Virginia Historical Society and Caroline Court House,
I found the names of 69 slaves mentioned. Some records,
such as all of Hanover County's records before 1865,
were destroyed when Richmond was burned during the
Civil War. These records of the trials and a few confessions
are all that will ever be known of Gabriel’s Plot. Secondary
sources usually contain errors.

Of the 69 names mentioned (a mere mention was all
that was needed to make my list), 47 were found guilty,
6 were acquitted, II never came to trial (i.e., never
mentioned again), one was dismissed (a free man — slaves
could not testify against a free man, black or white).
One man ran away, was eventually recaptured and
testified. Another ran away and I could find no record
of his capture. The last two men “mentioned” were
Pharoah and Tom, who revealed the plot and were given
their freedom in 1801. Not on the list were two mysterious
“Frenchmen” who were vaguely referred to.

Of the 47 that were found guilt, 14 either confessed,
testifed and were pardoned or were pardoned outright.
A “pardon” meant that a man was sold and either sent
south or out of the country. Of the remaining 33, there
is some confusion as to how many were actually hung.
I prefer a figure around 25,

There are two ways to look at that final figure. To
project it into today’s population of the Richmond area,
it would mean that about 2500 men would have to be
hung in Henrico County.

But, when we take into consideration the extent of
Gabnel’s Plot, the number of men hung was small. It
must be pointed out that, for their day, the slaves, with
the possible exception of one or two, were given fair
trials and were represented by a top lawyer from
Richmond.

The whites’ vengeance could have been much worse.
There are four primary reasons why it wasn't.

Bond

¥

Although documents describing Gabriel’s appearance are
sketchy, he apparently looked like this in 1800.

First of all, no white or black was killed. The storm
and Monroe's actions prevented that. All of those
executed were charged with “plotting and insurrection,”
a capital offense for a slave.

Second, the cost of massive retaliation against the
plotters was prohibitive. The State of Virginia was
required by law to reimburse an owner for any slave
it executed. A skilled slave in his prime could be valued
as high as $500. For comparison, a dollar a day in 1800
was a good living wage in Norfolk. A solid house (but
not a mansion) cost about $600, a crude one $200.

The cost to the state, even with the limited number
of executions was high. The budget for Virginia in 1801-
1802 was $377,703. The cost for the executions alone
was $14,242.31. Other expenses pushed that total to
around $25,000. Projecting that into Virginia’s budget
today, the relative cost of Gabriel’s Plot was $238 million
dollars. Even in inflated dollars, that is quite a sum.

Another reason for the low number of slaves executed
was simply leniency. There was no violent white backlash
against blacks as occured after Nat Turner’s Rebellion.
Many masters, regardless of whether their slaves were

conspirators, needed them for labor. And a good number
of whites had a strong sense of affection for their slaves.
There are a few instances of some master rushing to
the defense of an accused slave.

A final reason is politics. As we have seen, Monroe
wanted to keep the plot secret if at all possible. Once
the executions started, he wanted to end them as soon
as possible. Thomas Jefferson, in constant contact with
Monroe by letter, supported the governor and an end
to the exectuions, both for political and humane reasons.

Monroe, Jefferson and John Randolph all commented
favorably on the courage and composure of the slaves
that were executed. All went to their deaths calmly and
bravely. Monroe was obliged to send troops to each
execution. Large crowds gathered at the hangings, the
blacks often wailing and singing hymns.

If the whites were sombered by the strong support
blacks showed for the conspirators at the hangings, they
were downright shocked at what the conspirators had
planned to do to them.

Here we run into mass confusion. All that is knnown,
as I have mentioned, about Gabriel’s Plot is from very
brief confessions and testimony at the trials. But even
the testimony and confessions of the slaves involved are
suspect. For one thing, their words are self-serving. They
didnt want to die. And a few appeared confused. A
witness often contradicted himself at another trial,
particularly the many times called upon, and seemingly
shifty, Ben Woolfolk. ;

In addition, a confessor or witness naturally enough
tended to minimize his involvement and maximize that
of others. And perhaps whites were told what they wanted
to hear. To compound the problem, we have only sketchy
generalizations of the testimony itself,

Some of the evidence is bizarre. Gabriel was supposed
to have wanted to spare the white Mrs. David Meade
Randolph and make her his queen simply because she
was a good cook. Others said that Gabriel, if he was
defeated, planned on retrating to Virginia's mountains
and live as a free man in an eagle's nest.

Still another witness said, if the whites in Richmond
had surrendered, Gabriel had planned on wining and
dining with the merchants. George Smith, perhaps born
in Africa, believed the whites’ bullets would be turned
to water. He wanted to recruit the “Outlandish” people,
possibly Indians, but certainly people that Smith though
were well-versed in withchcraft.

Whatever the truth was, blood was to be shed. Gabriel
was said to have wanted to kill every white man, woman
and child. Another witness said those who begged for
quarter were to be spared (black and white). Another
witness agreed but insisted that the left arm was to be
cut off of those spared. Other accounts, in various mixes,
gave quarter to poor white women who did not own
slaves, the French, Quakers and Methodists.

The truth will never be known, but I personally believe
Gabriel was much too wise a leader to go around asking
whites if they were Methodists. At least in the early stages,
the violence would have probably been indiscriminate,
similar to the horror in Nat Turner's Rebellion.

The trails and hangings had started and the whites
had some answers. But as September wore on, one
question had not been answered: Where was Gabriel and
Jack Bowler?

Next week: Part V

Page 6

THE COUNTY LINE

May 17, 1984

Was plotting Henrico slave a man?

By Douglas A. Thorpe
Special to The County Line

“Are you a man?”

A huge black man named Jack Bowler (the Ditcher)
stood in a small clearing just in front of a blacksmith
shop. The shop was on a plantation just east of Brook
Road and north of Upham Brook (called The Brook
in Bowler’s day). He was challenging two brothers in
the shop, Gabriel and Solomon. It was spring, 1800.

Not only was the challenge personal, it is historical.
It was perhaps the moment when Gabriel decided to
become active in — and eventually lead — the first and
most massive slave plot ever uncovered.

Jack Bowler was even taller (6-foot-4) and stronger
than the powerful Gabriel. His purpose that day was
one of recruitment, for he led a faction of slaves planning
an uprising against the whites. He wanted Gabriel on
his side.

It appears that there were separate currents of hostility
running rampant through Henrico County and_ the
surrounding area before Gabriel began to play a major
role.

One faction was led by another Henrico slave, George
Smith. He allied with another influential slave from
Caroline County, Ben Woolfolk. Smith lived on the
Winston plantation, Half-Sink, located just east of
Telegraph Road and just south of the Chickahominy

Second of five parts

River. Today, from Telegraph Road looking across a
field, a chimney can be barely made out in a clump
of woods. Though this house in ruins on Half-Sink was
probably not the original manor house in 1800, Gen.
Robert E. Lee is said to have used it for his headquarters
at least once.

A second faction was Jack Bowler’s. The property
of a widow in Caroline County, Jack was allowed to
roam and find work so long as he paid a monthly sum
to the widow. In effect, he rented his freedom. He was
well known throughout the state.

A final faction was Gabriel’s. Whether or not his group
was active before the day of the blacksmith shop is not
known, but Gabriel quickly surmised that the Smith,
Woolfolk and Bowler factions had little form and direction
and no strategy. In other words, their efforts had been
mainly talk, mainly dreams.

But Gabriel was different. He was more of an organizer,
a man who got things done, and less of a flashy recruiter
like Smith, Bowler and Woolfolk. We went to work.

His first task was to convince his two brothers to join
him. Solomon, an accomplished blacksmith and
somewhat of a cynic, began to make and conceal weapons.
Martin, a preacher, became the spiritual force behind
the plot and often stepped in for Gabriel to speak in
front of others. Gabriel was apparently not as gifted as
Martin as a public speaker.

Gabriel realized his task was to transform the hostility
toward the whites into action. There were three areas
he paid particularly close attention to: what kind of men
were recruited, the making and hiding of weapons and
the actual planning of a successful attack.

At one time, Gabriel boasted of having 10,000 men
{another time 5,000) ready to kill the whites. But these
figures were used mainly in recruiting. In private and

with trusted lieutenants, Gabriel was realistic and planned -

accordingly. He expected only about 250 men to
participate in the initial bloodshed. He thought that more
men would join them once the revolt was in progress.

~~~ de NY

ict hie Va Pai ec. TYP
THE COUNTY LINE PHOTO BY MARGARET L. BROADDUS
This chimney stands in ruin on the site of the Half-Sink

plantation, where slave George Smith lived.

Many, perhaps in the thousands, had told him or his
recruiters that they would wait and see how successful
he was. All depended on surprise and initial success.

While an armed mob of 250 men may seem small
by today’s standards, we must put these figures in
perspective. In 1800, Richmond, the target of the attack,
had a population of 5300, half of which was black. Of
the more than 2500 whites, many were women, children
and the aged. And Gabriel hoped to surprise the remaining
able-bodied men with the aid of a diversionary tactic.

If Gabriel was initially successful, he expected
thousands of men to join him from the countryside.
Governor James Monroe later became convinced that
Gabriel's expectations had merit.

But these men had to be armed. Gabriel used Solomon
and a few others to forge the weapons from farm utensils.
They made lethal swords from scythes, formed daggers,
bayonets and pikeheads. Even crossbows were made.
Gabriel himself made wooden handles for the weapons.
He also molded over 500 bullets and somehow acquired
ten pounds of gunpowder. And he issued a standing
order that each of his men were to be armed with at
least a wooden club.

Many of the weapons, if not all, were hidden at a
location where white men dined, drank and slept every
night —- Gregory's Tavern. | am not quite sure where
the location of this tavern was, but I believe it was in
the vicinity of the present-day McDonald’s on Cham-
berlayne Avenue north of Azalea Avenue.

As far as planning was concerned, Gabriel knew he
had to strike suddenly, decisively and sensationally. If
he failed, he realized there would be no mass uprising.
His more faint-hearted followers, waiting in the wings,
would quickly be lost.

One thorny problem remained before a plan could
be relied upon. The conspirators were not unified. George
Smith’s and Jack Bowler’s followers remained independ-
ant of Gabriel. Though it appears the conspirators
intermingled and there was a loose confederacy, jealousies
did exist that were capable of dooming any plan from
the start. A united effort was essential.

The plot had a pivotal meeting three weeks before
the eventual date of attack. Though quiet talk and
restrained efforts were common at many black social
functions (unsupervised by whites), the conspirators met
most often at three points in Henrico County: Half-Sink,
just south of the Chickahominy River near Telegraph
Road; Brookfield at the blacksmith shop; and at Young’s
Spring on Westbrook plantation in the vicinity of today’s
Westbrook Hospital. (This last spot may be just barely
outside of the county in Richmond.)

A confrontation of the factions took place at a meeting
at Young's Spring. On a Saturday afternoon, after the
funeral of a black infant, Gabriel asked and the
conspirators agreed to meet and iron out their differences.

Without going into any detail, the meeting was fiery.
Jack Bowler miscalculated and asked to be voted
“general.” A vote was taken and Gabriel was overwhelm-
ingly selected to lead the attack. He appointed George
Smith and Jack Bowler seconds-in-command. Talk
turned to setting a date. Gabriel favored as early a date
as possible while George Smith forcefully argued for delay.
At a critical moment, Gabriel deferred to Martin, who
carried the argument in their favor. A date was set —
again after much opposition to a Saturday night instead
of a Sunday night — for Saturday night, Aug. 30, 1800.

Jack Bowler and George Smith accepted the vote and,
along with Solomon and Gabriel, planned the attack.
Their military strategy, chiefly formulated by Gabriel,
was astute.

Gabriel decided on a three-prong attack on Richmond,
realistically planning on using just 250 men.

One group of fifty men was to set fire to Rocketts,
a slum located near the not-too-long-ago demolished
Fulton Bottom in far eastern Richmond. As the fire
blazed, most of the able-bodied men in Richmond would
rush to fight it.

Another group of 100 men were to remain behind
to guard the bridge at “Brook Swamp,” either the bridge
over Upham Brook on Brook Road (likely) or a bridge
near today’s bridge over the same creek on Chamberlayne
Avenue,

A third group was to be led by Gabriel. Apparently,
there were only enough arms for this group. Gabriel’s
group (the entire force was to rendezvous first at the
“briery spot” near the bridge on Brook Road at
Brookfield) would move to Gregory’s Tavern, gather their
weapons and move on Richmond, about six miles away
in 1800. Once in Richmond, they would split, one wing
capturing the Capitol and Governor James Monore, the
other the stores of arms at the penitentiary (a temporary
armory at the time).

Next, they would regroup and kill the whites as they
returned, exhausted and unarmed, from fighting the fire.
Richmond would then be fortified and a white flag with
the words “Liberty or Death” would be raised as a signal
to the reluctant plotters in the countryside to join him.

With a date set, plans made, weapons ready and
recruitment finished, final preparations intensified.

The hour to attack was midnight. On a Saturday
afternoon and early evening, Aug. 30, 1800, the
conspirators drifted toward Henrico County and
Brookfield.

They were ready to fight to the death. At a Sunday
barbecue, sometime before that night, Gabriel had stood
and locked hands with his two brothers. He solemnly
swore:

“Here are our hands, our hearts. We will wade to
our knees in blood sooner than fail in this attempt.”

But fate, dressed in an event that no man, white or
black, could control, was about to strike.

Next week: Part III

-_—- == Wwe eWwe wiv Waesbe

Death Sentence Upheld

mw The 4th U:S. Circuit Court of
Appeals in Richmond yesterday
upheld the conviction and death

sentence given to David Mark -

Pruett for the 1985 rape and
murder of a Virginia Beach wo-
man.

The appeals court . rejected
Pruett’s arguments that his trial
lawyer was ineffective, that the
prosecutor engaged in miscon-
duct and that jury instructions
were inadequate. _

“Pruett hada fair trial in every
sense of the words,” the three-
judge panel said. _

Pruett, 43, was convicted of

murdering Wilma Harvey, a

friend who let him into her home
while her husband was out of
town. Pruett admitted that he
threatened Harvey with a knife,

raped her and stabbed her to’

death. He also stole money from

_her home.

Pruett likely will ask for a re-
hearing by the appeals court be-
fore going to the U.S. Supreme
Court, said his attorney, Russell
Frank Canan. If those appeals
fail, an execution date probably
will be set.

PRUETT, David Mark, elec. Va.(Va. Beach) Dec,. 16, 1993

THURSDAY, May 27, 1993 C9

THE WASHINGTON Post
L


iB ce f

By JOE JACKSON, JUNE ARNEY -
AND ROBERT MATTHEWS |
STAFF WRITERS

JARRATT, Va. — David Mark Pruett, who
stabbed two women to death in Virginia Beach
a decade apart, died quietly in Virginia’s elec-
tric chair at 11:10 p.m: Thursday.

At one minute before 11, a door to the death

chamber opened and Pruett, escorted by sev-

eral prison guards and two chaplains, entered

_the room:

Pruett: wore flip-flops ‘and bluejeans, the

“right leg of the jeans cut above the knee. His
head had’ been shaved, and he wore the griz-
zled stubble of a beard. After he sat in the .
chair, black leather straps were placed on —

ee

ae

Ponies: ~ ieee

Thai oS
gt

FRIDAY 3
DEC. 17, 1993

each arm, hia 9 waist, chest and both ankles.
A prison chaplain stepped forward and

; kissed him once on the head. An electrode was

attached to his right leg. A prison‘official with

‘a microphone asked Pruett if he had any last

words, andhesaidno.

At 11:01, a helmet was placed on his head
and an electrode fitted to a clip on the helmet.
Pruett closed his eyes and muttered to himself
in what seemed to be a prayer. A wide mask-

like leather strap was,placed across his face, |
exposing only his nose and part of his chin. -

The chaplains stood back, their arnis around

one another. A guard then wiped Pruett’s leg ©

with a white towel. -

| THE KILLER “His VicTiMs  &

Please see Executed, Page A4 pavid Mark Pruett

7 Wilma Lanham
; . Harvey was

murdered

in 1985.

ip ica ot

Debra Clark

McInnis was ~~

murdered
in 1975.

HAMPTON ROADS’ ONLY AFTERNOON NEWSPAPER

118th Year, No.197


THE VIRGINIAN-PILOT AND THE LEDGER-STAR @|

f

EXECUTION IN VIRGINIA

Continued from Page Al

At 11:02, a chaplain said, “Good-
bye, David.”
A prison official turned a key in a

‘metal box on the wall behind

Pruett, which activated the control
panel. Pruett lunged forward in the
chair and then relaxed. At 11:04, a

second cycle began, and his hands .

turned dark red. White smoke is-
sued from the left side of the
‘helmet.
At 11:05, the key was turned off.
‘At. 11:10, a guard unbuttoned

’Pruett’s shirt. A doctor walked out

of a door to Pruett’s right, put a
stethoscope to his mottled red
chest, and said: “This .man has
expired.”

At 11:11, a blue curtain was
drawn in front of the witness

1993

DECEMBER 17,

chamber. ;
_ Pruett’s execution at Greensville
Correctional Center was the fifth in
Virginia this year, the most in any
year since the Supreme Court al-
lowed states to resumé executions
in 1976. .

Thus ended a long, agonizing
wait for the families of the victims:
Nearly nine years for the family of
Wilma Lanham Harvey; 18 1% years
for the family of Debra Clark
McInnis.

Pruett, 44, was convicted in 1986
for the murder and rape of Harvey,
36, and sentenced to death.

As he was being questioned by
police for Harvey’s 1985 murder,
he confessed both to that killing and
the 1975 slaying of McInnis, 22. He

‘was convicted of first-degree mur-

der and robbery in that case four

months after the capital conviction.

He killed McInnis on May 23,
1975, at a Kentucky Fried Chicken
restaurant where she worked.
Pruett, beset by financial and per-
sonal problems, said he had
planned only to rob McInnis for
money to pay bills.

On Feb. 13, 1985, he went to the
home Richard and Wilma Harvey
while Richard, his best friend, was
out of town on business.

Wilma Harvey told Pruett she
had to get ready for church and
went upstairs. He followed, told her
to take off her clothes and had sex

‘with her, promising he wouldn’t

hurt her. When she tried to get
away, he stabbed her and slit her
throat.

Harvey’s brother, Bill Lanham,

watched as the ambulance carrying:

Ld

‘Execution: Pruett had murdered two Beach women a decade apart

Pruett’s body left the prison.

“I just wonder if he felt the same

fears that my sister felt when she
was dying,” he said softly. “Now we
can go home and try to start life
again.” .

Bill Lanham huddled with his
parents, Margaret and William
Lanham, near a guard station under
a cold, black sky. They had made
the 300-mile trip from Summers-

ville, W.Va., to wait outside the.

prison.

In Chesapeake, six members of
Debra Clark McInnis’ family gath-
ered to await word of Pruett’s exe-
cution. The smell of brewing coffee
filled the kitchen as they sat around
the table. In the background, the
television lawyers tried another
case on “LA Law.”

“When you live with something

“this long, and it’s finally going to

happen, it’s a relief,’ said Pauline
Clark, McInnis’ mother. “This is

‘the best Christmas present the

OhOO-N——

|

Qe POSER SSESSEOs TERE RES <6
ge segeeegighseiges EEEer
5 © Oo Son of 6
“8 & para Se Vo Raessgcegerrs
SERGE COR yutsame Seg cPieeae
23 g 5 B8eEsse PSC aPa ES
4 oa SPS 8 © dp +4
eee Sraehse Fanrsi~' 83d =? §
wnolats>  OuD'S a&n™ ss8os
Shee nOO 9 Pee heseeeeg Se
Fo8rn, <= EB oBS<9ORS8 Bg eG
BS ORS Roo & Seem e
“Om ,eeRE cSSRSRrB teed Re
ct ch n c ©
CPR OEE = GREE S REE =
5% SASSO Or a os8°o
Pe ghaSe ghdogege sgete ee
@ ~ B ys
Bo Sh,88 Boxee kat ob SESE SS
2° 3gUBS* . go Rare ER eos &
2g Beat SEagSeke a BEB RES
BS S°oSe cagssenrs siete gs
a”: Bp res OQOr' Ans 1 aateess
os | r

‘Iasduy J3y

S01} SUL “Poppe sem pos Byxo ayy

aJaym peMmoys sys pue

‘Clarks could have this year.”

; © Sg... O
Cpoge pec S regs
gS rE oo BE ee
Be eRe roe SR aoe
: — @O mr io)

a , 5
geBEshelisises
° s co iv

sro oe Foeck oa. ®
Are SeCSVe* ers
mah SFP eRot es 8° Ss
= & @ = = => O9 a
SESSRES seo Sf
peo ReeS Bo 58
giese F FSS dp
ak Yo. = a eS a8
s28 Sbw pa 2s
mah gSBe $f. 88
Ep SEF BS 74

Jao AI@Ad ayT] yonu

yey) Aep e —
Aep e usaq

pey i pres weyuey -

jolesiey ‘uostid 9y} 9prising -


WASHINGTON, D. C., POST, December 17, 1993

THE WASHINGTON Post

Vire irgimia Man
Teenie for

Rape, Murder |

12-17-43

Associated Press

| JARRATT, Va., Dec. 16—David

| Mark Pruett was electrocuted to-
| night for raping and killing his best
' friend’s wife in Virginia Beach near-
lly nine yearsago,
‘Pruett, 44, was pronounced dead
iat 11:11 p.m. here at the state’s
‘Greensville Correction Center,
' where the state’s electric chair is
| housed.
' “He had his eyes down when they
' brought him in and strapped on his
‘face mask. He didn’t look at any-
_ body,” said Deborah Thomas-Lamb,
: one of eight witnesses to the execu-
_ tion.

Pruett declined to make a final
statement, she said.

Pruett was visited about eight
hours before his execution by his

| wife, Paula, said David Bass, an op-
‘erations manager for the state De-
‘partment of Corrections. Bass said
the two had been married recently.

Earlier today, the U.S. Supreme
Court unenimously rejected Pruett’s
appeal. The one- “paragraph order did

not give the court’s reasons.

Pruett was convicted in 1986 of
raping and stabbing Wilma Harvey
in her Virginia Beach home on Feb.
12, 1985. Harvey's husband, Rich-
ard, who had given Pruett a job at

‘the restaurant he managed, was
| away on business at the time.

Wilma Harvey’s nude body, with
‘multiple stab wounds, was found on
‘her bed with her hands tied behind
‘her back.

“Mrs. Harvey's murder was one of
the worst I've ever seen,” said Ken
Phillips, who prosecuted Pruett.

When he confessed to the slay-
ing, Pruett also told investigators
he had killed Deborah McInnis, a
co-worker at a Kentucky Fried

\

“DAVID MARK PRUETT
.. convicted in 1985 rape, slaying

Chicken restaurant in Virginia
Beach, in 1975.

He was convicted of first-degree
murder and robbery in that case,
four months after the capital con-
viction.

Pruett’s execution was the fifth in
Virginia this year, and the 22nd since
the state reinstituted capital punish-
ment in 1982. Only Texas and Flor-
ida have executed more people.

In a petition filed with Gov.
Douglas Wilder, Pruett’s Neetin
Donald Lee, argued that Pruett’s

“Mrs. Harvey's
murder was one of
the worst I’ve ever
seen.”

— prosecutor Ken Phillips

death sentence should be com-
muted to life in prison. Because of
past convictions, Pruett would not
be eligible for parole.

Lee said jurors who sentenced
Pruett to die never heard about his
severe emotional and psychological
problems.

When Wilder was asked this week
to explain why he rejected clemency,
he pulled out a photo showing Wilma
Harvey with her throat slashed and
said, “That’s why.”

pea nd wile get 7

Ore 2 OM Te

oe OF ae

Ve Commonwealth af Virginia

Phenes

Supreme Court of Virginia

lie ee ee se 4
Weite allele g wd foie (ee oe Les Vie ek a

Pasi esk a aera cieeek pica: ebeattates ea oie
Navember 26,

PreiQe HiSiOrey:
Popes! frome Judgment cat the Cireuit Gourt-of the City of. Vireginia &

permit NW. Woelvenurest, Jf ., JUCGe i

hint.

s

DISFOSITION: Affirmed.

BEANO TE
Criminal ta Bi Py egy e <<

Olek FOUR MBer Ss Vv ELoO oe Pig et

“VEU bLut ictal Law -- Conteseion ==

Net og Ue CLOSED. 2.7 rf ee Se Nee

Robert H. Andersen, III, aA ery,

merneral, an briefi, for appel

Ov Leo, Ga ey Cee) tne opinion at the Court.

a
ret
oa
fwd
i
ners
Frill
mm
at”
2s

rt
To
Ti
tnt
~;
Gy

OF INION:
indicted for capital murder
subsequent ta the ccmmi

wy ibs by mera
PAs id Gr - ~

at life imprisenment an

(he Second oha

feo mt oore muro

Poll owine

pur &

& punishment

- #

bt

Wide


ny emp” le. Mapes 4m oh ot jf a des DAE ce Pah OS pall pc
4 November We » Loe ? IEE CPP Ges cy ‘yoy MPP Yl kL es
-_ ;

SEIT ION: Feqianal News
DISTRIBUTION: Virginia

LENGTH: 497 wir

HEADLINE: State supreme court upholds death

m@ Virginia Supreme Court Wednesday upheld
David Mark Pruett who was canmvicted last year

?
stabbing death of a Virginia Beach woman.

rape, robbery and

1ELPS VT Lom $3 FDX $ 1LEOO N@l 2 LOG CLOSED 2 PRINT OFF 3 ONL TNE

Froprietary tea the United Press International, November 2S, i986

1, id s
Nave caompidered. *?

7?’We can Say without qualification that Fruett’s offense is the sart for
Juries in Virginia generally have approved the death penalty,’? +t
he ie its unanimous opimicon.

Records shawed that Pruett, who was a friend of the victim and her husband

? ?

Vieted Harvey on Feb. 13, 1985. As he watched her pay a paper boy from a cash
box, Pruett said he developed a plan toa rob and rape the woman.

When Harvey refused his advances, he produced a knife and bound and gaqged
her, stabbing her numercus times before slitting her throat.

Froett agked the court to overturn his ee claiming the trial court
the intraductian of statencnte and & coanfession he made te

police,

Fruett contended he was not free to leave an initial interview with police

that first interview led police te suspect him and call him in for a secand
Alt-Z FOR HELPS VT100 2 FDX 2 1200 NS1 2 LOG CLOSED 3 FRINT OFF 3 ON-LINE

Proprietary ta the United Press International, Nevember 26, 1986

LNterview,

i
ra

In ¢ second encauniter with police, Fruett confessed toe the Harvey murder
as well as ba a loys murder of Debra MciInnis, an assistar

Fruett, a Vietnam veteran, also claimed he was previded with insufficient
peychiatric assistance at trial.

He alse contended that having one jury to determine guilt and punishment

unduly prejudiced his case. The high court turned back those arguments as well.

In other court developments:

pital murder ceanvictian of

court, in upholding the death sentence handed dewn by the Virginia Beach
Court, characterized the slaying of Wilma Harvey as ’’ among the worst we

he court

hi
even though he was teld he was mot under arrest. He said information learned in

yt manager of a Kentucky

‘~

titnnis,

icTnnis,

sur der
_—

“OR TSMOUTH,
ae
Netallatioan Ex

ruling

fade the

gs me eee Men sete aps ig tg Noa
wo mauiby prisoner who
at

Praprietary toa the United Fr
April i, i986, Tuesaday,

ME ADL TINE s idewater News Briefs

~INE: VIRGINIA BE

V tle

sentenced ta die
friend’s wife pleadec
1

killing of another

im the @lecty
inna ant

WMT y

i ary

abtboarneys

David
Wation

Mark Pruett, 37,
before

aleo request

his Mmaircuit Court tr

FOR HELPS VTLOO 2 FDX 2 Leo

NB1i 3

Proprietary to the United Fres

Pruett will

ery

stand trial
of &

for the stabbing
ta

amploayee fast-food res
Pruett was
schoaolteach

mut oof bows

furder oof Nar folk
husband was

iar Wilma Harvey.

Ver

David
ayvyaluation
eit Yer

Mar k Pruett, G7, alsa
J

before his June 3 Circuit Ceurt

Pruett will

Eur

the
-frod re

stand trial for

amploayee of a fast

Last Wednesday, Fruett was sentenced tea
mf Nor folk: schoolteacher Wilma
husband was out oof town, Freay 51
Va. CURT) -- The Norfolk
alilakiens chosen to receive the
cellence, shipyard afficials, ¢

Marvy.
mut h

Naval

HELP? VT1L00
LEVEL 1 ~ 5 OF 6

Prospry bet ary

chair
tot
said.

ed that

Internati

death
Ur ant.

‘sentenced ta death

requested that he

trial, sai
sbtabbi ceath
sie

death
She was
shipyard win
Shipy

United ae e365

said

ORIES

fine

hye

LOG

fioy

Yard

STORIES

Interna

mur der
Yeceive aloft
ial, said Mead y
CLOSED 2?
Lira. y

anc

Yeceiyve

ana

is one
Commander ~in=Chief?s
uecday.

er re
ISED 3 FRINT OFF

the rape
and robbery :

— ~ re

yor hy
alline

PRINT OFF

April i,

+}

ae st
ille

Afb i
ad Feb. 12,

A pseychiatri
do Mwnely

age oe Bex Pon ge -¢ Par TT ga bss
robbery af Debmoy

and murder
pay” CY ES ES

OPES y his
3 ON-LINE

yeon poe

1ySe

mg, FYape

fa

Stallings,

in

atric

wad

food
“
3

robbery of Deborah

bind,
Feb. de,
gevernnent
maf four

mmual

=
il
Award
SED 3

FRINT OFF

itionmal 15ee6s

Bat 2

at

4

rape and

995

away cl
Military

+ cm ¥

ON-LINE

mf hiss
the

while


tet P LON s News

Pies Cy iced

DISTRIBUTION: Virginia

LENGTH: L4e words

HEADLINE: Tidewater News

DATELINE: VIRGINIA BEACH, Va.
BODY s
A Circuit

capital

death
im

imposed the
rape and robbery

penalty |
the ste

Judge
murder,

soeg, songp
wet OF conse
tad ¥

bene & aj
mM ana

Whitehurst alsa
tH

Kenme th
Lean

Hucqe
in pr

rs far 12 convietia

Potts a kr yr y

Alt-2 FOR HELPS VTioo 3 FDX 3 1200 NOL

the United Frese Inter

neem
meg igack de Fan

at emmec
Wife j

nae Sas
mid

coy

the

testimony

body was found in bechy cam
€r ial last manth,

cut 29 times.

Harvey? s
During Fruett'’s

re

then stabbed ccd

se pay do ap Spee =f
by gn ej

Friuett “a
af Debra

Fruett canfe

will ty Le Apr id
McInnis, a eae ie
seed ta it after

map y

a ae A

LANGUAGE: ENGL.

aA convicted af

y@ear~-oald David Mark Pruett +
life in prisan for the rape.

PS

LOG CLOSED 3 FRINT

mational, March 26,

stabbing death

cecal home.

she ed, and

ch

“f/f £3 i fone

her ges im the ipys

Crime remained unsolved unt

oie: Ribiing.

a4
eae

see, of

pte

deat

Norfolk schoolteacher.

*

ag

PRUETT v. THOMPSON

1439

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

concluded that “the motion to dismiss is
granted and the petition for appeal is dis-
missed.” Coleman, 895 F.2d at 143 n. 1.

The district court noted that the state’s
argument for dismissal was based on the
petitioner’s untimely filing of a petition for
appeal. The Fourth Circuit affirmed the
court’s recognition of the procedural. bar.
Id. at 143; see also Waye v. Murray, 884
F.2d at 766-67 (noting Virginia Supreme
Court order held claims procedurally
barred for more than one reason, and en-
forcing the procedural bar as to newly
raised portion of petitioner’s claims).

Here, the. Virginia Supreme Court order
which petitioner claims to be ambiguous
states:

Upon review of the record in this case
and consideration of the argument sub-
mitted in support of and in opposition to
the granting of an appeal, we apply the
rule in Slayton v. Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974), to appellant’s as-
signments of error (a) through (f), (h), (j),
(k) and (2); the rule in Hawks v. Coz, 211
Va. 91, 175 S.E.2d 271 (1970), to appel-
lant’s assignments of error (a), (b), (c),
(e), (i), G) and (k); and finding no merit in
assignment of error (g), the Court is of
opinion there is no reversible error in the
judgment complained of. Accordingly,
the Court refuses the petition for ap-
peal.”

Petitioner seizes upon the words “no re-
versible error” and says this indicates the
absence of a clear statement of procedural
default. But an examination of the order
as a whole, especially in light of the argu-
ments advanced in opposition to the peti-
tion and in light of the trial court order
below, shows that the court did expressly
and plainly rely on procedural rules to deny
review.

7. One could argue that the state habeas trial
court orders are the final judgments to examine
for presence of a “plain statement” of reliance
on a procedural bar, because the Virginia Su-
preme Court's denial of a petition for appeal is
simply a refusal to hear an appeal, rather than a
judgment. See Felton v. Barnett, 912 F.2d 92,
94-95 (4th Cir.1990) (applying plain statement
rule to North Carolina trial court judgment,
rather than N.C. Supreme Court's denial of cer-

Petitioner's argument about the logical
inconsistency between a finding of repeti-
tion and procedural default is also merit-
less. A single general constitutional claim
may of course consist of many different
subpart allegations, some of which have
been raised previously (and would thus be
barred from further Virginia court review
by Hawks v. Cox), and some of which have
never been raised or have been raised but
later abandoned (and thus barred from Vir-
ginia court or subsequent federal review by
Slayton v. Parrigan). Cf. Whitley v.
Bair, 802 F.2d at 1496 n. 17 (examining
particular allegations within claims for pro-
cedural default).

With these principles in mind, the Court
will review the apparent procedural de-
faults as relevant to each claim.

III

Claim A: Victim’s Impact

[12] This now states no federal consti-
tutional claim, in light of Payne v. Tennes-
see, — US. —, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991).

There, the Supreme Court overruled the
seminal cases of Booth v. Maryland, 482
U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440
(1987) and South Carolina v. Gathers, 490
U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876
(1989), which had held that admission of
evidence or prosecutor’s statements as to
the crime’s impact on the victim during the
sentencing phase of capital trials were per
se violations of the eighth amendment.

After deciding that such evidence or
statements are relevant to the question of
the defendant’s blameworthiness, the Su-
preme Court concluded, “{I]f the State
chooses to permit the admission of victim
impact evidence and _ prosecutorial argu-

tiorari), cert. denied, — U.S. —, 111 S.Ct. 693,
112 L.Ed.2d 683 (1991).
Both sides assume, however, that the denial of
' a petition for appeal is the relevant final state
court judgment. The Court will do the same.
If this assumption is wrong, it works no preju-
dice to Pruett, because the habeas trial court
orders here are even more precise about how
each element of the claims advanced were
barred.


1438 771 FEDERAL SUPPLEMENT

But “cause” exists in at least the following
circumstances:
(1) Where a constitutional claim is “so
novel that its legal basis is not reason-
ably available to counsel” at the time of
the default. Reed v. Ross, 468 U.S. at
16, 104 S.Ct. at 2910.

A claim is not so novel, however, if
“various forms of the claim had been
percolating in the lower courts for
years.” 17A C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure
§ 4266.1 at p. 460 & n. 48 (1988); see
Smith v. Murray, 477 U.S. 527, 106 S.Ct.
2661, 2666-68, 91 L.Ed.2d 434 (1986).
(2) Where counsel is responsible for the
default through a mistake of such magni-
tude that it amounts to ineffective assist-
ance of counsel under the strict stan-
dards announced in Strickland v. Wash-
ington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 2645,
91 L.Ed.2d 397 (1986).

An ineffective assistance claim is itself
subject to exhaustion and procedural de-
fault barriers, however. See id. at 488-
89, 106 S.Ct. at 2645-46.

Furthermore, cause need not be shown in
the “extraordinary case, where a constitu-
tional violation has probably resulted in the
conviction of one who is actually innocent.”
Murray, 477 U.S. at 496, 106 S.Ct. at 2649.

[11] Both cause and prejudice must be
shown. See Engle v. Isaac, 456 U.S. 107,
134 n. 48, 102 S.Ct. 1558, 1575 n. 48, 71
L.Ed.2d 783 (1982). Prejudice must be
evaluated in the total context of the trial,
and is present only if petitioner can show
that the errors “worked to his actual and

5. See also Harris v. Dugger, 874 F.2d 756 (11th
Cir.1989) (prejudice arose from counsels’ failure
to present or investigate mitigating evidence in
capital case where there was “reasonable proba-
bility” jury would have recommended life rather
than execution if presented with proffered evi-
dence that defendant's family would have testi-
fied favorably to his character and lack of evi-
dence that defendant entered victim's home
with intent to kill), cert. denied, — U.S. —,
110 S.Ct. 573, 107 L.Ed.2d 568 (1989); Cook v.
Lynaugh, 821 F.2d 1072 (5th Cir.1987) (preju-
dice shown where counsel’s objection to using
void conviction to enhance sentence would defi-
nitely have reduced sentence by half).

substantial disadvantage, infecting his en-
tire trial with error of constitutional dimen-
sions.” United States v. Frady, 456 US.
152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d
816 (1982) (original emphasis).5

Pruett insists that he has not procedural-
ly defaulted, because the Virginia Supreme
Court did not clearly and expressly state its
reliance on a state procedural bar. Harris
v. Reed, 109 S.Ct. at 1045. In a related
argument, he notes that this order found

many of the claims raised in the petition ~ 4

for appeal both repetitious under Hawks v.
Cox, 211 Va. 91, 175 S.E.2d 271 (1970) § and
procedurally barred under Slayton v. Par-
rigan. He argues both cannot logically be
true, and that this order must be viewed as
a ruling that the federal constitutional
claims now before this Court were fully
presented to the state courts. This is
wrong.

It is perfectly acceptable for a state
court to issue alternative holdings—one on
the merits and one on a procedural basis.
See Harris v. Reed, 109 S.Ct. at 1044 n. 10.
All that is necessary is an order which
“shows precisely how the Court dealt with

the petition for appeal.” Coleman v.
Thompson, 895 F.2d 189, 143 (4th Cir.
1990), affd, —- U.S. ——, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991).

Nothing in Harris prohibits this Court
from examining the record and the entire
context of the Virginia Supreme Court or-
der at issue to divine the scope of its state-
ment. In Coleman, for example, the Virgi-
nia high court issued an order which stated
only that the court had considered the op-
posing briefs on the issue of dismissal; it

6. Hawks is essentially a rule of collateral estop-
pel as applied to habeas writs. It indicates
Virginia courts will not issue a writ by reconsid-
ering a claim previously made and rejected on
direct appeal.

Respondent concedes that the Hawks rule

does not bar this Court from considering those _ Z

portions of petitioner’s claims raised on direct
appeal and at each level of the collateral pro-
ceedings. See Baird v. Murray, 885 F.2d 864
{4th Cir.1989) (unpublished).


1440 7171 FEDERAL SUPPLEMENT

ment on that subject, the Eighth Amend-
ment erects no per se bar..... There is no
reason to treat such evidence differently
than other relevant evidence is treated.”
Payne, 111 S.Ct. at 2609.

Claim B: Denial of Competent Psychiat-
ric Evaluation

[13] This presents no ground for collat-
eral relief, because it clearly seeks applica-
tion of a new constitutional rule, within the
meaning of Teague v. Lane, 489 US. 288,
109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

There, the Supreme Court held that a
habeas petitioner could not claim his trial
was unconstitutional for violation of the
rule in Batson v. Kentucky, 476 US. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),§ where
his trial was held before the Batson deci-
sion. Teague, 109 S.Ct. at 1066-67.

The Court also expounded at length on
how to determine whether a case an-
nounces a new constitutional rule:

In general ... a case announces a new
rule when it breaks new ground or im-
poses a new obligation on the States or
the Federal Government. To put it dif-
ferently, a case announces a new rule if
the result was not dictated by precedent
existing at the time the defendant’s con-
viction became final. |

Id. at 1070 (citations omitted, emphasis in
original).

Such rules “should always be applied
retroactively to cases on direct review, but

. generally they should not be applied
retroactively to criminal cases on collateral
review.” Id. at 1071.

In substantially adopting the views of
Justice Harlan in a separate opinion in
Mackey v. United States, 401 U.S. 667, 91
S Ct. 1160, 28 L.Ed.2d 404 (1971), the Court
noted:

8. Batson declared that a criminal defendant can
establish a prima facie case of racial discrimina-
tion in jury selection if he shows (1) that he is a
member of a cognizable racial group, (2) that
the prosecutor exercised peremptory challenges
to remove members of his race from the jury
venire, and (3) that those facts and other cir-
cumstances raise an inference of unlawful ra-
cial exclusion. Batson, 476 U.S. at 96, 106 S.Ct.

Justice Harlan identified only two ex-
ceptions to his general rule of nonre-
troactivity for cases on collateral review.
First, a new rule should be applied retro-
actively if it places “certain kinds of pri-
mary, private individual conduct beyond
the power of the criminal law-making
authority to proscribe.” Second, a new
rule should be applied retroactively if it
requires the observance of ‘those proce-
dures that ... are ‘implicit in the concept
of ordered liberty.’ ”

Id. 109 S.Ct. at 1073 (citations omitted).
That second exception should be reserved
only for “watershed rules of criminal pro-
cedure.” Jd. at 1075. Such rules are those
that involve procedures “central to an accu-
rate determination of innocence or guilt,”
and “implicit in the concept of ordered lib-
erty.” See id. at 1077; see also Sawyer v.
Smith, — U.S. —, 110 S.Ct. 2822, 2831,
111 L.Ed.2d 193 (1990) (second exception
applies only if new rule necessary to accu-
racy of trial, and alters understanding of
“bedrock procedural elements” essential to
fairness).

The Court held that the Batson case did
not fall within either exception to the gen-
eral rule of nonretroactivity. See also
Sawyer, 110 S.Ct. at 2831-33 (Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, .

-86 L.Ed.2d 231 (1985) bar on prosecutor’s

improper capital penalty phase arguments
not available retroactively on habeas); Saf-

fle v. Parks, 494 U.S. 484, 110 S.Ct. 1257,

108 L.Ed.2d 415 (1990) (alleged unconstitu-
tionality of “antisympathy” instruction in
death penalty sentencing phase would cre-
ate new rule which cannot be retroactively
applied); Bassette v. Thompson, 915 F.2d
at 937-39 (constitutional claims attacking
custodial interview by probation and parole
officer and admission of psychiatric testi-
mony offered by defense were based on
new rules not entitled to retroactive appli-

at 1723; see Powers v. Ohio, — U.S. —, 111
S.Ct. 1364, 113 L-Ed.2d 411 (1991) (overruling

Batson to extent it required defendant and re- ~

moved panel member to be of same race).

Previously, the defendant's burden was to
show a pattern of such peremptory strikes based
on race, in “case after case.” See Swain v.
Alabama, 380 U.S. 202, 223, 85 S.Ct. 824, 837, 13
L.Ed.2d 759 (1965).


PRUETT v. THOMPSON 1441

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

cation); cf Evans v. Muncy, 916 F.2d 163,
165-66 (4th Cir.) (vacating stay of execu-
tion based on claim that constitution bars
execution of defendant when behavior sub-
sequent to sentencing casts doubt on
whether aggravating factor supporting
death sentence exists), cert. denied, —
US. ——, 111 S.Ct. 309, 112 L.Ed.2d 295
(1990).

Other than a due process/entitlement ar-
gument discussed briefly below, there is
slim support for the constitutional rule of
“denial of competent and appropriate pre-
trial psychiatric evaluation” which petition-
er advances. Petitioner in fact appears to
concede that, if his argument is accepted
other than on_ statelaw entitlement
grounds, it would constitute a “new rule.”
See Petitioner’s Reply in Opposition to the
Commonwealth’s Motion to Dismiss and
Brief in Support at 13..

The Fourth Circuit has, in dictum, reject-
ed the adoption of any such rule in a case
where a petition was based in part on a
theory of inadequate performance of a
court-appointed psychiatrist:

[W]e think that no such rule should be
inaugurated, even in a capital case. It
will nearly always be possible in cases
involving the basic human emotions to
find one expert witness who disagrees
with another and to procure an affidavit
to that effect from the second’ prospec-
tive witness. To inaugurate a constitu-
tional or procedural rule of an ineffective
expert witness in lieu of the constitution-
al standard of an ineffective attorney, we
think, is going further than the federal
procedural demands of a fair trial and
the constitution require.

Waye v. Murray, 884 F.2d 765, 766-67 (4th
Cir.1989).9

At least one court has expressly held

_. that a habeas claim based on alleged incom-

9. The court in Waye decided the case on proce-
dural bar aspects, but also opined that the peti-
tion was “without substantive merit.” Waye,
884 F.2d at 767.

10. It also appears to be procedurally barred.
Petitioner argued on direct appeal only that the
trial court abused its discretion under the appli-
cable Virginia statutes to appoint a second psy-
chiatrist. See Brief of Appellant at 20.

petence of state-appointed psychiatrists
would invoke a new rule not entitled to
retroactive application. Harris v. Vasquez,
913 F.2d 606, 622-25 (9th Cir.1990); see
also Jackson v. Yist, 921 F.2d 882, 885-86
(9th Cir.1990) (proposed rule requiring ap-
pointment of expert on eyewitness identifi-
cation a new one which would not be retro-
actively applied); Bassette v. Thompson,
915 F.2d at 938-39 (Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985) rule requiring psychiatric assistance
for defendant where state presents psychi-
atric evidence of future dangerousness not
to be applied retroactively).

The due process argument invokes Bell
v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29
L.Ed.2d 90 (1971) and Goldberg v. Kelly,
397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287
(1970). Petitioner claims that Virginia
Code §§ 19.2-169.1 and 19.2-264.3:1 grant
him an entitlement to psychiatric assist-
ance, and that due process “stand[s] for
the unremarkable proposition that a state
may not create an entitlement, and thereby
a due process interest, and then deny the
entitlement arbitrarily.” He claims that
Dr. Tsao’s ineffective assistance arbitrarily
denied him his entitlement without notice
and a hearing. This misconstrues the stat-
utes and the principles of due process, as
well as the facts of this case.’

{14] A criminal defendant has no consti-
tutional or Virginia state law right to a
psychiatrist of his own choosing, or to
“shop around” at state expense for experts
who will present the most advantageous
opinions possible. Pruett v. Common-
wealth, 351 S.E.2d at 7 (citing cases); ac-
cord Satterfield v. Zahradnick, 572 F.2d
443, 445 (4th Cir.), cert. denied, 436 U.S.
920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978);
Va.Code Ann. § 19.2-264.3:1(A) (1990 Repl.

Petitioner argues there is no default, because
the claim is “akin to a claim of ineffective
assistance of counsel,” which cannot be expect-
ed to be raised at trial or on direct appeal.
There is no facial logic to this argument, espe-
cially given the fact that petitioner did address
the failure to appoint another psychiatrist, al-
beit without a constitutional argument, on di-

rect appeal.

\
\
.
.


SEE EIN,

1450 771 FEDERAL SUPPLEMENT

The record does not support the rest of
the Category 3 ineffective assistance
claims, or the Category 1 claims. On direct
appeal and/or in the state habeas proceed-
ing, there were state court findings that
directly contradict these allegations. See
Pruett v. Commonwealth, 351 $8.E.2d at
13-14; State Court Findings of Fact at 7-
17.

Even if this Court did not presume such
findings to be correct,”* independent review
does not suggest counsel was ineffective.

{26] The record indicates that Pruett’s
counsel spent hundreds of hours on
Pruett’s defense. Stallings spent many of
those hours interviewing or attempting to
interview Pruett, Pruett’s parents, and
Pruett’s ex-wife. These-people told him
nothing to indicate that Pruett’s claimed
vices or military experience and family life
had so traumatized him as to support a
credible theory of lack of capacity or men-
tal illness.

Nevertheless, he discussed this informa-
tion with Dr. Tsao. He sought Tsao’s ap-
pointment because of the latter’s reputa-
tion as an experienced and defense-oriented
forensic psychiatrist. He told Tsao what
he had learned of Pruett’s background, and
gave him a transcript of Pruett’s detailed
confession to the murders of Wilma Har-
vey and Debra McInnis. Stallings also de-
scribed to Tsao the almost unlimited defini-
tion of mitigation, in the context of death
penalty cases.

Tsao came to no helpful conclusions.
Stallings persisted, however—he kept in
touch with him, and suggested that there
were perhaps some positive conclusions to
be reached as to Pruett’s future dangerous-
ness, or lack of mental capacity.

23. Findings regarding defendant's state of mind
are presumed correct under 28 U.S.C. § 2254(d).
See Mason v. Procunier, 748 F.2d at 853. So too
are other findings of “historical fact.” See supra
note 18.

24. Stallings did put Pruett’s parents on the stand
during the penalty phase. His mother stated
David Pruett exhibited some adolescent prob-
‘lems with stealing and telling the truth, and
once physically abused her. She also testified
as to the retardation and nerve deafness experi-

Pruett places great emphasis on the de-
fense strategy’s failure to highlight his
vices, childhood difficulties,4 and evidence
of PTSD. Of course, there was hardly any
evidence to support PTSD, except for some
eleventh hour statements from Pruett him-
self that contradicted military records
which counsel obtained. Counsel articu-
lated a reasonable belief that presenting
such weak evidence of PTSD or diminished
capacity could be more damaging than
helpful. See Woomer v. Aiken, 856 F.2d
677, 684 (4th Cir.1988) (drug use not com-
monly viewed as mitigating factor), cert.
denied, 489 U.S. 1091, 109 S.Ct. 1560, 103
L.Ed.2d 862 (1989). Compare Stephens v.
Kemp, 846 F.2d 642, 653 (11th Cir.) (coun-
sel ineffective when failing to follow up on
information that defendant was in mental
hospital shortly before crime), cert. denied,
488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158
(1988).

[27] As to Category 2 claims, they ap-
pear facially inadequate. As Strickland
makes clear, courts should be reluctant to
second guess trial lawyers’ deliberate tac-
tics. See Clozza, 913 F.2d at 1097; Good-
son v. United States, 564 F.2d 1071, 1072
(4th Cir.1977). Claims of tactical error or
failure to object must fail unless the attor-
ney’s conduct is actually incompetent and
prejudicial. See Brown v. Dixon, 891 F.2d
490 (4th Cir.1989), cert. denied, — US.
—, 110 S.Ct. 2220, 109 L.Ed.2d 545
(1990).

{28,29] A state court finding that an
attorney’s action reflected tactical choice is
entitled to a presumption of correctness.
Evans v. Thompson, 881 F.2d at 125.
Most of the Category 2 claims are foreclos-
ed by this rule. Evans also makes clear
the Pruett’s single conclusory allegation of

enced by their other children. See Trial Tr. VI
at 1188-91.

David's father added during the habeas hear-
ings that David became moody and prone to
gambling upon returning from Vietnam. See
Hab. II at 61-63. He also discussed the loss of
David's child, and his marital problems. /d. at
63-66. He could not recall any changes in
David's behavior after the death of the child.
Id. at 66.


ates

PRUETT v. THOMPSON 1451
Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

ineffective assistance of appellate counsel
warrants no relief. See id. at 124 (petition-
er must overcome “strong presumption”
that appellate performance reasonable, and
that appellate claims were those counsel
believed were most “viable”). The Court
does not view this record as allowing peti-
tioner to overcome these presumptions.

Stallings plainly made a choice to get the
jury to focus on his own credibility, and on
whatever sympathy could be generated for
Pruett’s parents. He made this choice to
blunt the impact of the brutality of the
crime, and to avoid any appearance of in-
consistent defenses. Each of his actions
during voir dire, opening and closing state-
ments were consistent with this approach,
which cannot be deemed constitutionally
ineffective.

Many of Stallings’ remarks and choices
here seem even more reasonable and less
prejudicial than those at issue in Clozza v.
Murray. .

There, the Fourth Circuit rejected peti-
tioner’s claims of ineffective assistance.
Those claims were based largely on coun-
sel’s statements, which were as blunt as,
“If it is my kid [Clozza killed] I would
probably want to kill [Clozza].” Counsel
also suggested that he was representing
Clozza only because he had to, and that
nobody would have minded if the defen-
dant’s suicide attempt had been successful.
Clozza, 913 F.2d at 1098 & n. 5.

The Fourth Circuit concluded such state-
ments merely reflected the strategy of
maintaining counsel’s credibility with the
jury. The strategy was reasonable, in light
of the overwhelming evidence of Clozza’s
guilt, and the conflicting evidence as to
diminished capacity or other defenses. See
id. at 1098-99.

Similar factors persuaded the Fourth Cir-
cuit that the statements did not prejudice
Clozza:

25. See also infra pages 1457-58.

26. Of course, there is nothing inherently wrong
with dismissing ineffective assistance claims
without a hearing. See Strickland, 466 U‘S. at
697, 104 S.Ct. at 2069. The reason for this is

In light-of the abundant evidence to
support the verdict and inconsistent evi-
dence to support the defenses available,

we cannot conclude that the result of

‘these proceedings would have been -dif-
ferent had counsel not made the ques-
tioned remarks. —

Id. at 1101.

The allegations classified as Category
2(d) claims deserve some additional com-
ment. There was testimony elicited as to
Pruett’s cooperation with authorities, and
his showing of remorse for the crimes he
committed. See Trial Tr. III at 862-870, VI
at 1181. - And, as noted elsewhere, there
was no indication of an involuntary confes-
sion obtained by coercive police conduct.
See. Colorado v. Connelly, 479 U.S. 157,
107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

In sum, petitioner has failed to meet his
burden as to either prong of the Strick-
land standard. Finally, a word must be
said about the “inadequate hearing” argu-
ment Pruett offers in passing.?5

The plenary state hearing lasted two
days. It included testimony from Pruett’s
lawyers, the prosecuting attorney, Pruett’s
parents, Dr. Tsao, another psychiatrist, and
other persons who worked where Pruett
was kept pending trial. Many of the “guilt
phase”’ ineffective assistance claims were
dismissed before the hearing. But the evi-
dence actually put on certainly addressed
issues relevant to all the ineffective assist-
ance claims advanced in the instant peti-
tion.”6

Petitioner has not stated what non-cumu-
lative evidence he would or could put on, if
granted another hearing on his ineffective
assistance claims in this Court.

He does offer the affidavit of his state
habeas counsel, however, suggesting that
Stallings and Dr. Tsao testified falsely at
the plenary hearing. See Aff. of Marshall
L. Dayan, Esq. (attached to Petitioner’s

evident here, where the confession and other
evidence made it clear the Commonwealth
could prove petitioner's guilt and the presence
of aggravating circumstances, even if counsel
had offered the conflicting and potentially self-
defeating evidence of mental defect or illness.

See, ”
oe


SEER

1452

Reply in Opposition to the Commonwealth’s
Motion to Dismiss and Brief in Support).

Dayan states that the two offered testi-
mony which materially differed from state-
ments they made to him in discussions be-
fore the hearing. He also notes that the
state court denied his motion to reopen the
plenary hearing. That motion was based
solely on the argument that Dayan should
have been allowed to treat Tsao as an
adverse witness because the Common-
wealth paid Tsao $500 for his time in testi-
fying.

{30] Accepting the truth of this affida-
vit, Pruett still cannot rely on this claim
because it was never properly raised before
the state courts,” and is thus exhausted
and procedurally defaulted. See Teague,
109 S.Ct. at 1068-69; Bassette, 915 F.2d at
937. His counsel’s failure to follow proper
procedures during the habeas hearing can-
not support cause for this default, because
there is no constitutional right to effective
assistance of habeas counsel. Coleman v.
Thompson, 895 F.2d at 144.

Claim H: Right to Plead Guilty but Re-
tain Jury Sentencing

{31] On direct appeal, Pruett raised this
claim only under the guise of a state law

claim. Specifically, he argued as follows: -

Counsel is aware that Rule 3A:13(a) of
the Rules of the Virginia Supreme Court
sets out that “the accused is entitled to a
trial by jury only in a Circuit Court on a
plea of not guilty.” However, pursuant
to Rule 3A:18, ... the procedure for the
trial in a case of capital murder is gov-
erned by Va.Code § 19.2-264.3. Because
that statute, in conjunction with the pro-
visions of Va.Code § 19.2-264.4, provides
for a bifurcated trial [in capital cases],
with a separate hearing on the issue of
punishment, Defendant contends that he
is entitled to a jury on the issue of pun-
ishment alone following a plea of guilty
on all charges to the court.

Brief of Appellant at 23.

The Virginia Supreme Court addressed
this argument on its terms, and rejected it.

27. See Underwood v. Brown, 1 Va.App. 318, 338
S.E.2d 854, 858-59 (1986) (holding habeas coun-
sel should have confronted witness with alleg-

771 FEDERAL SUPPLEMENT

It noted that Rule 3A:18 provides that capi-
tal cases shall proceed in accordance with
§§ 19.2-264.2 to 19.2-264.5, but that part
3A rules apply to such cases, except to the
extent they conflict with the statutes. .-Be-
cause there was no conflict between ‘the
Rule 3A:13(a) requirement that jury -trial
rights exist only to one pleading not guilty,
and the statutory provisions for a two-part
trial in capital cases, the rule applies and
Pruett’s argument was without merit.
Pruett v. Commonwealth, 351 8.E.2d at 8.

[32] Because Pruett first raised this
claim as a constitutional one in state habe-
as proceedings, and never alleged any
cause for failure to make the constitutional
claim on direct appeal, he is procedurally
barred from making the claim here. The
Virginia Supreme Court specifically ruled
that this claim was entirely defaulted.

Pruett says this is wrong. He contends
that his direct appeal did raise the claim
under the rubric of federal due process,
and that the Virginia Supreme Court’s fail-
ure to see this makes its procedural default
ruling as to this claim clearly erroneous
and without merit. See Smith v. Digmon,
434 U.S. 382, 98 S.Ct. 597, 54 L.Ed.2d 582
(1978) (per curiam) (claim not unexhausted
merely because state appellate court ig-
nores federal constitutional claim squarely
addressed in brief); Daye v. Attorney Gen-
eral, 696 F.2d at 194 (constitutional claim
raised when argument relies on federal or
state cases employing constitutional analy-
sis in similar fact situations).

This argument rests entirely on the fact
that Pruett’s appeal brief cited Dixon v.
Commonwealth, 161 Va. 1098, 172 S.E.
277 (1934) and Fogg v. Commonwealth,
215 Va. 164, 207 S.E.2d 847 (1974).

The former case dealt entirely with the
construction of a portion of the Virginia
Constitution. It thus failed to even hint at
the federal constitutional claims petitioner
advances here. Pruett apparently ad-
dressed it because of its clear holding that

edly inconsistent statements, even if made to
examining counsel).

’ rad
aN

ASS SSRREE ARIS Hanerec os
SSRN SS STEN rf
338 +3 ¥32 ¢ 38 ,
SssttR yey St HR
‘ 3 : + s 333

‘
«

4l4Fetey
PoP es rss. ts s

Sishs 22go7

Pecortian


PRUETT v. THOMPSON

1453

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

the Virginia Constitution requires that the
court, and not juries, try and sentence de-
fendants upon guilty pleas. Dixon, 172
S.E. at 278.

The latter case held the same thing, but
admittedly also stated, “There is no consti-
tutional right, either under the Constitution
of Virginia or the Constitution of the Unit-
ed States, to a jury trial limited to the issue
of punishment of one who has been found
guilty of a crime.” Fogg, 207 S.E.2d at
849.

To the extent this does raise a federal
constitutional claim, this Court may refuse
to give effect to the Virginia Supreme
Court’s procedural default finding. How-
ever, it is clear in any case that the claim
itself has no foundation. See, €.g., Shaw v.
Martin, 733 F.2d 304, 317 (4th Cir.), cert.
denied, 469 U.S. 878, 105 S.Ct. 230, 83
L.Ed.2d 159 (1984); Fogg, 207 S.E.2d at
849; see also Coleman v. Thompson, 895
F.2d at 145-46 (no requirement for jury
trial on capital sentencing issues).

Claim I: Failure to Excuse Venireman
for Cause

At trial, Pruett’s counsel sought to have
venireman Alfred Friedman excused for
cause. When the trial court denied his
motion, he was forced to use a peremptory
strike on Friedman. The motion was based
on the following dialogue:

Counsel: [I]f you also learned at the
sentencing stage that Mr. Pruett had
done this before some ten years prior to
another helpless victim, do you still feel
you could consider giving him life in the
penitentiary as opposed to the death pen-
alty. Second murder now. Your are
sentencing him on the second.

Friedman: I would have to struggle at

that point.

Counsel: Okay, sir. Let me take you

one further question. Given the fact

that he’s killed two helpless women,
bound, with a knife and that they have
both suffered and that he put on no
evidence in mitigation of these offenses,

28. Although Pruett's state habeas petition did
not specifically discuss this erroneous standard
argument, it did state this claim as based on the
tria! court’s failure “to excuse for cause a venire-

could you consider life in the penitentiary
as opposed to death? _—. ,..
Friedman: That’s a tough question.
Counsel: These are tough cases.
Friedman: Yes. I know that. I could
consider life, but I would probably lean
toward the death penalty.

On direct appeal, Pruett cited only state
court cases for the proposition that the
trial court abused its discretion in denying
the motion to strike for cause. See Pruett
v. Commonwealth, 351 S.E.2d at 9; Brief
of Appellant at 28-29 (citing Martin v.
Commonwealth, 221 Va. 436, 271 S.E.2d
123 (1980)).

Pruett now focuses this claim on the
trial court’s alleged application of the
wrong constitutional standard in deciding
the motion. Specifically, he claims the trial
court employed the standard of Wither-
spoon v. Illinois, 391 U.S. 510, 88 S.Ct.
1770, 20 L.Ed.2d 776 (1968), which held a
juror may be excluded for cause only if he
makes it “unmistakably clear” he would
automatically vote against the death penal-
ty, instead of the modern standard of
Wainwright v. Witt, 469 U.S. 810, 105
S.Ct. 70, 83 L.Ed.2d 20 (1985), in which
jurors must be excused when their views
would prevent or substantially impair the
performance of their duties as a juror in
accordance with the instructions and his
oath. See Ross v. Oklahoma, 487 U.S. 81,
108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

Respondent concedes that the claim is
viable here to the extent it is identical to
the argument advanced on direct appeal.
But he contends the claim is defaulted, to
the extent it raises the improper constitu-
tional standard argument, thus going be-
yond the direct appeal argument and ap-
pearing to be a partially unexhausted claim
which would be procedurally defaulted un-
der Virginia law.

This is a close question. On one hand,
petitioner conceded on collateral appeal
that the habeas trial court was correct in
ruling that the claim repeated the direct

man whose ability to perform his function as a
juror was substantially impaired.” State Hab.
Pet. at para. 183.

err"
o
‘


eiaane

as

PRUETT v. THOMPSON

1565

Cite as 996 F.2d 1560 (4th Cir. 1993)

On direct appeal with respect to prosecuto-
rial misconduct, Pruett raised only the ques-
tion of the Commonwealth’s Attorney’s argu-
ment that Pruett’s attorney had conceded
guilt, which the Virginia Court held to be
without merit. 351 S.E.2d at 10-11; Pruett
v. Thompson, No. 890908, Petition for Appeal
at 30-31 (Va. Nov. 16, 1989). Pruett does
not pursue that issue in this court on the
same theory,’ however. He now, in his brief
here, Brief of Appellant at 32-37, pursues an
extensive list of claimed prosecutorial mis-
conduct which was not presented to the Su-
preme Court of Virginia on direct appeal and
so was procedurally barred from consider-
ation by the Virginia courts on collateral
review, even if there presented, by the rule
of Parrigan. The claims on the present list
have been procedurally defaulted for failure
to exhaust state remedies, having been pro-
cedurally defaulted under state law. While
the district court did consider the claim with
respect to the Commonwealth’s Attorney's
argument that Pruett’s attorney had admit-
ted guilt and decided it was without merit for
the reasons given by the Virginia Supreme
Court, 771 F.Supp. at 1445, the question was
not raised here and we do not consider it.

: The merits of the other claims of prosecutori-

al misconduct have been procedurally de-
faulted as we have set forth and we do not
directly consider them also.‘

On direct appeal, the adequacy of the pen-
alty phase instructions was raised only so far
as the trial court had refused to instruct the
jury that if the jury could not unanimously
agree on the death penalty, the court must

3. Even if Pruett’s mere allusion in his brief to
196 of his federal habeas petition is a sufficient
raising of the question, we deny the claim as
without merit for the same reasons given by the
Virginia Supreme Court, 351 S.E.2d at 10-11,
and the district court, 771 F.Supp. at 1445.
Paragraph 96 states in full: “Defense counsel
also objected to the Commonwealth arguing that
he conceded guilt at voir dire. (App. 1391).
This, too, was overruled. (App. 1393).”

4. The district court apparently held, and, if so,
correctly, and Pruett concedes in his brief that
the district court so held, Brief of Appellant at
33, that the prosecutorial misconduct claim re-
lating to-the offering of evidence relating to Mrs.
Harvey's character was procedurally defaulted.
771 F.Supp. at 1445.

impose a life sentence under Va.Code Ann.

§ 19.2-264.4(E). The Virginia Supreme

Court held that this should not have been the

subject of an instruction because it was a

procedural matter and it would have been an

open invitation for the jury to avoid its re-

sponsibility and to disagree. That question

also is not raised in the same context before
us. Pruett’s claim here is that “[t]he jury
that sentenced petitioner to death was never
instructed that it must consider the mitigat-
ing evidence before imposing the sentence of
death.” Brief of Appellant at 18. The brief
continues, Brief of Appellant at 13-19, in
similar vein that “[iJt is not enough for the
defendant to be able to present mitigating
evidence; the sentencer is also required to
consider it” and the jury must be “0. Te
quired to make an individualized sentencing
determination based on evidence submitted
at the penalty phase.” Brief of Appellant at
14. These theories were not presented on
direct appeal and so were held by the Virgi-
nia Court to have been procedurally default-
ed under Parrigan. Having been: defaulted
under Virginia law, they are similarly de-
faulted in the federal courts for a failure to
exhaust state remedies. So we do not direct-
ly consider on the merits the claimed defi-
ciency in jury instructions at the penalty
phase. :

Il.

Pruett argues that we nonetheless should
address his lesser-included offense instruc-
tion claim because he is entitled to relief

Even if the opinion of the district court “is
construed as reaching whatever merits of the
question the petition for appeal to the state Su-
preme Court presented, it correctly decided that
Payne v. Tennessee, — U.S. ——, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991), had overruled the cases.
of Booth v. Maryland, 482 U.S: 496, 107 S.Ct.
2529, 96 L.Ed.2d 440 (1987), and South Carolina
v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104
L.Ed.2d 876 (1989), which were the only cases.
depended upon by Pruett in his appeal in the
state habeas case. No consideration of any of
the papers in the present case can lead to the
conclusion that the matter of prosecutorial error
in the introduction of evidence relative to the
character of Mrs. Harvey was presented to the
Virginia Supreme Court in any context other
than as a penalty phase error. See Booth, supra;
Gathers, supra. ; y

PRUETT v. THOMPSON

1567

Cite as 996 F.2d 1560 (4th Cir. 1993)

Pruett v. Thompson, No. 890908 (Va. Novem-
ber 16, 1989). ..

Pruett next turned to the United States
District Court for the Eastern District of
Virginia. In his habeas petition there, he
argued once again that he was entitled to the
lesser-included offense instruction on a lack
of premeditation theory. Petition for Writ of
Habeas Corpus at 1955-63, Pruett v.
Thompson, 771 F.Supp. 1428 (E.D.Va.1991).
He argued that there was ample evidence to
support his theory because

[t]he frenzied nature of the killing itself

could have led a reasonable juror to con-

clude that the killing was not deliberate
and premeditated. In addition, there is
evidence to support further mental health
evaluation of the petitioner on the question
of whether he was able to, or did in fact
premeditate and deliberate the killing of
Wilma Harvey.

Id. at 160. Pruett further asserted that his
procedural default of this claim was the re-
sult of “ineffective assistance of trial and
appellate counsel.” Jd. at 163. In analyzing
Pruett’s claim, the district court stated:
His claim before this Court reflects one
first made in state court on collateral ap-
peal—that the nature of the killing and the
nature of the petitioner would have sup-

ported finding that petitioner did not or:

could not have premeditated and deliberat-
ed. over the killing. .

It is not surprising that the Virginia
Supreme Court found this entire claim
procedurally defaulted under. Parrigan.
Although the ineffective assistance of coun-
sel claim may have served as an allegation
of cause and prejudice for failure to raise
the “no rape or force” argument on direct
appeal, petitioner has defaulted on the cur-
rent [lack of premeditation claim] because
it was not even raised in the state habeas
petition. .

771 F.Supp. at 1443. The district court went
on, however, to analyze Pruett’s claim under
the actual innocence exception to the proce-
dural default rules and found no merit in
Pruett’s contentions.

Pruett. now argues in this. court.that the
lesser-included offense. instruction should
have been given on both of his theories: that

there was no rape and that there was no
premeditation. Brief of Appellant at 19.
Pruett relies on statements from his confes-
sion to show that he lacked premeditation,
and he relies on medical evidence to support
his theory that there was no rape. He also
argues that it was ineffective assistance of .
counsel for Stallings to fail to raise this
ground in the direct appeal to the Virginia
Supreme Court. Brief of Appellant at 22.

[6] Any superficial arguability of this
claim, however, is only that. As discussed
previously, Pruett theoretically could have
been guilty of first degree murder if the jury
had found that he had killed Mrs. Harvey
with deliberation and premeditation but that
he had not killed her during the commission
of a rape. Further, Pruett could have been
guilty of first degree murder if the jury had
found a rape and a murder, but no premedi-
tation. This is because under Virginia law
the offense of first degree murder during the
course of a rape does not require premedita-
tion or intent, but it does require malice.
Wooden v. Commonwealth, 222 Va. 758, 284
S.E.2d 811, 814 (1981). Malice may be in-
ferred, however, from the rape. See Wood-
en, 284 S.E.2d at 814. Pruett argues that
the jury should have been instructed on first
degree murder because the evidence showed
that he committed a serious offense, the rape
and murder of Mrs. Harvey, but did not
show evidence of premeditation. The trial
court’s failure to instruct the jury on first
degree murder, he argues, gave the jury two
choices: acquit him or convict him of capital
murder. Because the evidence showed he
committed a serious offense, Pruett submits
that they chose to convict him. This argu-
ment is very deftly made, taking advantage
of the fact that the Virginia Supreme Court
did not, on direct review, explicitly find the
premeditation element. The argument goes
that this is a case under Beck v. Alabama,
447 U.S. 625, 100 S.Ct. 2882, 65 L.Ed.2d 392
(1980), but the argument omits that lack of
premeditation and deliberation was not ar-
gued in the Virginia Supreme Court.

B.

{7} Acloser look reveals the weakness in
Pruett’s argument which ignores the pro-


Na ainsi can acl eA Sas SO nag eee Beeeeeieuoee

cPrea taney

ae?

1566

from the procedural bar under either Mur-
ray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639,
91 L.Ed.2d 397 (1986), or Sawyer v. Whitley,
— US. —, 112 S.Ct. 2514, 120 L.Ed.2d
269 (1992). We first discuss the relevant
Virginia statutes and proceedings in this case
in Part A, infra. We also discuss Pruett’s
claimed constitutional error in that section.
In Part B, infra, we examine Pruett’s claims

“under the standards and the theories he

proffers.

A.

To understand Pruett’s claim, it is impor-
tant to understand the Virginia murder stat-
utes and the context in which the claim was
raised in all of the proceedings below.

[3-5] Virginia’s capital murder statute
provides:

The following offenses shall constitute cap-

ital murder, punishable as a Class 1 felony

(e) The willful, deliberate and premedi-
tated killing of a person during the com-
mission of, or subsequent to, rape.

Va.Code Ann. § 18.2-31 (1982). Virginia’s

first degree murder statute provides:
Murder, other than capital murder ... by
any willful, deliberate, and premeditated
killing, or in the commission of, or attempt
to commit ... rape ... is murder of the
first degree, punishable as a Class 2 felo-
ny.

Va.Code Ann. § 18.2-32. Thus, in Virginia

. three elements are necessary to.prove capital

murder: (1) a murder; (2) during the course
of another statutorily specified crime (here,

rape); and (3) premeditation or deliberation.

If either the premeditation element or the
prerequisite crime is missing, the defendant
is guilty of first degree murder. If both are
missing, the defendant is guilty of second
degree murder. Va.Code § 18.2-32; see 9B
Michie’s Jurisprudence of Virginia and
West Virginia, Homicide, § 20 (1984).

At trial, Pruett’s attorney, Moody Stall-

. ings, proffered an instruction on first degree

murder that read,.in pertinent part:

The defendant is charged with the crime
of first degree murder. The Common-

996 FEDERAL REPORTER, 2d SERIES

wealth must prove beyond a reasonable
doubt the following elements of that crime.
(1) That the defendant killed Wilma Har.
vey; (2) That the killing was malicious.
and (3) That the killing was willful, deliber.
ate and premeditated.

Thus, it is clear that the instruction was
offered on the theory that the jury might
find that the rape element of the capital
murder crime was missing. The trial court
refused to give the instruction because jr
found the jury might find it confusing. The
issue was not raised on appeal to the Virginia
Supreme Court.

In Pruett’s state habeas petition, he as-
serted that the denial of the instruction was
improper because there was evidence to sup-
port his contention that Mrs. Harvey was not
raped. State Habeas Petition at 1944-30. —
He also asserted that it was ineffective assis-
tance of appellate counsel for Stallings to fail
to include the denial of the instruction in his
assignments of error to the Virginia Supreme
Court. Amended State Habeas Petition at
1220. The state habeas court held that
Pruett’s claim was procedurally barred as to
the instruction and found no merit in the
ineffective assistance of counsel claim.
Pruett v. Thompson, No. CL 87-2070 (Cir.Ct.
of Va. Beach, June 14, 1988).

Pruett appealed to the Virginia Supreme
Court. There, Pruett switched his reasoning
as to why the denial of the instruction was
error. -He made the assertion there that he
“may not have had the capacity to premedi-
tate and deliberate” and therefore was enti-
tled to an instruction on first degree murder.
Petitioner’s Brief at 14-16, (App. 1215-17),
Pruett v. Thompson, No. 890908 (Va. Nov.
16, 1989). Pruett also argued that Stallings
was ineffective because he failed to develop
psychiatric evidence that Pruett lacked the
capacity to premeditate and deliberate. /d.
at 24-25 (App. 1225-26). No mention was
made of the claim of no rape he had asserted
earlier in the Circuit Court of the City of
Virginia Beach.

The Supreme Court of Virginia held that
the lesser-included offense claim was proce-
durally barred and that there was no merit
to the ineffective assistance of counsel claims.


1568

ceedings in this case. Because some of
Pruett’s claims are procedurally defaulted for
. one or more reasons, see Part II, supra,
there are only two instances in which we
should review Pruett’s claim: if he can show
that there was cause for and prejudice from
the procedural default of his claim, see Mur-
ray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639,
91 L.Ed:2d 397 (1986), or that he is entitled
to review because the failure to give the
instruction was a constitutional violation that
resulted in his conviction for capital murder
when he is “actually innocent” of the crime
for which the death penalty was imposed, see
Sawyer v. Whitley, —- U.S. ——, 112 S.Ct.
2514, 120 L.Ed.2d 269 (1992). In an abun-
dance of caution, we will also review his
lesser-included offense claim under both the
‘ lack of rape and lack of premeditation theo-
ries.

Ineffective Assistance of Counsel

Pruett argues that he is entitled to review
of his lesser-included offense instruction
claim because he claims his attorney made a
mistake in failing to appeal the trial court’s
decision on the instruction which was of such
magnitude as to constitute ineffective assis-
tance of counsel within the meaning of
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), which
meets the “cause and prejudice” standard of
Murray v. Carrier. It is important to re-
member that, despite all of Pruett’s attempts
to argue the merits of his Beck claim on the
premeditation ground, the instruction denied
and from which no appeal was taken was
premised on the lack of the rape element, not
lack of the premeditation element. However,
we also will examine Pruett’s claim as one
that Stallings should have discovered and
argued the premeditation ground.

{8] Under the Strickland v. Washington
standard, to prove ineffective assistance of
counsel Pruett must show that Stallings’s
performance was deficient and that Stall-
ings’s errors were “so serious as to deprive
[Pruett] of a fair trial.” 466 U.S. at 687, 104
S.Ct. at 2064. An appellate court’s review of
“counsel’s performance must be highly defer-
ential,” 466 U.S. at 689, 104 S.Ct. at 2065,
and the goal of judicial review “is not to.

66d IO CUE N HN NNN IIIT ITT STATIN AT ELIT DAPI

996 FEDERAL REPORTER, 2d SERIES

grade counsel’s performance,” 466 U.S. at
697, 104 S.Ct. at 2069. Rather, we must
decide whether Stallings’s performance “fell
below an objective standard of reasonable-
ness,” 466 U.S. at 688, 104 S.Ct. at 2064,
giving proper weight to whether his decisions
reflected a “sound trial strategy,” 466 U.S. at
689, 104 S.Ct. at 2065.

Failure to Appeal the Refused
Lack of Rape Instruction

(9] A lawyer’s performance is entitled to
a strong presumption of reasonableness.
Evans v. Thompson, 881 F.2d 117, 124 (4th
Cir.1989), cert. denied, 497 U.S. 1010, 110
S.Ct. 3255, 111 L.Ed.2d 764 (1990). In decid-
ing which issues to raise on appeal, Stallings
is entitled to a presumption that he decided
which issues were most likely to afford relief
on appeal. A decision with respect to an
appeal is entitled to the same presumption
that protects sound trial strategy. See 881
F.2d at 124. Stallings felt that his best
chance on appeal was to raise a question
about Pruett’s mental condition and to appeal
the trial court’s denial of his request for a
second psychiatrist.

(10,11) Further, Stallings was no doubt
aware of the Virginia cases which hold that a
capital murder defendant is not entitled to an
instruction on first degree murder when
there is no evidence to support it. See, e.g.,
Briley v. Commonwealth, 221 Va. 532, 273
S.E.2d 48 (1980), cert. denied, 451 U.S. 1031,
101 S.Ct. 3022, 69 L.Ed.2d 400 (1981). Here,
the record is completely devoid of any evi-
dence to support the contention that Mrs.
Harvey was not raped. Pruett relies on a
small part of his confession that he says
supports his claim that he and Mrs. Harvey
engaged in consensual intercourse. That
portion of the confession reads:

[Pruett]:

to go get ready to go and I went to the

bathroom and the next thing I knew I was

up in her bathroom. I said that I was, I

wanted some sex. I had some sex with

her and then I killed her.

This answer was given right after ‘Pruett
admitted that he was the perpetrator and
was explaining in a broad way what occurred

I told Wilma, she said she had

RERESECE SESE ae
eteletateti ete ie tate tale

petit cogent hnamirtieantdicicanaiaisats bee

st:
ve

=<“

ar at Oo DT

mnduct by
*e to the
orial mis-
ive assis-
re to as-
onduct of

merits of
rosecuto-
cept per-
evidence
Harvey.
laim that
or in the
f alleged
was inef-
:d to the
irsued in
district
ject was
* has not
ae Court
here by
489, 106
1986).

3sistance
hase in-
to argue
d an in-
hat they
ing evi-

 ismissed

hearing.
| (Cir.Ct.

leman v.
\, aff'd on
2546, 115
Supreme
tre is no
y a jury,
Virginia
» conduct
the: argu-
‘st unani-
or. Cole-
Supreme
tors had
wt 13-14.

nstituted
J. How-
iat light
Stallings
ore con-
stance of

a9 SF eet ee ee Pit ie eased pen ett ie ie EES miei ;

PRUETT v. THOMPSON

1577

Cite as 996 F.2d 1560 (4th Cir. 1993)"

of Va. Beach, June 14, 1988). The state
habeas court held that the merits of the
instruction claim as related to mitigating evi-
dence were barred from consideration under
the Parrigan procedural default rule.
Pruett v. Thompson, No. CL 87-2070 (Cir.Ct.
of Va. Beach, June 14, 1988).

[21] The district court found that consid-
eration of the merits of the instruction claim
as related to mitigating evidence was proce-
durally defaulted, and, alternatively, the
claim was without merit. 771 F.Supp. at
1444. The district court further found no
merit to the ineffective assistance of counsel
claim because the penalty phase instructions
were proper. 771 F.Supp. at 1449.

[22] We agree with the reasoning of the
district court. The merits of the instruction
claim were defaulted under Parrigan and we
ordinarily would not address them. Howev-
er, the ineffective assistance of counsel claim
is before us. We are of opinion that it is not
ineffective assistance of counsel to fail to
offer additional or different instructions if
the ones given by the trial court are proper.
This question is easily resolved here because
the instruction given was proper. See Briley
v. Bass, 750 F.2d 1238, 1242-44 (4th Cir.
1984) (approving almost identical instructions
and finding that “all the evidence” language

informs the jurors that they must consider
mitigating evidence), cert. denied, 470 US.
1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985).

We therefore are of opinion that Pruett is
not entitled to a hearing because both his
ineffective assistance counsel claims and the
underlying claims are without merit. In ad-

S.Ct. 745, 9 L.Ed.2d 770 (1963) ], or the
related factors set out in 28 U.S.C.
§ 2254(d).” (citations omitted)). Pruett
points to the fact that he was not allowed to
question Tsao about conflicts between his
habeas hearing testimony and his earlier
statements to Pruett’s habeas counsel, appar-
ently arguing that the state hearing was not
full and fair or complete. A review of the
record reveals that this contention is without
merit and not supported by the facts. See 2
Hab.Tr. at 34-36. We therefore find no mer-
it in Pruett’s contentions, and he has not, in
any event, made the required showing that
would entitle him to a hearing.'?7 We there-
fore hold that the district court did not abuse
its discretion under 28 U.S.C. § 2254 by fail-
ing to provide Pruett with an evidentiary

hearing.

V.

We should add that the length of this
opinion is due, in no little extent, to the
numerous points raised in Pruett’s_ brief,
many by allusion and indirection. We are
mindful of our obligation to discuss all of the
contentions in cases such as this which have
arguable merit, and we have done so.

We are further of opinion that Pruett had
a fair trial in every sense of the words, and
as well he has had extensive appellate and
collateral review of his conviction.

The judgment of the district court is ac-

cordingly
AFFIRMED.

dition, we note that Pruett has not alleged
any additional facts that would entitle him to

a new evidentiary hearing. See Poyner v.
Murray, 964 F.2d 1404, 1414 (4th Cir.), cert.
denied, — US. —, 118 S.Ct. 419, 121

L.Ed.2d 342 (1992) (stating that a habeas

petitioner is entitled to an evidentiary hear-
ing in federal district court only if “(1) he
alleges additional facts that, if true, would
entitle him to relief; and (2) he is able to
establish any of the six factors set out by the
Court in Townsend v. Sain, [372 US. 293, 83

17. We also agree with the district court. that
Pruett “has not stated what non-cumulative evi-
dence he would or could put on, if granted

1451.

another hearing on his ineffective assistance
claims in [the distnct court].”". 771 F.Supp. at


yee yfield

tei

‘August 47:

¥» WRI He one

Accomack Woman's
~ Club. Offers Fine
-~ Musical Program

October 21

: Hits Tree "Held In Parksley Church

The October meeting . of — the
Woman’s Club of Accomack Coun-
ty ‘will be held in. the Parksley
Methodist Church. on’ - Saturday,
October 2ist; at 3 p. m.- ;

i Mes. © Albert Dobson; . music

hag arranged a very

mty, presided wat the Acc
county Circuit Court,’ Tuesday,
‘ednesday, Thursday and Friday,
aa Judge Jeff F. Walter is pre-

following artists: , q

Mrs: Miriam | Vineent, “Snow
Hill, Md., -soprano; Mr. -Themas
| Siuowski, Wisharts Point, Ya,

‘Awiding at the Princess Anne Court! tenor: Mr. Chaties Showatd, Chin-

‘ar. Judge Kellam. coteague, Va, organist, Mrs.
Alfred Rayfield, Negro, Of} paiph Mackay, Craddockville, Va,
Parksley; who stabbed William). jinist; Mrs. Alvin Borum, Onan-
West, Negro, to death in cock, 'Va., ‘accompanist,
atter’s home én the morning of}  qy, meeting wilt start promptly
was sentenced to death)»: “three ‘o'clock: All members
‘or murder in the first degree.| and guests are urged to be on
West was: unarmed when Ray-j time go ag not to have interrup-
jeld entered his house and arous-|
ad him from. sleep. West ordered
to leave the premises
nnd was then knifed. He stag
wered - from his home and’ fell

pdead inthe -yard.” Rayfield was
‘Continued on page 4

97 Year Old.
Woman Dies At
co Chincoteague

tions.

Shore Poultry ..
Laboratory To Be

The State Board of Agriculture,
meeting in Richmond October 4,
authorized the purchase of the
land and building now occupied by
ithe “State Diagnostic Laboratory
iat Accomac. The board told the
| cormmtissioner to go ahead and
spend a $5,000 General Assembly
| appropriation for the purpose.
The prozerty was developed by
4 the Shore Improvement .Corpora-
ition, a group of Eastern) Shore
poultrymen, in an’ effort ‘to get
the ‘laboratory: here.) > ‘
The board: Also authorized the
{commissioner to ask for bids on
la new $45,000 diagnostic labora-

tory at Warrenton.

‘Opening Concer},
Wins Audience’
‘Warm Welcome

Mrs. Elizabeth’ Walker, widgw| "~~ —— sand
of Mr. Asher Walker, died at the] On Friday, October 6, the 1950-
home of her son, Mr.. Dave Walk-| 51 season of the Community Con-
er, Chincoteague, Saturday nea cert Association series opened with

: she’ liv: Dorothy Sarnoff

a

tions during the musical nelec-}

Purchased By State)
a |

_ new industries to the Northampton

ee ree a

.d Nations Flag To Be Presented Va. A

| United Nations Flag

; | ciation

oe no Set Sc te ee : iy | Vegetal

ae | :

The United Nations flag te be presented to Accomack Counts! Auto
and displayed at the Court House, Mrs Floyd V, Matthews, County |
Home Demonstration Chairman, Who is holding the flag, will pre-

| erat it on United Nations Day, Odtéber 24, at 1:30. \p. m. in front of!
the Court House at /

Aceomac,

Exmore Business i
Look Forward To

~ More Expansion |.

vines ing stag
t very pa
jthe f

Former. Chincoteague |?! »
“Woman Killed ‘ort.

joft. :

| ro De.
Hatold. W.--Griest. Comes In |treated
“Contact With High Volt- |miaor
age Line +8

Although Exmore businéss men
are outspoken in ‘their belief. that Husband Of

they live in an outstanding progres-
give and. forward-looking — town, |
they ave no intention of becom:
ing self satisfied. Monday night |
the. Exmiore Business, Men’s Club,
Will’ hold another in”a series
meetings st which plans-ere be-
ing made to continue ‘the town’s
development. te. ee

2
“LA Chaster workman was burn- ii
Libeediie ao Giotto Posidet | eae aaa, ak Wonk |
Hapded Watedlly the aovubers Will erate ceucce, Clapiiout, TS.
check progress on plans to bring t As, ae erbiiae Thats &
fhe vietim, Harold W. Griest, |
50, of “1100 Parker st, died |
| September 25 at 1240 a m. in}
Crozer” Hospital, of burns © suf-)
fered when he eame in contact |
| with a high yoltage line.
' A company | spokesmah
that Griest,..an electrician
125 years of service at the “plant,
had been assigned to work on a
pariel board which had been.¢!

vunty town, They ‘will also do
“eather work on a brochure ex-
tolling Exmore’s virtues as -
plant site, When ‘finished — the
brochure will be, directed to lead-
ing business firms and industrial
organizations throughout the court
try.

with | Mr
| town
pilet
wont


\ A
'Pre-Nuptial
4 Parties For Miss ee neds Clee ok Pedae:
-} teague, is visiting Mrs. Lena Wal-

«| Emma Sue Hubbard | ts

On August 4th Mrs. Wise Har-! oe :

f=, mon and Mrs: R. C. Paylor de- | , co hepsae topes Bi eke tac

7 \ightfully entertained at a miscel- i bg betes
laneous Shower in the home of ae:
Mrs “Harmon, ni honor of Miss} Mr, and. Mrs.
Emma Sue Hubbard, whose mar-| and son, Jimmy,
riage to Mr. Virgil Deitrick Tay-; at Silver Beach.
P tor, Jr. of Rue, Virginia, will take! priends wish Mra. Harvey Boole
: deg tor peers ne ee who is in the Memorial Hospital
the Melfa Methodis' ure e! pane,
house, wha © Deeiutifall“Becarsted for treatment, a speedy wes ery
with summer flowe-s. Contests ang, Mr. and. Mrs. Dunlap Eichel-
games were enjoyed and prizes! berger, of Philadelphia, are spend-
‘ were given after which the bride- ing sometime at their summer
home here.

- elect opened many lovely gifts. . ‘
Mr. Roland Bradford, who - is

Refreshments. consisting of ite

«eam, fancy cakes, mints and) stationed at Noyfolk, is spending

nuts were served. . There | were/ sometime with his parents, Mr.
and Mrs. Roland Bradford.

about forty guests present,
Mrs.’ Avery Lewis, of Meltfa,! we are giad to hear that Mrs,
Maggi> Zember, who is visiting

nd Mrs. Joe Hopkins, of Nassa-
wadox, delightfully entextained in ker daughter, Mrs. George Spenc-
er, Sr., is much improved. |

the home of Mrs. Lewis at a
tridge .dinner, Tuesday evening; y :
st i f “{” Mr. and Mrs. Cecil Lingo and
August 8th in honor of Miss Em daughter, Buxanne,’ Mr, and Mrs.
| Ptoyd Spence . and, daughter,

ma Sue Hubbard, whose marriage
to M= Virgil Dcitrick Taylor, | Floydette, spent last week at, Silv-
| er Beach, J

will take place on Saturday, Sep-
tember 2nd. At 6:30 a delicious
; jdinner was served. Each table was [ ‘We are glad to report that Mr.
Exmore, Va. announce the decorated with a miniature bride’s | Lestie Reiter, who has been a
» Mr. Charles Ward, son of cake with white satin ribbons for | patient at the Memorial Hospital,
lown, on Tuesday, August 8,'each guest to pull. At the end of | Nassawadox, is home and is im-
ev. John A Ditto eran Chae ribbon a token was found | proving.
re ory tery args: Wark j which told yr aeere ‘Des bemied| Mrs. Alice Marion, Mrs. Iva
urks, of Belle Haven. suest. After dinner bridge was \racuer Mi vated Mire: Seana
feces bt! heel digs aadditi ye Bundick’ and daughter, of James-
¢, and ice water A Biba Micedeyy Eitrrrneig ra Sac pet men bcd agama
women greatly appreciated cate * Haan market Hi atohined } Knight . of Messongo, Mr, and
sresence of their zons leader, ere ‘Saie coe piles pemteny |Mr. and Mrs. William, M. Holly
Macy Wise, of Craddockville mis abeth Mei Nan Gu? | of Makemie Park, Mrs. Ira White,
ieee president of the Badia ereis quce waged Nas Pen ene Norfolk,
crore Disthict, Mra ptobe reo ct ee ae pre ee gat and, MED ca eta, OF FMRI)
Shore non. ot; Kelleg., Mri, 0 wants 2 Wet Due DET Tae [wetted Mre Viena, Wallabe’ Sun:
son brought a mossage re eana, Per Floyd, Melvin Wie day. Mr. and Mrs. Irving Jones,
ing the World Federation Of) and Ralph Parks? «9 y paesioete were callers Sun-

odist Women. Miss Peggy Anne Ames es rg
Mission Study .

a de
mes  Bundick
pent last week!

lp 4) :
elas

rf ie
sa a

4

oAE

t

4
t
t

occa

rse racing W
day, Wedrr

and on. Friday
uutomobdile

« delightful and inSspuring ev thigh seore prize and Miss, Marie}
>: of sory Pape rb ving | etna, low. Another prize |
cht to a close by the singing was won by Miss Nancy Guy and | icni i
sless Be The Tie that Binds." |) lovely guest prize es premeat Picnic At Zion ie
sien Was 2n enriching ©X- ed to Miss Hubbard... : é ee Church Aug. 23
ace ,for everyone ap atten-|° Mrs. Roy Bull, of. Melfa, and) ~~ mere re
oe: An oceasion that will ting t Mrs. Graham Stewart, of James-, There will be a Mission Study
in the memory; an occasion \iie entertained in the home of (Picnic held Wednesday, August
sent the ‘members of the two! yr Ball at a bridge breakfast, 23rd at 3 o'clock at Zion Baptist
org2nizations out determ'® | Thurstlay morning at ten o’elock, Church for all young people’s or-
reach higher goals for anoths; ayoust 10th in honor of /Miss ganizations. “Sunbeams, RAs,
‘ar. !Emma Sue Hubbard whose mar- G. A.’s and Y.W.A’s in Group 3
_ x ‘riage will take place September 2. of the Accomack Baptist Associ-
ns Shaping j The house was beautifully decorat- ation are all urged to attend.
Keller Fair | with ‘gladioli and summer flow- |, , vom eee
p aS j A 98" After breakfast was served, King And ;
ning Aug. j bridge was played at five tables. !
ects! | Those playing in addition to the: © Quee Of Oyst¢
Continued from page 1 guest of honor were: Mesdames! Carnival Crowne
tuke place | George Mapp, Charlie Walters, |
and Thurs-| Pete Copes, Jim Boggs, Bailey Be-/ Continued from page 1
nd Saturday tote, Frank Bull, Emmet, Taylor, | ‘ ; : :
will racing. Jr., Jack Boggs, Forrest Haroon of Mrs. Delbert Daisey.
- night wrestling contests; mn, Olin’ Elmore, Joe Hubbard,’

“i Lewte will be! Will -Turtington,- Avery Lewis, Pe ere Saye:

be

»
ety — Ta” PY oe 7 Se

Pe Te Wn a 50 ge ee

;bama Polytechnic ~ Institute and
jthe Southern Baptist. Theological

ya graduate of Western Kentucky

BY a et ty ee) ctw oI Ss

j > Sa
iy

Clement Takes Up
Work At Cheriton | ©
Rey. John H. Clement, who re-
cently accepted a call to the pas-
torate of Chetiton Baptist Church, | yy:
has arrived on the field and taken { aie pry oe
up the work. He was bom at bthe lette® is 3
Bueng Vista, Georgia and was ed- | *
ueated at the North Georgia Mili- |
tay College, Dahlonega, Ga., Ala- Mr. Secretary oy

{Dear Sirz : A
through the Enterp

foremost. me
of his da
follows:

Onancock, Va.
‘Aug. 29, 1882

I saw
a premitim offered to the boy 4
girl” undee fourteen years of ag
who wovld in the heatest penma
ship address a letter to you.

Not présuming to be the forty
nate one, yet I will hope go 4
and will. de my prt any how,

We have all been looking fo
ward t6 the Fair,with greate.
anticipations. of. pleasure; it
there we will age the handwork
our friends and acquaintances 4
the “Eastern “Shats. of Vaz; alse
fine specimens of «cattle, fovgy
vegetables, &c.” . i

Seminary. He served in the army
in World War IL

Mrs. Clement, the former Miss
Inez Haley, of Scottsville, Ky., is

State College, Bowling Green, Ky.,
and received a Master’s Degree in
Religious Education from the
Woman’s Missionary Union Train-
ing School at Louisville, Ky.

Negro Nursing
Grudge Fatally Stabs |
Unarmed Man | :

oi MARE i The most beautiful: feature

* Continued from page 1 }
of his house and fell dead in the jthe Fair is the. Base Ball Matc

yard. An ¢xamination ‘revealed |20d I hope there’ may te mage
that the knife thrusts had gone {Strangers to witness it, so as Be
through his heart and the blade }confirm them that our coungy

had broken and been imbedded in| Scntlemen and boys are but litt
a rib, jif any, behind the members of tie

Rayfield ‘threw away what re-| Clubs in the surrounding citi
mained of. the weapon and was a!-| The hors> races will be anoth®
rested. shortly after in his sis-,8Ttat Source of pleasure to mar
ter’s home by Sheriff George | the orations, and numerous ot
Hope and Deputy Sheriff Warner |things I will not ‘mention. ;
vis, | Coramonwealth’s Attorney! I am certain it will be a grams
E. Almer Ames’ and Dr. J. .\#ffair, and ~highly enjoyed :
| every one, ti
I wish you the greetest

a Very, very pleasant time.

Your hopeful little friend,
Chas. H. Mills

‘

'DeCormis, Coronar, questioned the
witnesses at the scene. These sup-/
ported the story that Rayfield "4
Wated West without reason.

Dr. J. A. Chapman

To Preach On
Keller Charge |

t
+
4
;

me: ¥
5

}

Four Virginia Girls
Compete For Cro
At Crisfield,

Dr. J._A.. Chapman, District yas sere saree

Superintendent. will preach on) Continued from page 1
the Melfa - Locustville - Keller’ Under the law, it was necess
Methodist’ Charge on. Sunday, to vote on the question of st
+ August 20. The schedule is as fol-| ping the sale of beer and w
Jows; Keller 20:00 a. m.: Melfa, as well as on the question of
11:15 a. m.; and Locustville, 3:00! lowing the sale of other alco,
p.m, “Christ the Savior” will be’ beverages, sold by the A. B. ee
the . subject .of Dr. Chapman's! Store. Judge Jeff F. Walter & :
sermon. The public is cordially’ May 24 ordered an election al
invited to be present. | having been presented the 1

: B ition. It was ordered and advye:

vas reuired by Taw, He ‘set
‘ sae | election for Tuesday.-August

Mr. and Mrs. William Watson,’
of — Parksley, ’

This is the second effort
announce the close the store since it was o
‘birth of a son at the Memorial’ ed, as required by law. He sct
Hospital, Nassawadox on August’ been held shortly after the
14th, weight 7 pounds and 7 ounc-. was opened at Chincotesieaw
és, Mother and son are getting which was also a vote for ramen
along nicely. - {tion of the store, &

t
}
{

and Stephen Hulsey, son of Chief

Daisey, |

ie ae


“eletirocyted Vi

A a a BL TS Se

ee Avs hg u 4) ry
building were drawn by architect
A. J. Labin, of Norfolk, wha:also
drew plans for the new wing at.
the Northampton-Accomack Hoe}
pital, at Nassawadox, whieh sang
completed some years ago, The
City Construction Company is now
engaged in building the ‘new
Health Center Building at Nassa-
wadox, ae er

Governor John S.
Battle To Attend
: Keller Fair

Officials of the Eastern Shore

* Agricultural Association, — better
known as Keller Fair, announced

on Tuesday that they will have

two. distinguished visitors at the

fair this year. Hon. E. J: Robeson,

Congressman from the First Vir- , € mn

ginis District, will attend the fair} Painter’s first town’ election

on Wednesday, August 30,: Hon{aroused more than usual interest

John S. Battle, Governor of Vir-|by having ten candidates seeking

’ ginia, has notified the fair of-j|the town’s six council posts. Mil-
ficials that he Will ‘attend the| ton .T.. Hickman led the ticket for

fair on Thursday,’ August 31, {councilmen while thre. of those

‘Visitors to the fair on these two jelected won by two votes. Others
days will have'the opportunity of [elected were L. W- Johnson,’ Wil-

meeting them. "* toi liam T. Gladden, J. Edward Bun-

: ‘ dick, : Walter S. Elmore, and Gar-

AN egro Narsing ; : peed pepe

“Continued on page
Sha haps ¢  |Milton Stevenson

After 50 Years
©:0- Milton Stevenson, of Cape
Charles, was retired by the P. R.
R. this week after working for
‘}more thah 50 years with the com~-
‘| pany. He recently. ‘received a 50

year gold service pin. from. “the

_ Alfred Rayfield, 85, Negro is} company. He started working for

in Accomack County jail charged} the P. R. R. June 14,1900 as a
with murder. Forcing his  way| Station helper at Keller. He has
into the home. of . William . West, held successively the positions of
50, Negro of near Parksley, carly| Telegraph Operator, Train. Dis-
Wednesday. morning, he fatally patcher, assistant Train - Master
, tabbed West when ordered to| 2nd Yardmaster, the position he
& ve the house. Rayfield was ar-| Ys filling at the time of his_re-
Be at: his ‘sister’ home | tirement. He is the son of the late
‘ ; 2 Dep-| Mr. and Mrs. William B. Steven-
Lio elieent weer tne Fe ban and resided at Onancock and
West, a house-mover and rig- Atcomac PRX oot § eo faye
ger, was well’ respected in. the}/™&"

ounty. Rayfield was a good. tim- Fs 5

ber uhandibar Tah ant wemilies Tom 8 Cove. Light

position <which had brought fro- Hit By Lightning

quent arrests, for felonious as- H. Been Repaire d
There is a new light on Toms

saults and he had nursed an un-
founded" grievance against West-

Cove, Chincoteague Inlet, it was
announced by the Coast Guard.

A

Timber Worker Kills Man
When Ordered To Leave’
Latter’s Home —

rested later

When-he entered the West home;
Wednesday morning, “West” was
just getting into his clothes a
ordered. the quarfelsome man_ to
leave the ‘house, Rayfield’s reac-
tion ta. the ‘order was to pull a
loog ttaded. knife. and plang’ it

ice inte the chest of the (un-

{ mon. West staggered. out?

there was darkness at that famil-
jar’ point,

and put in pew apparatus to
| ply the “illamination, ©

sup-

Continued on page -8 <<.

rgitiia (Accomaéic) on

Te SP Ry

i

5 %
7 = 4
? arg 3

8. 43 Bus:

abe iastae

ied Oy >
5 a

Oe Sy et eS

at,

TDN te meaty ech

of ais” 1950
Kiin ‘Cross-

Mr. and ‘Mrs. Kenney were tak- |

en to Memorial. Hospital in) an
Exmore Fire Company ambulance
where it was found Mr, Kenney
had .a’ broken’ wrist and ‘minor
bruises, while Mrs. Kenney
had received a severe shock. They
are still in the hospital and doing
very nicely, thank you. But the
Oldsmotile will. never ramble
again off the ‘straight and well-
marked highway.

Firm Fined For
Violation Of Pine
: Seed Tree Act

Judge W.-F. D. Williams, Trial
Justice for Northampton County,
fotind the Ly R. Barnes Lumber
Company of Belle Haven, Virginia
guilty of violation of the Pine
Seed Tree Act following a hear-

ing held August 9th at’ Eastville.

The Barnes Company was assess-
ed $70.00 plus costs for violation.

“Mot the law on 7 acres of. land

owned by Marie Holland of Cheri-
ton. eRe eos | ;

Littleton H. Mears, -Common-
wealth’s Attorney for Northamp-
ton County, brought the case for
the Virginia Forest Service. Con-
clusive evidence given by’ lecal
forester proved that the land was
eut clear of nearly ali pine trees
measuring 14 jinches or Jarger in
diameter at stump height in viola-
tion. of the act. Four conebearing

loblolly. pine trees of /the above |
measurements are required to bej Cinb held x

left on each acre, An assessment
of $2.50 per tree was made for.
failure to comply. The, Pine Seed i
Tree Act as amended July 1, 19 0

has raised this \ assessment. for:

violation to ‘$10.00 per tree with-'
out change in measurement.

Peery a0 }
Painter Firemen -

Move Building

For Firehouse

Painter firemen will soon have ;

a new firehouse to house their
engine. Early this “week the

moved to a/lot belonging to Dr:
W. L. Cosby across the road back

being niade, Painter is the-baby
fire company on the Shore.
* % gOS . ne

:

ean Legion Post No. 159, Chine
teague, presented the “King and
Queen of the Oyster Carnival.
Saturday evening, August 12th. .

As Master of Ceremonies, Vin-
| cent» Tolbert ‘called theenames of
the 29 contestants in the Popular-
ity contest, each child came for-
ward to be presented to the audi-
ence. After the children were giv-
ven gifts, William Elliott, . Comi-
_mander of the Post crowned Stati-
ley Lee Cherrix, son of (Mr..and
Mrs. William Cherrix, King of the
carnival, and Mrs, Joan » Nolan,
president of the Ladies’ Auxiliary,
crowned Margaret Ann Wessells,
daughter of ‘Mr. and Mra. Harry
Wessells,- Queen. The King © and
+ Queen received © beautiful silver
, trophies to commémorate the oc-
casion, <4 “re

The other contestants were?-

Second—Joe Scott Baker,-son of
Mr. and. Mrs,-John Joe’ Baker,
and Linda Matthews, daughter. of
Mr. and Mrs. Elmer Matthews, ©
© Third—Jo Sué Jester, daughter
of Mr. and Mrs» Henry Jester
and Johnny Stephens, son of Mr.
and Mrs. Earl Stephens. - 2

Fourth—Brenda Joyce'~ Daisey;

Continued on page 8

‘Atlantic Ruritan

» Host To Brothers rf
_ From Pungoteague

The Atlantic District °Rurifan
egular meeting at New
Church’ Fireman's Hall. Wednes-
day, August 9th and were enter-
tained by the ladies ‘of. New
Church Community, who served a
delicious stpper. The club -was
honored in having © Pungoteague
Club meet with jt as a guest.
Business discuased was the Boy
Scout home which has’ been
chased from
Board and recorded in “Accomack
Court House, Members reported
on talent planned for Keller Fair |
Program also there was a report
from the sick committee.
the business» session, Edgar »Kill-
mon. introduced. Dr. Pierce S..¥1-

The old light. was. struck. by| Henry T..Martin «storehouse, next! lis of Waynesboro, Va., as guest
jlightning ‘several days. ago. andjto the ‘A. T. Hickman ‘store, was , Speaker. Dr, Ellis gave a very in-| est

iteresting talk onthe ortd .of

}

| Today.”

“Ww.

‘Henry A. Wi

se, of Pungoteague
Club, rae Ns

aan

the

Tra

Eig
Vir

pur-j Bio
Accomack ~ School | the

tio

ing
sho!

After ithe

tur
ide:
lei

ing
ed

3

No Fe!

The Coast Guard repaired. the! of his home. The building is now | The club osang “God Bless | hones
| Structure that supported the light} being remodeled ‘and additions are | America” and was dismissed by | 0

alstg é

Pre


glave nnUBEl ;
= AD ES lo AN her OY + = 1 2
(arthur), black, hanged Bowlir
Naat suid ‘7 aL

ls Green, VA 6/3/1857

of. :
“The negre ae Reuben was tried for ‘an , at
| tempt to murder his mistress Mrs. "Clift: near |
Port Royal last winter, The tes: imony wits |
full and complete, ‘including. his own confession ;
that he struck-her with an axe four. times ~or
‘the head. and declared she would not scold him
“any more. He was centenced to be hung on
the bth, of June “within the walls of ‘the Jail”
as the law. directs. While the Presiding’ Juss
‘tice pronounced the sentence of death, the pri-
goner seemed entirgly unmoved and unconcern-
red. Ho was valued at $1.000.. r

ee

rai “Annan, thesslave sentenced ‘tobe ‘hung
nt the April term of Caroline Court for attempt.

ing to take the life of Mrs: Clift, stificred the
full penally of ‘the Law 10 the J ail. at Bowling

| Green on Friday befare ee ee ee

ee ae _—— ‘

fremerickS ©

Te. CMWVWWADE AN

NAME

John Richardson alias houis Napoleon

PLACE — CITY OR COUNTY

City of Riclumord VIRGINIA

DOE & MEANS

822-1802

3O Fruit Venger Bichmond Va.
Counterfeiting

SYNOPSIS

QRItEy rt MOLT NG EL VAS LUTAL Vy te 14/17 Z. VEMELI4

Confederacy Wa 1861 and this 13 Said To be the oily Mega! eraechian
a tht} sf This Was "ed sre of Vi a ise 7 Menniigasd dts

Special Mote + Actount State that €xecution took place o'r Same Sife
where two pirates tasmed heed ard Clements were €x-
Citted They att ttherwise Unto af this Sime.

TRIAL

APPEALS

LAST WORDS

EXECUTION

FRANK NEWTON OFFICE SUPPLY—DOTHAN


Reassign location +o City of Portsmouth.
pec Richmond Dispatch 7(24|64.

RIDDICK, Peter

"Norfolk, Va., July 03, 1869-Peter Riddick, for the murder
of Cortielius Hayes, a young farmer, on the “hightay

January last, was hung today at 1 o'clock in the jail yard,
He made no confession,."

OONSTITUTIONALIS!, Augusta, Georgia, July 2), 1869,
No appeal

522 115 SOUTHEASTERN REPORTER (Va

was dragged several times on Sunday and
Monday following the homicide, but nothing
was found. On Tuesday a well digger used
his scoop in the well and brought up a pistol
which was put in evidence at the trial.
When the pistol was shown to the accused,
Killmon, he was asked whether that was the
pistol found in the well, and said, “T ean tell
by the number,” and he looked at it and
said, “That is the pistol.” Ile also said, when
Leroy Killmon handed him the pistol, “Ll saw
the safety was on.”

When the pistol was shown to Mrs, Belote,
the accused, she remarked that if she did not
“set out of this’ it would kill her.

The accused, Killmon, met John S. Wise,
a commonwealth’s witness, about two wecks
after the homicide, and told him he under-
stood Wise had made a statement tending to
implicate him in the murder which was a lie,
and added:

“You are half dead now, and, if you fool with
me, L will send you in the house on a streteh-
er,”

The necused, Mollie V.. Belote, testified that
her husband, the deceased, left the house
about 7 o'clock p.m. with the coal scuttle,
and said he was going to get a scuttle of
coal, and as soon as he got it they would go
over to her mother’s; that he did not return,
and she sat in the house and read until about
9 o'cloék, and then turned the lights off to
rest her eyes; and that about 15 minutes or
more after the 9:30 train passed she turned
the lights on and went out to get the coal
and found her husband lying on the ground
near the coulhouse, with the coal (scuttle
near his feet filled with coal, When she put
her hand on his forehead, she said, “Oh,
leonard, is that you?” and began to seream,
and that Peyton IL, Killmon rushed up and
said: “Where is he?) Where is he?? And
she said, “Some one has killed your Uncle
Leonard,” She denied that she said to Mrs.
Ruth Wise, the next day, that if she did not
“get out of this’ it would kill her, and did
not remember saying, “I struck at him twice
and missed him.” She further testified that
she did not hear a pistol shot that night.

The accused, Peyton If. Killmon, testify-
ing as a witness for the defense, undertook
to nccount for his movements after his ar-
rival at Tasley until he met his wife at the
9:30 p.m. train and took her to the home of
his. grandmother, Mrs. Jane Belote. Ile
claimed that he remained there until about
10 minutes after 10, when he heard the
screams of the accused, Mrs. Mollie VY. Le-
lote, and ran over to her house and found
her alone near the body of her husband in
the back yard, He admits being at the home
of the deceased at 6 o'clock, but denies that
John S. Wise saw him there in conversatton
with Mollie V. Belote about 10 o'clock.

If the statement attributed to Mrs. Belote,

€=—For other cases see same topic and KEY-NU

the aecused, that she “struck at him twice
but missed him,’ and her order to ‘‘go,” be
true, she must have had a partner in the
erime; and the presence of Killmon at the
home of the deceased, in conference with
Mrs. Belote, just before and at the body of
the deceased just after the outery was given
points to him as the man,

While there are sharp conflicts in the evi
dence, we find nothing in it to support the de
fendants’ theory of suicide, or that points te
any person other than the accused as the
perpetrator of the crime.

The jury saw and heard the witnesses tos
tify, and their finding on the facts is con
clusive with us. The verdict was supported
by the evidence and approved by the trial
judge, who also saw the demeanor of the
witness on the stand; and the judgment
must be aflirmed.

Aflirmed.

FITZPATRICK v. COMMONWEALTH.

(Supreme Court of Appeals of Virginia.
Jan. 18,°1923.)

{. Indictment and information ¢=»21—Indiet
ment need not show date of filing.

An indictment under the omnibus form pre
yided for by section 7 of the act for violation
of the liquor law need not show on its face the
date or the term at which it was found; it be
ing unnecessary for an indictment to show such
date even where the statute of limitations is
material,

2. Indictment and information g=>121 (4)—Bill
of particulars that did not give date of sale
of liquor or purchaser’s name held sufficient.

A bill of particulars that did not give the
date of alleged sales of Jiquor or the names of
the purehasers held sufficient, though in the in-
terest of justice the attorney for the common
wealth should give the accused information
needful for his defense where available.

3. Criminal law O=>1159(4)—Credibility of wit-
nesses is a question for jury.

Since the eredibility of witnesses is a que®
tion solely for the jury, a verdict, though based
on testimony containing conflicting and con
tradictory statements, cannot be properly dis-
turbed.

Error to Hustings Court of City of Torts
mouth,

One Vitzpatrick was convicted of selling
whisky, and he brings error. Aflirmed.

Rt. IL. Bagby, of Portsmouth, for plaintif
in error.

John R. Saunders, Atty. Gen., for the Com
monwealth.

BURKS, J. The plaintiff in error was com

yicted of violating the prohibition law (Acts
_

IMB ER in all Koy-Numbered Digests and Indexes

5, ARORA, |S RRL ALE AAI 8 EINER

Va) RIDDICK v. COMMONWEALTIL 523
(115 S.E.)

1918, e. 888) by selling whisky, and sentenced
to confinement in jail for three months and
to pay a fine of $100.

{1] The indictment was in the “omnibus”
form allowed by section 7 of the act, and
charged the commission of the offense “with-
in one year prior to the finding of this indict-
ment.’ It did not show on its face the date
or term of the court at which it was found,
but the record shows that it was found at the
February term, 1921, of the court, There
was a demurrer to the indictinent, and the
ground of the demurrer was that the indict-
ment did not show on its faee the finding of
the indictment within one year (the period
of limitation) from the time of commission
of the alleged offense.

There was no error in overruling the de-
murrer, The record showed the date of
finding of the indictment, and that is all
that was necessary. It is not necessary for
un indictment to show on its face the date
of finding, even where the statute of limita-
tions is material.

{2] The plaintiff in error called for a bill
of particulars, and the prosecuting attorney
furnished the following:

“Bill of Particulars.

“(1) Selling ardent spirits on December 31,
1920;

“(2) Selling ardent spirits during the month
of December, 1920;

“(8) Selling ardent spirits within one year
next preceding the finding of ‘this indictment.

“As charged in the indictment.”

This was objected to as insuflicient, but the
objection was overruled and exception taken.

In Barker v. Commonwealth (No. 71) 133
Va, —, 112 S. BF. 79S, it was held that it was
not necessary to give the date of a sale of
liquor under the prohibition law, nor the
name of the purchaser ; that if the facts stat-
ed in a bill of particulars would be sufficient,
if stated in an indietment, the bill is  sufli-
cient. No error, therefore, was committed
in overruling the objection to the bill of par-
ticulars. It may be said, in this connection,
Without. special reference to the case at bar,
that, while the punishment of crime is a ne-
cessity, the commonwealth wishes to give to
every one accused of crime a fair and impar-
tial trial, and fw notice and a fair oppor-
tunity to meet every charge preferred against
him, There is no desire to take any one by
surprise, or to leave in doubt any of the
particulars of the offense which it is neces-
sary for an accused to know in order to con-
cert his defense. In the prosecutions in the
trial courts, the attorney for the common-
Wealth represents the state in this respeet,
and as such representative should give the
accused the information needful for his de
fense, where available, and otherwise assure
to him a fair and impartial trial.

hein

As said in the Mohler Case, 182 Va. 718,
111 S. E. 454: :

“The attorney for the commonwealth repre-
sents the people of the state, who in their
collective capacity, are just. as anxious that
innocent men shall be acquitted as they are
that guilty men shall be convicted. The prose-
cuting attorney is selected for the purpose. of
representing this sentiment.”

[3] The only other assignment of error is
that the verdict was contrary to the law and
the evidence. The sale of the whisky within
the year was abundantly proved, if the jury
believed the testimony offered by the com-
monwealth. The witness for the common-
wealth made many conflicting and contra-
dictory statements about different events,
and there was some confusion about the
exact dates of the sales testified to by him;
but he fixed no date more than a year before
the finding of the indictment. However this
may be, the credibility of the witness was a
question solely for the jury. They believed
him and found the aecused guilty, notwith-
standing the testimony offered by the defend-
ant. Under these circumstances, the verdict
of the jury could not be properly disturbed
either by the trial court or this court. The
judgment of the trial court must there-
fore be aflirmed.

Aflirmed.

RIDDICK v. COMMONWEALTH.

(Supreme Court of Appeals of Virginia.
Jan. 18, 1923.)

1. Criminal law @==1144(8)—In absence of
contrary showing, presumed that striking of
jury was done alternately.

On appeal from murder conviction, where
the record showed that the commonwealth and
accused each struck from the panel four jurors,
in the absence of evidence to the contrary, it
will be assumed that the striking was done al-
ternately.

2. Criminal law ¢==1035(6)—Objection to man-
ner of impaneling jury cannot be first urged
on appeal.

In view of Code 1919, § 4895, providing that
no irregularity in the impaneling of jurors shall
be cause for setting aside a verdict, unless ob-
jection thereto was made before the jury was
sworn, an objection to the manner of impanel-
ing a jury cannot be first urged on appeal.

3. Criminal law ¢=m-tti4(1)—Appellate court
disposcs of cases on record, not on state-
ments in petition.

The appellate court must dispose of cases
on the record before it, not upon statements ir
the petition, or of counsel in open court not
sustuined by the record.

Error to Circuit Court, Warwick County.
Sam Riddick was convicted of murder,

and he brings error, Aftlirmed.

€or other cases sce same topic and KEY-NUMBER in all Key-N umbered Digests and Indexes

© bees Rowe eeeee ©

/

uu

ai

SCHCOL OF

=}
ad
a
=
ti
i?)
ws
gt
4
3)
a
A
Oo
poe
je)
Q
tan
~~
Ww
Nm
we
oO
—
wo
Q
cr
ve
o
Q
&
16?)
2,
<4
fe
we
0g
ed
pe
be
eb)
“_
:
ks
©
yy
TZ
ON
ry ;
NO
VL
:
<<
Feed
\o
ie)
Ww
e

Joseph Robinson (Con't)

A plaid, red coat worn by vargaret at the tine of the robbery was
introduced ané identified. It seens that she dlecarded this in a
vacant house nearby soon after the robbery. Jogeph Robinson always
wore tuo suits of clothes of cifferent color and he also ciscarded a
suit so as to hinder identification while they made their escape.

_ The cefendant took the stand and admittad thst he had participated
in the rebbery et the f. Green Grocery Store, but cleimed that Mr. Green
was the only one robbed. Ne admitted assaulting urs. Green with hia
gun anc stated that Margaret shot the bread boy, but on this lust charge
thay are not being tried.

He admitted also particineting in the robbery of Marc 4. Terrell
at the Capitol Theater, clains that Hargaret shot Perrell and dented
that he did it. He adzitted that he had Med to Leiutenant L. C. Ellis
when he made the statenent that Laroy Royster had been with then when
they roobedTerrell, but had claimed this so that he could sey that
Leroy shot Terrell and not targaret. Now hea clains that vargaret shot
Terrell and he claimed th.t Margaret was the master mind behind the
planning of the offenses, but from the investigation it was Robinson
¥ho caves most of the robberles with his very willing accomplice.

vires Sargaret had put clorax on her hair to such an extent that
she was often nistaken for a white woman, however, at the scene of
both crimes, she wore 2 dark wig which wes discarded with the other
clothing after each crine.

On May 11, 1943 Mergaret Fowler Barnes and Joseph Rebinson went to
the Capitol Theater, a colored moving picture house on Pifiagheta
Street, Portsuouth., There was 2 long line at the ticxet window. Joseph
and Vargaret were about third and fourth in line for about thirty minutes
waiting for the ticket windew to re-open. ft mine P. M. the window
reeopenec, they bought tickets and entered the theater. ‘There was a
very larse crowd, and this was durin: the chance of the picture with
& lot of confusion ag the people left and others entered the theater.
Auout nine-thirty Merc A. Terrell, colored, sc manacer of the theater
left the ticket office with a money box unler his arm. fuergeret Fowler
Barnes went up to him, teok the box, and when he seesed surprised,
Joseph Robinson confronted bin with a pistol. Margurst started cut of
the theater, heard a shot, locked back over her shoulder and saw Terrell

‘lying on the floor. Joseph Robinson was standiag over him with a gun

in his hand. Joseph firec two more shots in the floor to clear a path
through the crowd and left. He met Margaret a few blocks down the street.
They went to Jerkley, opened the money box, took out the money, buried
the box, and the next dey they left for Hew York. ‘The box has not been

recovered as & luilding has now Leen erected over that area.

nosaline Porter, the ticket seller at the Canitel Theater that night
testifled th.t she observed ‘jobinson and Fowler waitin: to buy a
ticket. Then efter the shooting Terrell ran out end said he had been
shot. Rosaline also observed Lstoaret and Joseph run out of tho theater


. PRIGH RICOAT s

Joseph Robinson (Con't)

and disappear in the crowd. Hargaret had no gun, but Robinson had a

“in in hig hand as he rm out. Terrell was rushed to the. Kings paughter's
Hospital where he wea operated on for the one pistol wound in his

abdomen. The bullet had penetrated several of hie intestines and these
were sewed up. Terrell lived fron vay 11, 1913 until eight-fifteen A. ¥,
on vay 16, 1943. His temperature had been 103 degrees sortly before

his death, ami tr. C. F. surd, the attending physician stated that
Terrell died of the gun chot wo nde ;

Tieutenant L. Cc. Fllis, fortmouth Netective Sureau, contacted
Yargaret Fowler Dernes and Joeeph Robinson while thay were serving
prison terne in Nev York State. sfter considerable correspondence and
two trips up there he obtained a written confeseion from Vargaret Fowler
Barnes giving details of the various offenses just abcut as given above.

Joseph Robinson elso made a statement to Lieutenant Ellis to the
efZcct *het one Leroy Royster, how serving a sentence in the Virginia
penitentiary, wag with then aleo and that it wes Leroy who shot Terrell.
Vargceret cleims this ig not eo, and at his trial, Robinson claimed that
he tele Lieutenant Fllia the untruth about Royster so he would not have
to tell him that Margaret stot Terrell. At Robinson's trial, on Narch 12,
1951, vargaret testified in behalf of the Commonwealth, md then Robinson
took the stand in his own behalf and claimed that Kargaret had shot
‘Terrell, although he had indicated earlier he would not testify. Leroy
Royster was in no way connected with either of these crines.

-Jn addition to the chove witnesses, the undertaker who buried Terrell
testified to that fact and stated thet the cedy was embalved here and
sent to Georgia for internuent. ;

at the time of theses offenses Vargeret end Joseph had rented a room

at the St. feorge Hotel in Norfolk on vey 10, 1943 as Kr. ond urs. Lewy
Jordon. They were arrested in New Tork as Louise ané Leroy Jackson.
Robinson was known thare also as Joseph Laster

Portsmouth, Virginia

Sm 21- 2); Tisorderly Conduct Dilenissed
1LO0—Lé=3) Yousebreakxing (Sarah Yatson) in
12-15-39 Violation Layman Act £5.09 & Coste
5-17-31 Malicious Shooting Found not guilty
10-16-32) Threaten to kill (Stanley

Feson) Disuissed .
11-11-31 _ larceny coal £10.00 % Costs
mt 33 ~ Assault Diemissed
6-25-33 Agcault v 3
Gan Ih; Assault © £5.00 & Costs
12-7-34 Threaten to kill Nisuissed
Ta27=35 Dieerderly conduct-ganing %2.50 #: Costs
9m1~35, Threaten to kLil (Seneve Kid) Diemissed

10-L6=35 Disorderly conduct-fighting $2.59 & Costs


Joseph Robinson (Con't)

10—21:—35 Violating prism rules
(sou:ealed weapon) » : Dis pissed
helg-k3 fobbery *& Maining cresant offense
5-11-43 tturder n *
3=26—51 =. ualicious Assault on J. E.fkeeter-fent to Crand Jury
Attempted Jell Break © Eent to Grand Jury

Worfolk, Virginia

B-2h=31 Disorderly Conduct | Dienissed

complainant-feneve Hoore
506 tticholsean Street ©
Norfolk, Virginia

- Yew York City

1-20-37 Fossession lottery slips | Suspemied sentence
L512 L counts unlawful eale of

Varijuana & Conspiracy (Teceral ,
Court) 30 days, 6 months
currentiy~Suspended
1 year probatii.

Re 2bali hy Teclared deserter Ue &. trmy detainer
filed.
S-11-Lh Rebbery 15 to LO years

Joseph Robinson and Yargaret Fowler Farnese are elso charged as follows:
“he listings telow are in cronological order.

le

Ce

‘ovember 1, 19h2 at 5:15 aon. York Hotel night clerk, 1200
Vadicon kvee, Ealtisore, vd.held-up at pistol poiat ane
robbed. Raltimore suthsrities intend to prosecute.

April 23, lyh3 “erfolk, Virginia, heldeup 21d mobbed

Annie white, colored, 705 “. charlotte Street, Viola ftewart
colored, 915 Culpepper Street and John Clark, colored.

All three were robbed at the eeme time, and Curing the
robbery, Joba Clark wiggled loose from the ropes sith

which he had been tied. wargaret hit hin over the head
with e plece of pipe, shot hin, and later Robinson shot

hin, leaving him dead. oth are chargee wita murder.

vareh 253, 1943 robbery of Tella and Thomas Williame in
“ew York City. They have Seen tried anda convicted for
this offense. Margaret received 10 to 30 years, and
tobinsen 15 te ho years. |

fpril 19, 19h3 Roobery of A. Green, Portsmouth Vas,
Rabvery of John Camptell, anda two maiains charges.

April 23, 1913 Robbery of "osa Lee Gregory, colored

tn Norfolk, Virginia, and febinson is charged with the rape
of this woman. Margaret is not indicted on thia rape
rharca. Norfalk Authorities iftdnd to prosecute.

Coe

Joseph Robinson (Con't)

6. May 11, 1943, murder of Mare A. Terrell, Portsmouth, Virginia
during robbery of this tan. .

whe offense in New York wes as follows: -

Margaret and Joseph Robinson were arrested in New York on Vay LL, 197Lb
and indicted Hay 26, 19h) for robbery, first degree (two counts),
grand Larceny, second degree (txo cowmts, and assault, second degree
(four counts), assault, first degree (two counts), and criminally

| passessing pistol and carrying a dm gerous weapon after a prior

conviction and criminally carrying a concealed, loaded pistol.

On Setober 23, 194! Robinson and Margaret Barnes were tried ty a jury
on the above cherces in New York. Hon. Seorse L. Tonnellan presided
and fixed Robfonson's punishment et fifteen to forty years in State
Prison. Yaergaret was sentenced to ten to thirty years. Goth denied
the cnarges against them during the trial.

The circumstances of the Mew York offenses indicate that Vargaret and
Joseph Robinson, also known as Joseph Laster, on Varch 23, 1913 at four p.n.
at 15839 Madison Avenve, Hanhatton, lew York, asgaulted Thomas and Zella
Williass , nd stole from them the sua of $101.00, two wrist watches, an
elactric razor, a flashlight, a pen, a ring and wearing apparel, with

a total value of $383.00. They were armed with pistols and an ice pick

The victins were living at the this eddress, and had rented a room to
Margaret on March 23, 1943, and let her perform janitorial services
for her lodging because she was in destitute circumstances. Nargaret,
on March 2h, 1943 informed the Williams" that a man, later identified
as Joseph Laster, had rented a room but had given no mane.

on the date of the offense, at four p.m. Laster knocked on the
Williams! door and indicated he wished to pay the rent. He wave irs.
Willians a $5.00 bill. While she was making out a receipt, Laster
locked the door on the inside and pointed two pistols at her. A
tussle ensued, Yrs. Williams screamed, and Laster crepped both weapons.
After recovering one of the wespons, Laster made l're. Wllliams sit
facing the wall «while he tied a scarf about her neck, hands anc body.
fhe was also wrapped in a bed sheet end cagged. He then opened the
door, peradtting Marvaret to enter with a shopping bar, end took
$11.00 USC, and articles valued at *173.50.

while targaret searched the apartment, Laster continued to threaten
re. Willtame with pistols and an ice pick. Ne removed her clothing
for ths purpose of comitting rape, but he hesitated when its. Williens
complained of illneys and that she night have contracted a venereal
disease. At siz poem. ir. Williams came home from work. Laster ordered
hin to remove his clothing and stole *90.00 and articles with a value
of 7210.00. Laster tied and gazced “illiais. Coon thereafter, efter
a thorourh search through the apertnuent, vercsret and Laster left.

Mrs. Willtoms wiggled herself loose, untied her husband, and called
the policc. ‘The Willians' cletiusd later a diamond was elso teken

with value af about $300.00, making total loss over £600.00.


jMONWEALTH: ¢ OF Ving,

LES ee coe
is FORE ETERAYS eon

IN]
ms NG 4 A

>... oF CORRECTIONS

THE PENITENTIARY
500 SPRING STREET
RICHMOND 19. VIRGINIA

THE LOURT
ee REGEIVED
DEPARTMENT OF WELFARE AND INSTITUTIONS! Sears)

Vay 5, 1954 M54 MAL 7 PM 2 36

; \
B
ee BO PAG
: Mr. Wm. Hodges Baker, Clerk INDEXED... EX

Portsmouth City Hustings Court
Portsmouth, Vircinia

tne olfscial report

: , Yivision of Corrections,
nce to the death by suicide of Joseph Robinson,

as ocky Joe", who was to have been executed at approx-
imately 7:30 A.M. May , 295).

Ey WES jr/va
Lne,

Joseph Robinson(Con't) 7

Margaret and Laster (Joseph Robinson), fled New York, and returned
June 15, 1943 and lived at 537 west 12nd Street until their arrest
on May 11, 194h when tirs. Williems recognized them at a theatres .

The arresting officers in New York regarded the tro ag the coldest and

| most ruthless in their experience. They rere arguing when arrested

| and Laster was believed to have threatened one of the complainants while
at Felony Court. Laster was sentenced to 15 to lO years for the

above crimes. fobinson is elbible for parele from the New York
penitentiary (Clinton Prison) July 11, 195k.

After Robinson's trial here in Portsmouth and before sentencing,
anc while being held in the Portsmouth City Jalil, he made an
attempt to break out of jail. on March 27, 1951 when jailor
Jo. Skeeter cpened the door of the cell block in which Robinson
was being held to give the men a spray Eun, Robingon charged the

, jailer, cut Mim on the wrist and stabbed his forearn making a
bac csind requiring about ten stitches. He then hit the jailor
en the forehead and chocked him. The jailor's keys were taken
from him and Robiuson attempted to use then to open a door leading
from the jail. The keys dic not work in this door end the other
inmates in the jail sounded the alarm. Officers arrived fron all
parts of the city and when they cot in » Robinson was sitting dom
on @ stairsay. He commented that he had nothing to loose by his
aitenpt md wmauld try arain if given an opportunity. Later in the
Police Court of the City of Portsmouth the cherges ef malicious
cutting and attempted jail break were cent on to-the Grand JUrye

FAMILY HISTORY: Joseph Robinson, as aubject is know here, is the son of Willie
| Lassiter (or Laster) and Jessie Smith. jis nothor end father were
| kever tiarried and he had little contact with his father who died

_ when Joseph was a small child.

Ws mother married John Wesley Robineen and this step father died
around 1936, Joseph adopted the step~father's name. [His nother
Gied in 193. He had divided his early youth tetween his mother

and a maternal aunt, Tessle S. Brown, a seeningly respectable colored
woman who livee at 621, Griffin Street,Portsnouth.

John ¥, Epbingon took Joseph te school and apparently provided well

for him until John's death. However, John Wesley Robinson was tried

in this Gourt on Tecember 9, 1931 on two charges of Robbery but was
- found not guilty by a jury, “5

Joseph drifted beck and forth between his sother and aunt and never
knew 2 Stable home lifes Joseph claims a paternal half brother,
willie Lassiter whom he has not seen in fifteen years and who
possibly is new in “New York. There is en aunt, Hattie GNORZy

living in the 500 block of varket Street, Norfolk and an aunt,
Glivia €. Williams, who is a possible mente] case in New Yort.

There are other relatives in this arse but the members of the fanily
do net have much contact with each other. This seeme to be a
charccteristic of this fauily throuchout.


PERSONAL HISTORTs

Joseph Robinsen (Con't) 2 °° ae Reon.

Joseph claims he was born October 1h, 1912, but according to a
family ible, in which the entry was made when he was several
years of age, ha was born December 9, 1911. School records
indicate he was born October 14, 1911. He was born in Portsmouth
Virginia and spent his early life heree ,

From early youth one of his eyes crossed outward, hence the
nick name "Cocky". He entered the local George Peabody school
September 1922 and attended three years, completing the first
have of the third gradee furing the first yearshis conduct was
Yoood# but it becaswea unsatisfectory after thate During the .
firet one and one~half years his acholarship was "good", then
becatie poore There are no indications in school records of
any unusual nisconducte

Due to the early deaths in his fenily, he was noaved about
congiderebly. He is emall of statute and became very conscious
of thir exd bis cresseti eyee He was first arrested around the
aze of twelve or thirteen and first convicted at the age of
minetcene In 1931 he was tried in this Gourt on a charge of
malicious shooting Geneva Moore but a Jury found him not guilty.

As indicated by his pelice record in Fortsmouth he began his
antieseciel career carly in life. Geneva Noore(Kid) was his
girl friend then and he was convicted several times of minor
offenzes against her.

Around 1935 Joseph left this erea and went to “New Yorke He was
on relief there at various times. Two years later he was caught
with "Policy slips" and convicted. He worked on WPA from May 1937
until October 190 and also received hone relief. He lived in
numerous furnished rooms, was always flashily dresses
investigaters report he failed to submit information muself

aod usually exhibited a disinterested and unconcerned attitude.
hen pressed by one investigator for information for the relief —
acency Robinson stated that no one need worry about hin for as
long as ha had a "trigser finger", he would get along.

Yarceret Tarnes (Fowler) ran away from her home in Saltimore
around Novemver 1933, married a man named Zarnes a few months
later, but lost contact with him a few months later. Sonetine
after this Rebinszon met here He was inducted into the U.S. Arny
August 12, 19h2(tnverified) and deserted the Arny October 10, 1926
Although Rebinson claims Margaret pursuaded him to do this, there
{5 every reason to believe that Margaret took the opposite attitude.

Thoir criminal record together dates from soon after this Gesertione

Robinsen is basically a cold, ruthless, narcissistic individual.
Physically he is sxall, Such , in addition to his eye defect,
lceads to the conclusion that sane of bis aggressive behavior was
a compensation for his physical inferiority. Later in life when
his ego was inflated by the possession of a pistol, with which he
could iittinidate, assault ani rob others, he becane a confirmed
Crininal and ruthless kilicr.


EYPLOWEN :

Scurces:

Joseph Robinson 9

Robinson has never married. Since their criminal career
together began late in 192 they lived together, mainly on the
fruits of their robteries. The report from New York indicates
that Robinson never worked between crimes, but that his co-

defeadant, Margaret did work up until oe, were arrested in
May Why. ”

Robinson has . urethal stricture rer developed efter
Gonorrhea acquired seme years aro. With the exception of

this and the eye condictioa he appears in vine health and
has’ normal use of S his faculties.

It has been verified that he worked as a porter and ronan
for bik*s Rathison et S701 Col onial R Ronis Rrooklyn fron vay ll,
to Qetober 22, 1937 et a salary of JO. per monthand lodging.
fie was Gischarsged because of reduction in force. The Federal

Narcotic “ureau regarded this man as a persistent seller of
nerljauna prioy te his arrest on @ narcotic charge in 19h2.

a

We clained enpioyaient in Portsmouth as a youth at Planters

Mtge Coupany, Royster Guano Conpany and for various sea
food houces. Ewas, tunable to verify any of these, except

‘that his dunt verifies ‘thet he werked come as a youths

a
His desertion {esl the Army in 192 has never been cleared
upe He clains Re recéived a "blue" discharge February 7, 19h5
but this is’ not verified.

Since Mayy 11, Shik he has been lacarcerated, and for the past
six years has been confined at Clinton Prison , New Yorke

Subject
Margeret Fowler Garnes
LLeut LC. Ellis

New York Court recoris

faploy=rs
Police records AR. Walton

rroveation Crficer.

IQ I>

Sa as
CERTIFFEALE OF DEATH

State File No. : oe ee

the disease, injury, OF TT” OTHER SIGNIFICANT CONDITIONS
complication which

PP Aha Conditions contributing to the death but not

related to the disease or condition causing death,

°
Wo, Registration COMMONWEALTH OF VIRGINIA
me ae Distiltt No 22. 2 DEPARTMENT OF HEALTH, BUREAU OF VITAL STATISTICS Registered: No. ee see ce ee
be J 2 1. PLACE OF DEATH MAGISTERIAL DISTRICT 2. USUAL RESI DENCE (Where deceased lived. If institution: residence before admission) o
eo 2 a. COUNTY a. STATE ; b. COUNTY
ie) ‘ ”
Henrico Virginia
>
— ey ; é
= CREM nsice Corporate c. oe Portume thy Kbfnside Corporate
) (J Outslde Limits TOWN . Lt 1) Outside Limits
LS]
vo S c. HOSPITAL OR INSTITUTION d. LENGTH OF d. STREET (if rural, give mailing address) i
i a ADDRESS
SS, STAY
eg? |State Ponttontilory,lichmond
“Sp = Te
. &) 3. NAME OF a. (First) b. (Middle) c. (Last) 4. DATE (Month) (Day) (Year)
Oo LS S ° s Day ar
== DECEASED A eo -s I t
2s ee a Josoph Robinaon Dear | ee 19
G 2 5. SEX 6. COLOR OR RACE | 7. MARRIED, NEVER MARRIED, 8. DATE OF BIRTH 9. AGE (In years IF UNDER | yit. [TF UNDER 24 HRS.
ge . : WIDOWED, DIVORCED (Specify) lase birthday) Months | Days Hours | Min.
rae A
53 || Mele Colorod |. Single SOU 1L2
cal oe 10a. USUAL. OCCUPATION (Give kind of work | TOb. KIND OF BUSINESS OR IN- 11. BIRTHPLACE (State or foreign country: 12. CITIZEN OF WHAT
iS done during most of working life, even if retired) DUSTRY COUNTRY?
ae 7 bsorot Tat
nee LNeorey Laborer Portomouth, Vircinta USA
oe i & 13. FATHER'S ; ; a TA. MOTHER'S
4 ae 1s bs x re “ _
- ='S NAME FOL le lTiobinsoen MAIDEN NAME Jeasio Smith
r Nn =
at Ba 15. NAME OF HUSBAND OR WIFE OF DECEASED 16. SOCIAL SECURITY 17. INFORMANT'S
mos NO. SIGNATURE |... _ ate fas)
ees Teal : 4 as ie
a: Bingo Unknown apres Ponttontlary fllos
oe 18. CAUSE OF DEATH DISEASE OR CONDITION MEDICAL CERTIFICATION INTERVAL BETWEEN
Be m ue : edt DIRECTLY LEADING TO DEATH* ONSET AND DEATH
ry “ater on y One Cause per fine ci : " be ‘
LEH tor (ad, Ch), and CO @ Stranguiation dug to hancvine | Seminutes _
we See ANTECEDENT CAUSES :
ee ges :
a eS a "This docs not mean Merbid conditions, tf any, giving DUE TO (b). vo ees) ae ea ae
n ae wg asia etal ae rise to the above cause Ca) stat- :
pales — 2, Cl ¢ re, S- Sa pices é a
= Seelet) HEH een TO GHuanLs try the wnderlying cause last. DUE TO (c)
“i a
— —_
a
ce

Ua — caine
Ps 19a. pen OF OPERA- | 19b. MAJOR FINDINGS OF OPERATION 20. AUTOPSY?
S sat
= ves) Noa
21a. ACCIDENT (Specify) 21b. PLACE OF INJURY (e. g., in or See 21c. (CITY, TOWN, OR COUNTY) (STATE)
SUICIDE home, farm, factory, street, nee bidg., etc.
HOMICIDE State Pen! Eonbiary Richnond Vircinia
24d. Time (Month) (Day) (Year) (peu: eae INJURY OCCURRED 21f. HOW DID INJURY OCCUR?
Vhile at Wie While -— . } .
wurvtlay by 195%, Pt 3 fp ok LI| imaate hung himself with bed shoot

22. I hereby oii y y at] at ey a the ¢ a aime sion tha. byens ay, £0 BOO. Ss that last saw the défeised
td
flive anf pe fe and that death occurred at. bg a BE, from the causes and on the date stated above.

AES.
39% DATE SIGNED

af SIGNATURE - / pgree or A 23b. APDRESS 23;
Vs eps uy os an olbed LEA ee, C bla, bleh | Ly, os has

PLEASE WRITE PLAINLY, WITH UNFADING

The correct = especially important.

~24a. BURIAL, CREMATION, | 24b. DATE 24c. NAME OF CEMETERY OR CREMATORY ff 24d. LQYGATION (City, town, or county) Z (State }
REMOVAL. (Specify) YU
“DATE REC'D BY LOCAL | REGISTRAR’S SIGNATURE 25. FUNERAL DIRECTOR'S
REG. SIGNATURE
n
ae ADDRESS
a7
B
be
S +
fy = a wanna car = eee ee
\ ; 2 -


THE PENITENTIARY
RICHMOND, VA.

Hay 5, 195k

Major R. M. Youell, Director
Division of Corrections
Richmond, Virginia

Dear Majort

on May 4, 1954 at approximately 5:30 A.lfe, and who D
at approximately 7130 4.H.

~- Malicious Assault, 10 years. ~
c@. Execution Dates Hay 11, 1951.

I list telow th 3 davalosuents in his case after being
received heret ;

Granted Reprisve to/Oqtober 19, 15 the Hustines Court of Portsmouth City.
Granted Writ of Habdas\Gorpus ad sudjfictiendum by Richmond City Hustings Court,
Part Two, on September 25, 1951.
Petition for wrtthof errs

Hew executidn ate set by Portsmouth City Hustings Court for September 15, 1952.6
Writ of 43 corpus ad subjiciendun granted September 6, 1952 by Richmond City
=t, Part Ti : ,

On Harchgd,. & I addressed a letter to you recommending and asking
permission that Rob bs transferred from the East Sasement to © Cell House
where he would have an opportunity to get out doors and gst some exercise
during the period cf time his case was in litigation, and on the same: day the
request waa forwarded to Colonel Copeland who approved it and returned to me
on March 23, 1953. The following day we transferred Robinson to C Cell House
where he remained until December 3, 1953, when he was returned to the East
Basensnt from C Cell House, At the time this transfer was made Robinson went
through the usual procedure of changing clothes ani all articles thoroughly

Major R. M, Youell 2 | 525-5)

searched, After searching his shoea he was permitted to retain then.

: Eis stay in the East Sasement was normal with the exception
that I hed reports that he would make unusual statements with reference
to women, and so forth, and his desire for them, that are not usually made
by condemned men, He was seen regularly by his spiritual advisor and
caused no particular problem.

On Hay 3, 195, we made the usual checks on equipment that
are routinely made the day prior to executions, the officers reported
everything in order.

~,

Pag
; At 505 Ae Me, Hay lth, I recived S ksuiod csll at home
from you advising that Joe Robinson had committed euseidon, Having been
up and partially dressed, I arrived“at the Penitentiary approximately

6:00 AeMe, and imnediately started the se poss to determine how it

eccurred, and how the rasor blade Same ints Mis possession. After question-
ing all available sources I amn/coafident, tai/there is no method of proving

.4t, that Joe secured the razor blade and 14 some manner placed it in his

shoe intersole, and it waa not dissovered gt the time of the searche

7
ff

The Coroner’ yas\c ‘ser his investigation issued a
Death Certificate, I am ec showing death was due to strang-=

I am alsa enclosing the Dpllowing statements in connection

with the mattert Ly,

J
Statement by Mr.-8,/T. Harrdsenp sr. / Medical Externe
Statement by Mr. LK. Gangwer  Otficer-in-Charge from 11:30 P.M. to 7:30 Alle
Statement Ky fir. dohn Gredicy, Guard on duty at the time Robinson committed
suicide. 2
The origi
was searched on reviewed
cell.
During the day I asi Ae. J. S. Smith, Captain of the Guard, Hr, E. ©. Aylor,
Line Officer, and Mr. “i:”A. Anderson to question and secure statements from
John Clay Kensincer, Grover Willie Newnan, Lanvee Irby Tilton, condemned pris-
cners in the East Basement, also Howard Robinson, 764022, orderly and runner
assicned to the East Basement, and I am enclosing copies of their statements.

copies of \notes that were found by the Coroner when the bedding
op the Coroner made his examination of the body in the

You will notice from the statements by the men in the East Basement
that there is some resentment apparently between the prisoners down there and
Mr, Weatherspoon, Guard on duty from 4:00 P.M. to 11:30 Pe This matter is
being checked into and corrections made if it is found that conditions exist
as outlined in these statementse

The writer very mich regrets the occurrences however, I can find

Major R, M. Youeli 3 5adn 5)

no complaints on the services and no reason to believe that any carelessness
existed on the part of Mr. Gangwer, Officer-in-Charge, or Mr. Bradley, Guard
on duty at the time, and I hold them in no way negligent or responsible,

Full details have been released to the press and also the

Governor's Office, and I am also notifying the Clerk of the Court at
Portsmouth, Virginia.

WFS jr/vh | |

Encs. ext. ena

cc: Honorable Thomas B,/S
Governor of Virgir

Capitol Building’
Richmond, Virg

Mr. Wm. Hodges Bake
Portsmouth/City, Hust,
Ports muth vinia

ws

EL A ac LA BR Bt

JARRATT, Va., Dec. 17 (AP) — KA
man who confessed to raping and kill-

‘ling his best friend’s wife néarly nine

years ago was executed in Virginia’ s

electric chair on Thursday. °

“The” man, David Mark’ Pruett, 44,
was pronounced dead at 11:11 P.M. at

:.| the Greensville Correctional Center,

said Wayne Brown, the prison’s opera-

| tions officer. The execution took place

less than six hours after the United

States Supreme Court, without com-

ment,’ unanimously
Pruett’s final appeal. |

David Bass, an operations manager
for the Virginia Department of Correc-

rejected. Mr.

Virginia Executes Man Who Killed Wife of F riend

tions, said Mr. Pruett’s ‘wife visited
him on Thursday. Mr.. Bass said: the
two had been married recently but was
unsure of the date.

. Mr, Pruett was. convicted in 1986 ot
raping and stabbing Wilma Harvey, 35,
in her Virginia Beach home on Feb. 12,
1985, while her husband, Richard; was

away on business. Mrs: Harvey’s body

was found on her bed with her hands
tied behind her back. :

Mr. Harvey had‘given Mr. Pruett a
job as a-cook. at: the restaurant ne
managed. ...

When he confessed.,to killing Mrs.
Harvey, Mr. Pruett told investigators

that he had also killed Deborah McIn-

nis, a co-worker at'a Kentucky Fried.
Chicken restaurant in Virginia Beach,
in 1975.

He was convicted of first- -degree

‘murder and robbery in that case four

months after receiving the death sen-
tence for killing Mrs. Harvey. 2

In a petition filed with Gov. L. Doug-
las Wilder, one of Mr/Pruett’s lawyers,
Donald Lee, argued that the death sen-’
tence should be commuted to life in-
prison.. He said the jurors who sen-
tenced Mr. Pruett to be executed never

-heard about his:severe emotional and
psychological problems.

‘SATURDAY, DECEMBER 18, 1993

2
San i ne nm aen ealtona an oe, seen deelies

seo a me Rep a et eee ee ee ae -—.


Times Disgrteh Bech pond Virginia a-LFioom

Richa wisJ Thaw Sesy

Pruett executed for ’85 rape a

BY FRANK GREEN
. TIMES-DISPATCH STAFF WRITER

JARRATT — David Mark Pruett was
executed in the electric chair last
night for the 1985 rape and stabbing
death in Virginia Beach of Wilma
Harvey, his best friend’s wife.

Pruett’s execution at the Greens-
ville Correctional Center was a rec-
ord fifth in Virginia this year and the
state’s 22nd since the reimposition of

the death penalty in 1976. It leaves
Virginia behind only Texas, with 71
executions, and Florida, with 32.
Pruett, 44, made no last statement.
He was pronounced dead at 11:11
p.m, prison official Wayne Brown
said. :
Before the execution, several of
Harvey’s relatives, wrapped in
scarves and heavy coats, stood in a
wooded area outside the prison. The
victim’s mother, Margaret .Lanham

C7 £7/23

of West Virginia, said she wanted to
witness the execution, but her re-
quest was denied.

“Yes, I have been bitter, but I don’t
call it revenge,” she said. “T call it
justice.”

Harvey’s cousin, Deanna Barney
of North Carolina, said she and other
relatives arrived at the prison more
than six hours before the execution.
She described Harvey as s big-hearted
and jovial.

“She never did anything to hurt
anyone,” she said. ‘‘She was just a
really neat person.”

Earlier this week, Gov. L. Douglas
Wilder decided not to interfere with
Pruett’s execution. Wilder had de-
layed the Nov. 18 execution date fora
month so he could study Pruett’s
clemency petition.

Wilder’s denial left the U.S. Su-
preme Court as Pruett’s last hope for

another stay. Yesterday, the court

gg

* Friday, December 17,1993 B3* |

nd stabbing death

unanimously rejected his appeal. The
one-paragraph order did not cite a
reason.

Pruett confessed to the Feb. 12,
1985, rape and slaying of Harvey in
her home. Her husband, Richard,
was away on business at the time.

In the petition filed with the gover-
nor, attorney Donald R. Lee argued
that Pruett’s death sentence should

PLEASE SEE PRUETT, PAGE B3 >

Pruett executed for 85 murder

He raped, stabbed best friend's wife

VY PRUETT FROM PAGE B1

be commuted to life in prison. Be-
cause of past convictions, Pruett
would not be eligible for parole.

Lee wrote: “David did commit
murder, but he is not a cold, calculat-
ing killer. He is a severely psycho-
logically disturbed man who strug-
gles to this day to understand his
actions.”

Lee said yesterday that Pruett did
not want to be interviewed. He said
Pruett was going to spend most of
the day visiting with his lawyers and
family.

Last night in Richmond’s St. Pe-
ters Catholic Church on Grace
Street, a small group opposed to
state executions lighted 52 candles
— one for each of the 22 men execut-
ed in Virginia’s electric chair since

1976, and one for each of their vic-
tims.

“The vigil is for peace, for healing
and forgiveness,” said Dr. Kathleen
Kenney of the Office of Justice and
Peace of the Catholic Diocese of
Richmond. ‘‘Forgiveness is more im-
portant than the ultimate in retalia-
tion.”

Most of those praying at the
church last night regularly attend
pre-execution vigils fer a simple rea-
son: “I don’t believe in killing,” said
one woman.

For Marcelline Niemann, her op-

position to capital punishment crys-
tallized during monthly visits to:

death row to minister to the inmates.

To kill them, Niemann said,
“shows our lack of respect for human
life. Of course, they didn’t have that
respect when they took one life, or
two lives.”

Kenney led the opening prayer
with the words: “Tonight we pray
especially for Wilma Harvey and for;
her family and friends.” j

Staff writers Bob Piazza and Mark ©
Holmberg. contributed to this report. ;


Killer dies for rape
of best pal’s wife

JARRATT, VA. Confessed killer David
Mark Pruett was executed in the electric
chair Thursday for raping and murder-
ing his best friend’s wife nearly nine
years ago.

Pruett, 44, was pronounced dead at
11:11 p.m. EST at the Greensville Cor-
rectional Center, a prison official said.
The execution came less than six hours
after the U.S. Supreme Court, without
comment, unanimously rejected Pruett’s
final appeal.

He was convicted in 1986 of raping
and stabbing Wilma Harvey, 35, in her
Virginia Beach home on Feb. 12, 1985,

while her husband, Richard, was away -

on business.

SAN FRANCISCO EXAMINER

:

A-8 Friday, December 17, 1993 &e & N

NATION DATELINES
Se

ee

jeunor-ayjezeyd ousy

BAY L - Cal

VE—E6EI ‘ZI Jequiedeg ‘Aepu4

Killer executed in Virginia

JARRATT, Va. — Confessed killer
David Mark Pruett was executed in
the electric chair Thursday for raping
and murdering his best friend’s wife
nearly nine years ago. Pruett, 44, was
pronounced dead at 6:11 p.m. PST at |
the Greensville Correctional Center,
said Wayne Brown, the prison’s
operations officer. The execution
came less than six hours after the U.S.
Supreme Court, without comment,
unanimously rejected Pruett’s final
appeal. Pruett was convicted in 1986
of raping and stabbing Wilma Harvey,
35, in her Virginia Beach home on
Feb. 12, 1985, while her husband,
Richard, was away on business. Mrs.
Harvey’s nude body with multiple stab
wounds was found on her bed with her
hands tied behind her back. Harvey
had given Pruett a job as a cook at the
restaurant he managed. Five of Mrs.
Harvey’s relatives, including her
mother, Margaret Lanham of
Summersville, W.Va., gathered
outside the prison before the
execution. Prison officials denied
Lanham’s request to witness the
execution.

a a amon msg ame gun woe ---


“FRIDAY
DEG,: se 1993 ©

teen

6 No. 19

rad PR ere an ee es See ae Ae
xx* ss SERVING SOUTHEASTERN VIRGINIA AND NORTHEASTERN NORTH CAROLINA

to death.

As he was being questioned by
police about Harvey’s 1985 murder,
he confessed both ‘to that killing
and the 1975 slaying of Debra
Clark McInnis, 22. He was convict-
ed of first-degree murder.and rob-
bery for McInnis’ slaying four.
months after the capital conviction.

He killed. McInnis on May 23,
1975, at a Kentucky Fried Chicken
restaurant where she worked. _,

Pruett said he had planned only
to rob. McInnis for. money to pay

David Sack: Private! ae : | iis Vicrims ee
was to be executed —
late Poured ay.

STAFF REPORT

-JARRATT, Va. — David Mark
Pruett, who ‘stabbed two women to
death in Virginia Beach a. decadé
apart, was to be executed in. Vir-

Wilma Lanham Debra Clark

ginia’s electric, chair at. 1 ‘&B. m. Harvey was’ |. McInnis was bills.
Thursday. ie murgered... e »,murdered in ° On Feb. 12, 1985, he went to the
Pruett’s last hope for. a ‘sty was in. 1985. May 4975. - home-of Richard and Wilma Har-

vey while Richard, his best friend,

Mark David Pruett ==
dashed when the U.S. Supreme — = : : oe
Court denied a final appeal by his ‘will be. the fifth: Geecution | in; Vire tions in 1976. ~~. -was out of town-on business: A
attorneys Thursday afternoon.  _ginia this year, the most in’ any —_ Pruett, 44, was ; convicted T in 11986 He raped and killed Wilma Har-

Tf Pruett is. put to ‘death at _year since the U.S. ‘Supreme Court of raping and murdering ‘Wilma vey after she! | went upstairs to get
Greensville Correctional Center, it allowed states to” resume. “execu- Lanham HArrey, 36, and sentenced ready for church. ec a

C66T “OT 090 (Udeeq *eA)*eA “oSTO SyaeW PTAed ‘LTV

‘{the Greensville Correctional .Center,
_| less than six hours after the United

‘| Pruett’s final appeal.

Virginia Executes Man Who Killed Wife of Friend

JARRATT, Va., Dec. 17 (AP) — A
man who confessed to raping and kill-

ing his best friend’s wife nearly ‘nine |
-| years ago was executed in Virginia’s

electric chair on Thursday.

The man, David Mark Pruett, 44,
was pronounced dead at 11:11 P.M. at

said Wayne Brown, the prison’s opera-
tions officer. The execution took place

States Supreme Court, without com-
ment, unanimously rejected Mr.

David Bass, an operations. manager

for the Virginia Department of Correc-

t

a

tions, said Mr. Pruett’s wife visited

him on Thursday. Mr. Bass said the
two had been married recently but was
unsure of the date.

Mr. Pruett was convicted in 1986 ot
raping and stabbing Wilma Harvey, 35,
in her Virginia Beach home on Feb. 12,
1985, while her husband, Richard, was
away on business. Mrs. Harvey's body
was ‘found on her bed with her hands
tied behind her back.

Mr. Harvey had given Mr. Pruett a
job as a cook at the restaurant he
managed.

When he confessed to killing Mrs.
Harvey, Mr. Pruett told investigators

that he had also killed Deborah Mcln-
nis, a co-worker at a Kentucky Fried
Chicken restaurant in Virginia Beach,
in 1975. :

He was convicted. of first-degree
murder and robbery in that case four
months after receiving the death sen-
tence for killing Mrs. Harvey.

In a petition filed with Gov. L, Doug-

las Wilder, one of Mr. Pruett’s lawyers, -

Donald Lee, argued that the death sen-
tence should be commuted to life in
prison. He said the jurors who sen-
tenced Mr. Pruett to be executed never
heard about his severe emotional and
psychological problems.

New York Times /2/18/93 page 9


ween CTAB CUA Wd Cascavan O

Death Row inmate Denied Reprieve

@ Virginia death row inmate David Mark
Pruett lost another round in the appeal pro-
cess yesterday when the U.S. Supreme
Court declined to consider his case.

The justices, without comment, let stand
his conviction and death sentence for killing
a Virginia Beach woman in 1985.

Pruett was to have been put to death in

, aa ial
\vashing
Po® yt?

LL aC

the state’s electric chair on Thursday, but
Gov. L. Douglas Wilder changed the execu-
tion date to Dec. 16 last week so he could |
consider any clemency requests. |
Pruett, 44, already has been turned down
by the 4th U.S. Circuit Court of Appeals. A
three-judge panel upheld his conviction and
sentence in May despite arguments that his
trial lawyer was ineffective, that the pros-
€cutor engaged in misconduct and that the
jury’s instructions were inadequate.

THE WASHINGTON POST -+-R  TLespay, DECEMBER 14,1993 B3

a4

AROUND THE REGION A

Wilder Won’t Halt Execution
in 1986 Virginia Beach Case

Virginia Gov. L. Douglas Wilder refused yester-
day to halt the execution of David M. Pruett, con-
victed of raping and killing his best friend’s wife.

Wilder said he had completed a review of the case
and found no evidence to warrant clemency.

Pruett is scheduled to die in the electric chair at
11 p.m. Thursday.

Asked by a reporter why he had rejected clem-
ency, Wilder pulled out a photograph of the victim,
Wilma Harvey, of Virginia Beach, showing her
throat slashed, and said, “That’s why.”

In a petition filed with the governor, Pruett’s at-
torney, Donald Lee, argued that Pruett’s death sen-
tence should be commuted to life in prison. Because
of past convictions, Pruett, 44, would not be eligible
for parole.

Lee said jurors who sentenced Pruett to die nev-
er heard about his severe emotional and psycholog-
ical problems.

Pruett’s execution originally was set for Nov. 18
but was delayed so Wilder could review the case.

Pruett has exhausted his court appeals, and Lee
said there are no plans to return to court for last-
minute motions.

Pruett was convicted in 1986 of raping and stab-
bing Harvey in her home while her husband was
away on business. Harvey’s nude body was found on
her bed with her hands tied behind her back.


SUN :
NOVEMBER 7, 1993

DAY

7

ww AND

THE LEDGER-STAR

“SERVING SOUTHEASTERN VIRGINIA AND NORTHEASTERN NORTH. CAROLIN

r

sod Chicken restaurant where she worked.
Gay Lanham Harvey, Margaret’s: ‘

Photos by DALE FERREL/AP (left) and RICHARD L. DUNSTON/Staff
ret and William Lanham, left, and Earl and Pauline Clark share a gruesome sorrow: Both couples had daughters who were

stabbed to death by the same man, David Mark Pruett, 10 years apart. The parents, saying they will feel no peace until Pruett is
ecuted Nov. 18, are bitter that the state won't allow them to watch him die... tee

3ONDED BY VENGEANCE

A 1 One of Pauline Clark’s daugh-
After learning that ters wears Wilma’s necklace
their daughters were ton Be playa violin:
killed by the same Margaret Lanham can see her

daughter’s grave from the win-
man, 2 women form dow of her home. She still calls
: ° ° Wilma “my first love.” :
a close friendship. Since 1985, when Pruett con-
: fessed to both murders, the two -
By Lynn Waltz mothers have shared their pain,
Staff writer their anger and their hope of wit-
nessing the final day of ven-
hen Margaret Lanham geance — Pruett’s execution.
and Pauline Clark be- A letter from a prison warden
gan exchanging letters, ae . snatched that hope away just
the relationship was formal and : cS : weeks before the execution, set
detached. “Dear Mrs. Clark,” ima Gay Lanham Harvey, left, 36, was murdered Feb. 13, | forNov. 18.
Lanham wrote in the first letter 1985, in her Virginia Beach home, where she had been ironin; “Policy prohibits family mem-
in May of 1986. She signed it, choir stoles. Debra Clark Mclnnis, right, 22, was killed May 23, _ bers and or friends of victims or

“Thank you so much — Marga-
ret Lanham.” ,

Since then, the letters that have traveled
back and forth between Lanham in Sum-
mersville, W.Va., and Clark in Chesapeake
reflect a flourishing, deepening friendship.
More recent salutations include, “Dear Pau-
line,” or simply, “Hi there.”

They are signed, “Love, Margaret.”

The women write of their shared interest
of doll-making, of an uncle’s disc surgery, of
a Christmas gift from Margaret to Pauline’s
mentally disabled daughter, of the roses be-
ginning to bloom in Margaret’s garden.

Only occasionally do they mention the ter-
rible reason they have been joined in
friendship. — ;

Both of their first-born children were vio-

lently stabbed to death by the same man, Da-

vid Mark Pruett, almost a decade apart.
For Pauline Clark and Margaret Lanham,

it is their bond of grief. j
Debra Clark McInnis, Pauline’s daughter,

was slain on May 23, 1975, at the Kentucky

1975, at the Norfolk restaurant where she worked.

daughter, was killed on Feb. 13, 1985, in her
home, where she had been ironing choir
stoles. ‘

Both daughters loved music, their mothers
will tell you. ©

Both sang in choirs at their Baptist
churches.

David Pruett
will be exe-
cuted Nov. :

8 for killing ©

ima oe,
Harvey. After:
confessing to
the 1985
murder, he:
confessed to
killing Debra’
Mcinnis in

1975. he

4

the condemned person to serve
as a witness, therefore we can-
not grant your request,” a letter to the Clark

family said.

In a flurry of phone calls in recent weeks,
the families compared notes and tried to de-
cide what to do.

“T will even push the button. Nobody will
have to throw the switch,” Margaret Lanham
said. “What has kept me going through the
years is I'll get to see the son of a bitch die.
That’s my feeling and I don’t care who knows
it. This is not fair for me.”

Pauline Clark says simply, “Let Margaret
and I in a room with him.”

Margaret Lanham said she would show
Pruett the same mercy he showed her
daughter — none. There is no forgiveness in
her heart.

“My daughter begged and begged, “Don’t

. hurt me, ” Margaret Lanham said. “Now I'd

like to face him and tell him, ‘May you rot in
hell.’ ”
Each woman will spend Pruett’s execution

Please see GRIEF, Page A10

Chanees three years in the making to be unveiled next

a hard

at trac

Northern Virginia’s
defeat of betting
parlors could change
local cities’ plans.

By Alex Marshall
Staff writer.

Portsmouth and Virginia Beach
are rethinking their investments in
horse-racing ventures after North-
ern Virginians voted Tuesday to
keep out the off-track betting par-
lors crucial to success of the two
proposed tracks.

The failure of those referendums
means taxpayers in both cities are
taking higher risks in guaranteeing
loans and sharing expenses for a
track. By one estimate, losing off-
track betting parlors — called OTBs
— in money-rich Northern Virginia
would slash revenues by 20 percent
and profits by almost 70 percent.

Six groups are competing for the
single track that will be allowed in
Virginia. The state will permit six
off-track betting parlors across Vir-
ginia, Tuesday’s rejection by Alex-
andria and Arlington makes the
state’s richest market off-limits for
at least three years. Other Northern
Virginia: communities voted down
OTBs last year.

Voters already have approved
them in the Richmond area and
across Hampton Roads.

Portsmouth and Virginia Beach
officials remain optimistic about
horse racing, but one or both deals
might be restructured. On Tuesday,
Churchill Downs officials will meet
with Virginia Beach council mem-

Pope grants
rare interview

he Persian Gulf war, blood-
i shed in the former Yugosla-

via, the fall of communist
states and the limitations of capital-
ism are subjects Pope John Paul II
discussed recently in a rare, wide-
ranging question-and-answer ses-
sion with journalist Jas Gawronski.

Here are highlights:

On war in the Balkans: “When, at
the beginning, Slovenia, Croatia and
Bosnia chose the path of indepen-
dence, they were fully within their
rights... . Unfortunately, things
came crashing down.”

On economic systems: “Propo-
nents of capitalism in its extreme
forms tend to overlook the good
things achieved by communism —
the efforts to overcome unemploy-
ment, the concern for the poor.”

On being Polish: “If a man lives in
a system which was programmati-
cally atheist, even in a country like
Poland, he comes to better realize
what religion is.”

On the job of pope: “The deci-
sions .. . 1 don’t make alone.”

Q. What was your role in the fall of
communism? Many, including Lech

“©: The Virgini

fore

“Thi:
chang
forV

lea.

Th
preside

bers and
bank ha:
loans; th
spending,
“What
out for th
tite for th
Thomas
Churchill
“If it does
have to

Pl

Walesa, t

A. tbel

sive role
tenets, it
sage anc
human p

I didn
repeat a)
be obser
of religio
that free
doms du

Q. hist

nism had

A. com

cess int
against <
savage c

t

WB Anunlea
identity/t


;

A10 THE VIRGINIAN-PIfoT AND THE LEDGER-STAR SUNDAY, NOVEMBER 7, 1993 .SM

GRIEF

continued from Page Al

night in her own way.

Pauline Clark will stay with her
husband, Earl, in their Chesapeake
home with their four other daugh-
ters. Margaret Lanham will travel
to the Greensville Correctional Cen-
ter, where the execution will take
place, from her West Virginia home
with her husband, William, and her
sister, son and daughter.

“I will never accept that he took
her from me,” she said. “I’m going
to be outside of that prison. When
that switch is pulled, then I can say
he'll never do it again.”

For her part, Pauline Clark
would like an answer to the simple
question, “Why?”

“Pd like for Pruett to write me a
letter,” she said. “Why did he do
this? Is he sorry? ... Before he
dies, I'd like to know what makes
him tick.”

But Pruett may not be able to
answer. He told police he doesn’t
know why he killed Wilma Harvey.

“T'll bet you’re wondering what
makes a bastard like me tick,” he
told detectives during his interroga-
tion. “I still for the life of me don’t
know why I did it. I mean, why?
Why? I don’t have any idea. Jesus
Christ.”

On May 23, 1975, 22-year-old
Debra McInnis was closing up the
Kentucky Fried Chicken on Indian
River Road in Westview Plaza
Shopping Center in Virginia Beach
when she heard a knock on the
front door.

It was David Pruett, a pudgy,
dark-haired man in his mid-20s. She
recognized him as the manager of _
another Kentucky Fried Chicken.

im Id her he’d been -in an :acci-"#22Debbie McInnis; mas
ray Bae Bio of craceneld Baptist Church, lin-

gered for three days at Norfolk Gen-
eral Hospital. She died on May 26 at

gent, hurt his leg and needed to call
his dad.

UWhan Matnnic tired hack ta

64, he threw the knife out of the car.

He carried with him a secret he
would keep for 10 long years.
director;

before he killed Debbie.
He was still married to Sara

* when he he committed his first OUP
= py” marriage kep' :
him ont raping te Minnis, he eer

told police.

At the time he killed McInnis, he

That evening, the night before
Valentine’s Day, Pruett visited with
--Wilma while she ironed. A paper __
~ boy stopped by to collect, and.“
Pruett noticed cash in a metal cash

box when Wilma paid the boy.
When she wrapped up the iron

Staff photos by RICHARD L. DUNSTON
Eighteen years after Debra McInnis’ death, pictures from her youth stir memories for her family. McInnis was stabbed nine times by Pruett.

tic glasses when he perched them
on her face.
He left.a fingerprint on the head-

_:. board of her bed.

“This last thing wasn’t planned,”
he told police. “I guess I did this
last thing, I know, I know I'd get

Debra Clark
Mcinnis wrote

:*

disabled =

that’s the crazy part, ain’t it?” he
said. “He was my best friend. God. I
guess a person’s got to be a little bit :
snapped or off to do something like -.
this.”

Pruett insisted he wanted the

death penalty.

“IT believe in aneyeforaneye .

* and a life for a life. And that’s two :

for one,” Pruett said.
“They ain’t got to worry about no .

appeals.”

But a year later, when a judge
was preparing to sentence him to ,
die, Pruett changed his mind. :

The Pruett trial started Feb. 18,
just more than a year from the day .
Pruett killed Wilma Harvey. *

On Feb. 25, when the jury called .
for his execution, a stunned silence
fell over the courtroom, and Pruett -
showed no emotion. His parents sat -
a few feet away, held hands and ;
stared silently ahead. Across the
aisle, Wilma Harvey’s widower
brushed away a tear.

Margaret Lanham did not attend
Pruett’s trial for fear she could not
hold back the intense emotion. Her -
sister, Anna Mae Muir, served as _~
her eyes and ears.

During the trial, she noticed a
somber couple watching every de-
tail intently. Anna Mae approached
the couple to see why they were so -
interested. They told her that their
daughter had been murdered by the
same man 10 years earlier. She got -
their names and address.

Two months after the trial, Muir >
wrote a letter to Pauline Clark.

“T wish I had talked to you more
during the trial,” Muir wrote to :
Clark from her Wakefield, Va.,
home. “Our lives will never be the
same, especially Wilma’s mother.”

Clark wrote back and shared -
some of her feelings about the trial
and the slayings.

In response, Anna Mae wrote, “I

a gee

ratte ties

PAT there) oir es bie beet) st Ee eE BT GBREL Sis ot TeTes ates

ee ext , pasa 1 SPU Tee.
Ri eR RUB 5 YRS TNE Lis cna BRS eC WE as RAS DL LRRD AEE ES Se RUE ON Ba
igs

1432 771 FEDERAL SUPPLEMENT

Curtis S. Hansen, Washington, D.C., for
petitioner.

Robert H. Anderson, III, Office of Atty.
Gen., Richmond, Va., for respondent.

MEMORANDUM OPINION
SPENCER, District Judge.

This matter is before the Court on a
petition for a writ of habeas corpus pursu-
ant to 28 U.S.C. § 2254, and respondent’s
motion to dismiss a petition or for sum-
mary judgment. The parties have not
sought a hearing, and the matter is ripe for
disposition. For the reasons stated below,
the respondent’s motion will be granted
and the petition dismissed.

%

I

This memorandum will use the following

abbreviations:

Brief of Appellant
State Hab.Pet.
Am.State Hab.Pet.

Pruett’s direct appeal brief
State Habeas Petition
Amended State Habeas Pe-
tition

Habeas trial court order of
7/14/88

Petition for Appeal of trial
court denial of habeas writ
Virginia Supreme Court or-
der of November 16, 1989,
refusing petition for appeal
Trial Transcript [page]
Transcript volume and page
number, for trial court
hearing on habeas petition;
Vol. I refers to transcript
of October 18, 1988 pro-
ceedings, Vol. II to October
19 proceedings

Pruett was indicted in July 1985 for the
rape, robbery and capital murder of Wilma
L. Harvey. A jury convicted Pruett of all
three charges and fixed his punishment for
rape at life imprisonment, and for robbery
at 75 years in prison. Pursuant to Virginia
Code § 19.2-264.3, the same jury then
heard evidence in aggravation and mitiga-
tion of the murder charge, and returned a
sentence of death. The trial court imposed
the sentences fixed by the jury.

tou

State Hab.Order

Pet. for Appeal

Sup.Ct. Order

Trial Tr. [page]
Hab. [Vol.] [page]

The most obvious evidence of Pruett’s
guilt and the existence of aggravating
factors came from his own confession,
which the Virginia Supreme Court ably
condensed. See Pruett v. Commonwealth,
232 Va. 266, 351 S.E.2d 1, 13 (1986), cert.
denied, 482 U.S. 931, 107 S.Ct. 3220, 96

L.Ed.2d 706 (1987); see also infra discus-
sion of Claim J. Pruett’s confession was
consistent with physical evidence at the
scene, and testimony placing him at the
victim’s home the night of the murder.

Wilma Harvey was found with her hands
tied so firmly behind her back that ligature
marks remained on her arms and wrists.
Trial Tr. V at 1077-78. A long sock was
knotted tightly across her mouth and also
knotted behind her head. It alone would
have caused her death, because it pressed
her tongue back in her mouth, blocking her
airway. Id. at 1076.

Harvey had seven stab wounds to her
neck, 12 to her chest, and one to her abdo-
men. Several slash wounds were grouped
on her neck and her left hand. There were
also cuts ranging from superficial to per-
forating, i.e., they passed through her en-
tire body or limb. The stab wounds
grouped around the neck penetrated her
windpipe, major veins and arteries, and the
floor of her mouth. Jd. at 1069-75. Many
of the individual stab wounds would have
been fatal by themselves. Jd. at 1075.

Wilma Harvey’s body was found this
way on her blood-soaked bed. Blood was
found spattered in other places in her bed-
room and adjacent bathroom. Trial Tr. IV
at 926-30. There was no evidence of a
forced entry. Jd. at 930. Pruett’s finger-
print was found on the inside of Harvey’s
glasses, and his palmprint was found on
the headboard of Harvey’s bed. Jd. at
1000-01.

Shortly after his confession, Pruett con-
sented to a search of his home. He also
led police to assorted storm drains in the
area, where police recovered defendant’s T-
shirt, underwear and pants, as well as sil-
ver coins he said he had taken from Har-
vey’s home. See id. at 971-76.

Defendant’s pants were found to have a
semen stain on them from a “Type AB
secretor,” or a person with Type AB blood
who tends to “express” blood type in other
body fluids, such as semen. See id. at
1029, 1035. Pruett is a Type AB secretor.
Id. at 1035. .


it ens

he recard
maxtilated ime y
her husband,
trip at the

shows that shertly before noon

of Wilma L. Harvey was found
Richard, in Virdinia Beach.

time Nis wife was killed.

my

EVidence at the
investigation,

Shaws

fram

hearing
iGarned
af the Harvey re
discavery of Mrs.
Was a close friend of

SUD ess ican
police officers
—autamebile was parked in front
rebruary 2, preceding the
learned that Fruett

Mar

Shartly after midnight on February i4, a de

Alt-Z FOR ¥YT1Oo 2 FDX 3 1200 N81 $
Sak  Oat.e
o VL LS?
“for an interview." Fruett was transported
interviewed by Sergeant J. T. VanderHeiden in a
minutes. VanderHeiden did nat eave Pruett the w

7 AY iz o54 U.S. 436 ¢159669, prior ¢
|
|

V 2s SEPT EL y

During the interview, which was
visited Wilma Harvey on the evening af February
d@ said he left the Harvey residence about 5:45
information, Noawever, that placed Fruett’s car i
somewhat later than S:45. mi When this an pps arent
read Fruett his Miranda rights. Fruett sianed a

recorded and

aie rights and was willing to make a statement a
Lawyer precent.,

~Fouotriatege-

mil VanderHeiden testified he had
garked in’ framt af the
fanderHeiden testified
act and that

information
Bsidence as
aks ale el
yet t "tes

t hat
ling the

it

wae poet Gee
Ea, of ey ¥
LPamamere

rar ked

Alt-Z FOR HELPS VTioG 2

oe i ess
Richar

that
witnesses

sidence

LOG

headquarters,

late as

trutn"

eer ee
4 CLOSED 3

February is,
hed in the
do was aut of

the mude,
shared with
a business

hanme
town oon

in the early stages of their
C#2/70] that Fruett's

an the evening of

vey?s beady. The police alsa

the Harveys.

CLOSED 3 FRINT OFF 3 ON-LINE

<c 4 g

Wher &
lasting about 30
mutlained im tse}
Go any questicaning.

th Ga oh,
arnings

SLO

tted he

Mel he

transcribed, Fruett admi
Le, but he denied killi
pum. VYanderHeiden had
nm franto oof the Harvey home
manflict developed, VanderHeiden
stating he understood
t@etions without a

WALYWErY

mad

AMSWer cpu

indic FPruett’s car
February i.
information we

his ic

ating that
8:00 p.m. on
turned cub his
about the

4 tS

time evi

WAS

PRINT OFF 3 ON-LINE


PRUETT v. THOMPSON

Sesehee ae kay

1433

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

Several items of Pruett’s clothing were
stained with blood consistent with Wilma
Harvey’s. Jd. at 1044-53. Approximately
2.5% of the general population has the
same blood type as Wilma Harvey had. Jd.
at 1053.

The Supreme Court of Virginia affirmed
petitioner’s convictions in all respects; it
also denied a petition for rehearing, and the
United States Supreme Court denied certio-
rari. Pruett v. Commonwealth, 232 Va.
266, 351 S.E.2d 1 (1986), cert. denied, 482
U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706
(1987). The United States Supreme Court
later denied a petition for rehearing.

Pruett next filed a habeas corpus petition
in the Circuit Court of the City of Virginia
Beach, where he had been convicted. By
order of June 14, 1988, the circuit court
dismissed all petitioner’s substantive alle-
gations and some claims of ineffective as-
sistance of counsel, and set a plenary hear-
ing on the remaining ineffective assistance
claims. The circuit court entered findings
of fact and conclusions of law on March 6,
1989, and dismissed the petition in full by
final order of March 27, 1989.

Pruett filed a petition for appeal raising
most of the same allegations as the initial
petition. The Virginia Supreme Court re-
fused the petition, and the United States
Supreme Court denied certiorari. —— U.S.
—,, 110 S.Ct. 2194, 109 L.Ed.2d 522
(1990).

The facts will be discussed in more detail
as the arguments warrant. First, however,
the Court will summarize the claims in this

petition, and the concepts of exhaustion

and procedural default, which preclude this
Court’s review of all or part of many of the
claims.

II

The Claims

Pruett advances 12 arguments about the
unlawfulness of his death sentence and/or
conviction.! They are as follows:

1. Unless otherwise stated, all claims invoke the
eighth and fourteenth amendments to the Con-

A. Pruett’s death sentence was based
on impermissible evidence of victim im-
pact and victim’s character; any proce-
dural default was caused by ineffective

_ assistance of trial and appellate counsel.

B. Petitioner was denied a “compe-
tent and appropriate” pretrial psychiatric
evaluation; any procedural default was
caused by ineffective assistance of trial
and appellate counsel.

C. The death sentence was based on
extraneous, unreliable and irrelevant in-
formation purportedly offered to support
non-statutory aggravating  circum-
stances; any procedural default was
caused by ineffective assistance of trial
and appellate counsel.

D. Trial court improperly denied re-
quested jury instruction on the lesser-
included offense of first-degree murder;
any procedural default was caused by
ineffective assistance of trial and appel-
late counsel.

EK. Penalty phase instructions were
insufficient to guide jurors in performing
their sentencing duties, in that the court:

1) failed to instruct the jury it must
unanimously find at least one aggravat-
ing circumstance to impose death;

2) failed to instruct on the definition of
mitigation generally;

3) failed to instruct on specific mitigat-
ing circumstances listed in Virginia Code
§ 19.2-264.4(B) that were supported by
evidence;

4) failed to instruct on the nonstat-
utory mitigating circumstances  sup-
ported by evidence;

5) failed to instruct adequately on the
definition of “outrageously or wantonly”
vile, horrible, or inhuman as an aggravat-
ing circumstance;

6) failed-to instruct that the jury must
consider mitigating evidence;

7) failed to instruct that “the defen-
dant need not prove mitigating evidence
beyond a reasonable doubt;”

8) improperly submitted a verdict form
which did not inform the jury that it had

stitution.


Che be ha de

1428

for forty percent (40%) and defendant shall
be liable for sixty percent (60%).

w
° € KEY NUMBER SYSTEM
T

+ [ Davia Mark PRUETT, Petitioner, \

Vv.

Charles THOMPSON, Warden,
Respondent.

Civ. A. No. 3:90CV00667.

United States District Court,
. E.D. Virginia,
Richmond Division.

Aug. 19, 1991.

Petition was filed for writ of habeas
corpus. The District Court, Spencer, J.,
held that: (1) claim of denial of competent
psychiatric evaluation presented no ground
for collateral relief; (2) defense counsel
was not incompetent; (3) petitioner was not
entitled to jury trial on issue of punishment
alone following plea of guilty to capital
murder charges; and (4) petitioner’s al-
leged severe mental retardation was insuf-
ficient by itself to hold death sentence un-
constitutional.

Petition dismissed.

1. Habeas Corpus ¢319

Habeas corpus requirement that peti-
tioner must have exhausted all state court
remedies available absent certain circum-
stances is strictly enforced, in interests of
giving state courts first opportunity to con-
sider and, if necessary, correct alleged con-

stitutional errors in conviction and sentenc-
ing. 28 U.S.C.A. § 2254(b).

2. Habeas Corpus ¢=382

Habeas requirement of exhaustion of
state remedies generally requires that es-
sential legal theories and factual allega-
tions advanced in federal court be same as

771 FEDERAL SUPPLEMENT

those advanced at least once to highest
State court. 28 U.S.C.A. § 2254(b).

3. Habeas Corpus ¢=352

So-called “mixed habeas petitions,” i.e.,
those containing both exhausted and unex-
hausted claims, must ordinarily be dis-
missed to allow state court to consider
unexhausted claims except when petitioner
has no available state remedy left, because
it is clear state would deny review on basis
of some procedural bar and even when this
exception applies, federal court must still
dismiss those claims or portions of claims
which either have been explicitly ruled pro-
cedurally barred by highest state court con-
sidering claims, or not exhausted but which
would clearly be procedurally barred if re-
turned to state court. 28 U-S.C.A.
§ 2254(b).

4. Habeas Corpus ¢273

Under Virginia habeas corpus law, ba-
sic procedural bar rule is that no writ will
be granted on basis of any legal or factual
claim petitioner could have made previously
but did not. Va.Code 1950, § 8.01-654,
subd. B. par. 2.

5. Habeas Corpus 422

Habeas corpus procedural bar rule ap-
plies where last state court rendering judg-
ment in case clearly and expressly states
that its judgment rests on procedural bar
and where claim is never presented to state
courts to begin with, and state procedural
bar rule would clearly bar consideration of
new allegations.

6. Habeas Corpus <273, 403

Virginia procedural bar rule for habeas
petitions is strictly enforced in state courts.

7. Habeas Corpus <=331, 365, 366

Procedural bar which can preclude ha-
beas petition may exist on default at trial,
on direct appeal, or any stage of postcon-
viction proceedings.

8. Habeas Corpus <404

Effect of procedural bar or default
may be avoided in habeas proceeding upon
showing of “cause and prejudice” for de-
fault.

A puctt executed [a Mh a i) Vig ini

Sun met ater tessa


BRAGS FAIRE

spestE BARR REN

1442 771 FEDERAL SUPPLEMENT

Vol.) (“The defendant shall not be entitled
to a mental health expert of the defen-
dant’s own choosing or to funds to employ
such expert.”).

Both statutes petitioner cites require, un-
der certain circumstances, only the appoint-
ment of one or more psychiatrists general-
ly qualified in forensic evaluation. See
Va.Code Ann. §§ 19.2-169-1(A), 19.2-264.-
3:1(A). Petitioner has never argued that
Dr. Tsao was not generally qualified to
evaluate him. He claims only that there
were better qualified psychiatrists avail-
able, or that other psychiatrists would have
rendered opinions more helpful to his de-
fense, especially as to his ability to deliber-
ate and his future dangerousness.

Petitioner also cites no case law or statu-
tory construction for the proposition that
the statutes entitle him to more than one
generally qualified psychiatrist." Thus,
even the entitlement theory would amount
to a new rule, because it is not dictated by
existing precedent, and would not afford a
basis for habeas relief.

The dictum of Waye of course also sup-
ports a holding that Claim B is without
legal merit. See also Harris v. Vasquez,
913 F.2d at 622-63; Silagy v. Peters, 905
F.2d 986, 1013 (7th Cir.1990) (allegedly in-
competent diagnosis by appointed psychia-
trists states no Ake claim), cert. de-
nied, — US. —, 111 S.Ct. 1024, 112
L.Ed.2d 1106 (1991). But of. Buttrum v.
Black, 721 F.Supp. 1268, 1312-18 (N.D.Ga.
1989) (contrary dictum in holding there was
Ake violation where trial psychiatrists, who
initially examined defendant only for com-
petency, were not allowed to conduct fur-
ther examination relevant to future danger-
ousness after prosecution put on expert
testimony on same issue), aff'd, 908 F.2d
695 (11th Cir.1990).

Claim C: Unreliable and Irrelevant Sen-

‘tencing Factors

{15] During the sentencing phase, the
Commonwealth introduced over Pruett’s

11. The two due process cases petitioner cites of
course only mandate notice and an opportunity
to be heard when a state proposes to take away
a state law entitlement. See Bell v. Burson, 402
US. at 539-42, 91 S.Ct. at 1589-91 (hearing

objections the following evidence: (1) por-
tions of a videotaped confession in which
petitioner admitted to the killing of Debo-
rah McInnis, a previously unadjudicated
homicide, (2) testimony from McInnis’s hus-
band, Larry, about the gory condition of
her body and the blood surrounding it
when she was found, and (8) an autopsy
photograph of McInnis, displaying her mul-
tiple stab wounds in the neck.

Pruett now claims his confession was
“too unreliable” to support the aggravat-
ing circumstance of future dangerousness,
that information about the prior unadjudi-
cated crime generally is irrelevant to such
an issue; and that the information improp-
erly focused the jury’s attention on the
“extraneous and highly prejudicial factor
of the heinousness of the prior unadjudicat-
ed crime.”

Once again, part of this claim seeks to
create a “new rule” which cannot apply to
this habeas proceeding. The only case peti-
tioner offers to support his principle con-
tention of constitutional irrelevance is Zant
vy. Stephens, 462 U.S. 862, 103 S.Ct. 2733,
77 L.Ed.2d 285 (1983). Specifically, he re-
lies on the following dictum from the case:

[I}f an invalid statutory aggravating cir-
cumstance were supported by material
evidence not properly before the jury, a
different case would be presented. We
need not decide in this case whether the
death sentence would be impaired in oth-
er circumstances, for example, if the
jury’s finding of an aggravating circum-
stance relied on materially inaccurate or
misleading information.

Zant, 462 U.S. at 887 n. 24, 103 S.Ct. at
2748 n. 24.

As far as holding, therefore, Zant up-
held the death penalty of a petitioner
where the evidence sustained the jury’s
finding of two valid aggravating circum-
stances, even though there was evidence
and instruction introduced as to a third
aggravating circumstance held to be inval-

required before automatic suspension of drivers
license of uninsured motorists involved in acci-
dent); Goldberg v. Kelly, 397 U.S. at 269-71, 90
S.Ct. at 1021-22 (1970) (same for termination of
certain government benefits).


Bea ARE

tne

PRUETT v. THOMPSON 1443
Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

id.'2,_ The dictum quoted above is also inap-
plicable; Pruett does not suggest that fu-
ture dangerousness is an invalid statutory
aggravating circumstance, or that the evi-
dence presented was inaccurate or mislead-
ing.

Courts have uniformly rejected the argu-
ment that evidence of prior unadjudicated
crimes is irrelevant to future dangerous-
ness. See Richardson v. Johnson, 864
F.2d 1536, 1541 (11th Cir.) (discussing
cases), cert. denied, 490 U.S. 1114, 109
S.Ct. 3175, 104 L.Ed.2d 1037 (1989); Pruett
v. Commonwealth, 351 S.E.2d at 12. The
result may of course differ if the evidence
presented is plainly unreliable, see Rich-
ardson, 864 F.2d at 1541, but there is no
indication. in the record that any of the
evidence Pruett complains about was so
unreliable.!3

Claim D: Denial of Requested Instruc-
tion on First Degree Murder

[16] In his state court habeas petition,
as amended, petitioner raised this claim
based on a single argument—that the evi-
dence did not support any finding that he
raped Wilma Harvey.'* See State Hab.Pet.
at paras. 45-49. He also alleged the claim
was not raised on direct appeal due his trial
counsel’s ineffective assistance. See Am.
Pet. at para. 220.

His claim before this Court reflects one
first made in state court on collateral ap-
peal —that the nature of the killing and
the nature of the petitioner would have
supported finding that petitioner did not or
could not have premeditated and deliberat-
ed over the killing.

It is not surprising that the Virginia Su-
preme Court found this entire claim proce-

12. Significantly, Pruett conceded on direct ap-
peal that the jury found against him on both
future dangerousness and vileness of the of-
fense. Pruett v. Commonwealth, 351 S.E.2d at
11 n. 7. He does not change his position here.
The evidence as to the rape, robbery and mur-
der of Wilma Harvey was clearly sufficient to
support a finding of vileness. See id. at 13.

13. See infra for discussion of involuntary con-
fession claim. To the extent Pruett claims that
the evidence dealt with non-statutory aggravat-
ing factors, he raises only a state law claim.
See Barfield v. Harris, 719 F.2d 58, 61 (4th

durally defaulted under Parrigan. Al-
though. the ineffective assistance claim
may have served as an allegation of cause
and prejudice for failure to raise the ‘no
rape or force” argument on direct appeal,
petitioner has defaulted on the current
Claim D because it was not even raised in
the state habeas petition. See Coleman v.
Thompson, 895 F.2d 139, 144 (4th Cir.

1990), aff'd, — U.S. —, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991). .

Even if petitioner could rely here on the
“actual innocence” exception to procedural
default,'® there are several reasons why
the exception is inapplicable -here.

{17] First, the exception is reserved for
cases of actual innocence, not the sort of
“legal” innocence represented by an argu-
ment as to the propriety of the jury charge.
See Murray v. Carrier, 417 U.S. at 496,
106 S.Ct. at 2649. It does not apply where
the claimed constitutional error “neither
precluded the development of true facts
nor resulted in the admission of false
ones.” Smith v. Murray, 4717 US. at 538,
106 S.Ct. at 2668.

The actual innocence exception is at this
point only theoretical. To date, no court
has ever found the exception applicable.
Gilmore v. Armontrout, 861 F.2d 1061,
1066 (8th Cir.1988), cert. denied, 490 U.S.
1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037
(1989); Simmons v. Lockhart, 709 F.Supp.
1457, 1468 (E.D.Ark.1989); 17A C. Wright,
A. Miller & E. Cooper, Federal Practice
and Procedure § 4266.1 at p. 467 (1988).

Second, there was certainly no “error” in
failing to instruct as to first-degree mur-
der, because if the facts supported finding

Cir.1983) (“Jury consideration of non-statutory
aggravating factors, as long as they relate to the
character of the defendant and to the crime he
committed, does not violate the Constitution of
the United States.”), cert. denied, 467 U.S. 1210,
104 S.Ct. 2401, 81 L.Ed.2d 357 (1984).

14. Pruett was convicted of capital murder dur-
ing or subsequent to the commission of rape,
now codified at Virginia Code § 18.2-31.

15. This argument was not advanced in the peti-
tion before this Court, only in arguments
against the respondent's motion to dismiss.


ds.

S3. Toot Fae ead Cette
sSateectsiweahiesitsitircstesy rat ite

?

i

1444 771 FEDERAL SUPPLEMENT

petitioner did not deliberate or premeditate, |

he could not have been convicted of either
capital or first degree murder. See Essex
v. Commonwealth, 228 Va. 273, 322 S.E.2d
216, 220 (1984).

Third, even if the Court took notice of
petitioner’s claim, it has merit only if there
was sufficient evidence to support it. See
Hopper v. Evans, 456 U.S. 605, 612, 102
S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982):
Briley v. Bass, 742 F.2d 155, 164-65 (4th
Cir.1984), cert.. denied, 469 U.S. 893, 105
S.Ct. 270, 83 L.Ed.2d 206 (1984).

[18,19] Here, -both the Virginia . Su-
preme Court and the habeas trial court
made explicit findings indicating that
Pruett was able to and in fact did deliber-
ate '* over the rape and killing of his neigh-
bor, Wilma Harvey. There was insuffi-
cient support for a diminished capacity de-
fense, in light of Pruett’s own confession,
the circumstances of the crime, and Dr.
Tsao’s evaluation. See Pruett v. Com-
monwealth, 351 S.E.2d at 13.

Claim E: Insufficient Penalty Phase In-
structions

On direct appeal, petitioner challenged
only the trial court’s refusal to give the
jury two instructions he had proffered.
See Pruett v. Commonwealth, 351 S.E.2d
at 9 n. 6. The state habeas petition includ-
ed all the relevant substantive claims now
before this Court under this heading, but
claimed ineffective assistance of trial coun-
sel only as it relates to allegations 68-70,
and 74-75. See State Hab.Pet. at paras.
162-66. It also raised ineffective assist-
ance of appellate counsel. See Am.Pet. at
para. 222. On collateral appeal, the only
cause advanced for the procedural default
ruling of the habeas trial court was ineffec-
tive assistance of trial counsel. See Pet.
for Appeal at 15.

16. Under Virginia law premeditation or deliber-
ation need exist only for a moment before the
actual slaying. It may be inferred from the
brutality of the killing, the number of blows
inflicted, the physical disparity between the de-
fendant and victim, and the defendant's efforts
to conceal the crime or avoid detection. Clozza

[20] Thus, all.Claim D allegations here
are procedurally defaulted, except for the
paragraph 67 allegation about the two jury
instructions, which was argued on direct

appeal and at each level of collateral re-
view.

The instructions refused were as follows:
2A: The.court instructs the jury that in
order to.sentence David Mark Pruett to
die in the electric chair, the verdict must
be. unanimous, and if all twelve jurors
cannot agree to death in the electric
chair, then the Court shall sentence the
Defendant to life in the penitentiary.

2B: The court instructs the jury that in
order to sentence David Mark Pruett to
die in the electric chair, your verdict
must be unanimous, and if all twelve
jurors cannot agree, then the court shall
impose a sentence as provided by law.

There was no constitutional error in re-
fusing these instructions, because the Con-
stitution does not require that the trial
court inform the jury of the ultimate result ~
should it fail to reach a unanimous verdict
in a Virginia capital case. See Evans v.
Thompson, 881 F.2d 117, 123 (4th Cir.
1989), cert. denied, — US. ——, 110 S.Ct.
3255, 111 L.Ed.2d 764 (1990).

Even if the Court were to consider the
other Claim E allegations, they must be
dismissed as without merit. Cases abound
in which similar capital jury sentencing in-
structions were upheld, against similar ar-
guments. See, e.g., Clozza v, Murray, 913
F.2d 1092, 1103-05 (4th Cir.1990), cert. de-
nied, — US. —, 111 S.Ct. 1123, 113
L.Ed.2d 231 (1991); Peterson v, Murray,
904 F.2d 882, 889-89 (4th Cir.), cert. de-
nied, — US. —, 111 S.Ct 537, 112
L.Ed.2d 547 (1990); Briley v. Bass, 750
F.2d 1238, 1242-46 (4th Cir.1984), cert. de-
nied, 470 U.S. 1088, 105 S.Ct. 1855, 85
L.Ed.2d 152 (1985); see also LeVasseur v.
Commonwealth, 225 Va. 564, 304 S.E.2d
644, 660-61 (1983) (no duty to give specific

v. Commonwealth, 228 Va. 124, 321. S.E.2d 273,
279 (1984), cert. denied, 469 US. 1230, 105 S.Ct.
1233, 84 L.Ed.2d 370 (1985).

State court findings as to state of mind are
presumed correct. See Mason v, Procunier, 748
F.2d 852, 853 (4th Cir.1984), cert. denied, 471
U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985).

ke 7 Eee Peed
oh ae


Leeegeee 3h

PRUETT v. THOMPSON 1445
Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

instruction defining or emphasizing mitiga-
tion).

(21] In any case, the Virginia Supreme
Court’s independent review of the propriety
of the death sentence on direct appeal satis-
fies the general constitutional requirement
that the sentencing jury’s discretion be
“channeled and limited” to appropriate
factors. Coleman v. Thompson, 895 F.2d
at 146-47.

Claim F: Prosecutorial Misconduct —

Only a very limited portion of this
sprawling claim was presented on direct
appeal. Specifically, Pruett noted that the
prosecution argued in closing during the
guilt phase of trial that defendant conceded
guilt during his counsel’s voir dire. Pruett
argued that the trial court should have
granted his motion for mistrial based on
that statement, because it improperly told
the entire jury panel what defense counsel
purposely conceded on voir dire only to
some individuals. See Pruett v. Common-
wealth, 351 §.E.2d at 10-11; Pet. for Ap-
peal at 30-31. Respondent concedes that
this argument, raised in paragraph 96 of
the current petition, is not procedurally
barred. .

In his state habeas petition, Pruett raised
all the present Claim F allegations. He
alleged appellate counsel was ineffective
for failure to assign as error all these
examples of prosecutorial misconduct. See
Am.Pet. at para. 224. He did not raise any
claim of ineffective assistance of trial coun-
sel, relative to the Claim F allegations.

On collateral appeal, the only cause he
claimed for the procedural default on Claim
F was the “novelty” exception discussed in
Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82
L.Ed.2d 1 (1984),!7 as it related to the Claim
F allegations of improper reference to and
presentation of victim impact evidence.
This of course is not cause for the default
as to the other allegations. And, as dis-
cussed above, the victim impact challenge
is without merit in light of Payne v. Ten-
nessee. Accordingly, the only part of

17. This case stands for the proposition that
cause may exist based on a showing that “the
factual or legal basis for a claim was not reason-

Claim F properly before this Court is the
paragraph 96 allegation. .

This allegation is without merit, for the
reasons stated in the Virginia Supreme
Court’s opinion on direct appeal. See
Pruett -v. Commonwealth, 351 S.E.2d at
10-11. For that matter, there is no indica-
tion in the record that this even invokes a
constitutional claim. See Brief of Appel-
lant at 30-31 (not raising any constitutional
argument). _

Claim G: Ineffective Assistance of Trial
and Appellate Counsel

Ineffective assistance of counsel claims
are governed by Strickland v. Washing-

ton, 466 U.S. 668, 104 S.Ct. 2052, 80 -

L.Ed.2d 674 (1984), which outlined a two-
prong test for such claims.

{22] First, petitioner must show that
“in light of all the circumstances, the iden-
tified acts or omissions [of counsel] were
outside the wide range of professionally
competent assistance.” 466 U.S. at 690,
104 S.Ct. at 2066. Courts must “indulge a
strong presumption” that counsel’s conduct
falls within that range, so as to “eliminate
the distorting effects of hindsight.” Jd. at
689, 104 S.Ct. at 2065.

[23] Second, petitioner must show “a
reasonable probability that, but for coun-
sel’s unprofessional errors, the result of
the proceeding would have been different.”
Id. at 694, 104 S.Ct. at 2068.

Petitioner states in reply to the respon-
dent’s motion to dismiss that full briefing
on the ineffective assistance claims “is pre-
mature” at this time. That suggestion has
no merit. Strickland made clear that the
existing record may be adequate to demon-
strate the adequacy of counsel’s represen-
tation; in the alternative, this Court may
dispose of the claims on the basis of lack of
prejudice. See id. at 697, 104 S.Ct. at 2069.

Ineffective assistance claims generally
fail on either prong, if counsel is claimed to
be ineffective for raising objections or ar-
guments which are found lacking on their

ably available to counsel.” Murray v. Carrier,
477 U.S. at 488, 106 S.Ct. at 2645 (citing Reed,
468 U.S. at 16, 104 S.Ct. at 2910).

ero
sf


4

PRUETT v. THOMPSON 1455
Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

prisonment (i.e., the opposite of what
Pruett’s counsel argued), and that he could
consider rejecting a death sentence even
under the most exaggerated circumstances
described by Pruett’s counsel (i.e., accept-
ing the Commonwealth’s argument).

Claim J: Unlawful Confession

[36] Pruett made two statements to po-
lice. His first interview, about 90 minutes
long, began shortly after midnight and

without any Miranda ** warnings. It was

prompted by the discovery of police that
Pruett was a good friend of the Harveys,
and that his car was parked in front of
their home the night before Wilma Har-
vey’s body was found.

Police did give Pruett Miranda warnings,
however, after Pruett stated that he had

visited Wilma Harvey that evening, but had -

left about 5:45 p.m. This conflicted with
information police had that Pruett’s car
had been there at least two hours longer.
Pruett also signed a waiver stating he un-
derstood his rights and was willing to an-
swer questions without a lawyer present.
The interview ended and a police detective
drove Pruett home. Pruett v. Common-
wealth, 351 S.E.2d at 3.

Police went to Pruett’s home later that
day and picked him up for further question-
ing, because his fingerprints had been
found on a pair of eyeglasses worn by
Wilma Harvey, and on the headboard of
the bed where her body was found. Dur-
ing a 4% hour, videotaped interview that
began about 4:00 p.m. at police head-
quarters, Pruett confessed both to the
rape, robbery and murder of Harvey, and

30. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).

31. On collateral appeal, Pruett alleged, “To the
extent that the claim was not adjudicated on
direct appeal, the ineffective assistance of trial
and appellate counsel to raise this claim ...
evades the procedural default.” Pet. for Appeal
at 30. But this argument was not raised in the
state habeas petition; it was therefore procedur-
ally defaulted. Pruett alleges no cause for pro-
cedural default in the present petition.

32. Of course, suppression decisions must be up-
held unless based on clearly erroneous factual
findings. See, e.g., United States v. Wilson, 895
F.2d 168, 171 (4th Cir.1990); United States v.
Jackson, 585 F.2d 653, 655 n. 1 (4th Cir.1978).

further confessed to the 1975 robbing and
murder of Debra McInnis at a fast food
store. This confession followed a police
reading of Pruett’s Miranda rights, and
Pruett’s written and spoken waiver of his
rights. Pruett was then arrested, placed in
handcuffs, and transported to a magistrate.
Id. at 3-4.

Pruett challenged the admission of the
second confession at trial and on direct
appeal. The challenge was based solely on
alleged violation of Pruett’s Miranda rights
in the first confession, and the unlawful
“taint” that allegedly gave to the second
confession. The trial court denied the sup-
pression motion, and the Virginia Supreme
Court affirmed. Jd. at 4-6.

The allegations denominated as J3 and J4
above, claiming Pruett’s confession was in-
voluntary and that his mental defect and
physical exhaustion rendered his waiver of
fifth amendment rights void, were not
raised on direct appeal. They were raised
in the state habeas petition as paragraphs
200-204, and rejected as procedurally de-
faulted; the Miranda argument was reject-
ed as repetitious. State Hab.Order at 1.
The Virginia Supreme Court also tracked
the respondent’s arguments on this claim,
and held that portions of the claim were
not cognizable because repetitious, and oth-
er portions not cognizable because proce-
durally defaulted.*!

[37] Dealing solely with the claim as it
invokes Miranda, then, there is no merit to
petitioner’s argument. The record amply
supports ** the conclusions of the trial

The ultimate question of whether a confession
was made in violation of the Constitution is one
for this Court to make independently. See Mil-
ler v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445,
450, 88 L.Ed.2d 405 (1985). But the state courts’
findings on “subsidiary questions,” such as the
length and circumstances of the interrogation
and other matters requiring resolution of con-
flicting testimony, are subject to § 2254(d) def-
erence. See id. at 117, 106 S.Ct. at 453.

The record amply supports the subsidiary
findings as to the circumstances of the two
interrogations, and independent review does not
suggest either confession was involuntary. See

generally 1 W. LaFave & J. Israel, Criminal.

Procedure § 6.2 at pp. 444-449 (1984) (describ-

oe


PRUETT v. THOMPSON 1457
Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

er and give effect to mitigating evidence
of mental retardation in imposing sen-
tence, an individualized determination of
whether “death is the appropriate pun-
ishment” can be made in each particular
case. While a national consensus
against execution of the mentally retard-
ed may someday emerge reflecting the
“evolving standards of decency that
mark the progress of a maturing socie-
ty,” there is insufficient evidence of such
a consensus today.

Penry, 109 S.Ct. at 2958.

Thus, assuming for the sake of argu-
ment that Pruett is as severely mentally
retarded as the defendant in Penry,** this
alone is insufficient to hold his death sen-
tence unconstitutional, as long as the jury
was not precluded from considering evi-
dence of mental defect as a mitigating
factor. Penry, 109 S.Ct. at 2946-52; ac-
cord Prejean v. Smith, 889 F.2d 1391, 1402
(5th Cir.1989), cert. denied, — U.S. —,
110 S.Ct. 1836, 108 L.Ed.2d 964 (1990); see
also Lockett v. Ohio, 438 U.S. 586, 604, 98
S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978)
(Constitution requires that sentencer “not
be precluded from considering, as a miti-
gating factor, any aspect of a defendant’s
character or record ... that the defendant
proffers as a basis for a sentence less than
death.”) (plurality opinion, original empha-
sis); Buttrum v. Black, 721 F.Supp. at
1307 (Penry forecloses claim that death
sentence unconstitutional because defen-
dant “emotionally 12 or 13” at time of
crime).

The phrasing of this claim suggests that
Pruett contends the jury was unconstitu-
tionally precluded from considering evi-
dence of his mental retardation, by virtue
of Dr. Tsao’s incompetent assistance. Be-
cause the Court is not willing to recognize
the validity of Claim B, supra, it cannot
consider Claim L in this light.

35. The petitioner in Penry, it should be noted,
had “the reasoning capacity of a 7 year old.”
Penry, 109 S.Ct. at 2952.

The state court records establish that Pruett
served honorably in the military, graduated
from high school, and held numerous semi-
skilled jobs. Pruett was responsive and cogent
in various settings, including his confession and
courtroom testimony. See, e.g., Trial Tr. I at 3;

It may also be that Pruett argues his

counsel’s ineffective assistance unconstitu-

tionally precluded the sentencing jury from
considering such evidence. If that is the
case, his claim is procedurally barred be-
cause it was not raised below, and is with-
out merit in any case.

There was hardly any evidence that
Pruett was mentally retarded or otherwise
suffered mental defect. See, e.g., supra
note 35. Furthermore, the Supreme Court
has recognized that mental retardation and
history of abuse is “a two-edged sword: it
may diminish [defendant’s] blameworthi-
ness for his crime even as it indicates that
there is a probability that he will be dan-
gerous in the future.” Penry, 109 S.Ct. at
2949. As discussed above, Pruett’s counsel
made the tactical decision not to present
the scant evidence of Pruett’s mental de-
fect in an effort to maintain credibility with
the jury and to avoid possible negative side
effects. See supra page 1448 & n. 21.
This would seem to be a reasonable deci-
sion, which did not prejudice Pruett within
the meaning of Strickland v. Washington.
Cf Woomer, 856 F.2d at 684 (drug use not
commonly viewed as mitigating).

IV
[40] Finally, the Court must address pe-
titioner’s related contentions that a motion
to dismiss or for summary judgment is not
a proper method of disposing of a habeas

petition, and that he is entitled to an evi-
dentiary hearing and discovery.

Petitioner points to no cases to support
the first argument. Respondent points to
two cases which explicitly or implicitly re-
ject the argument. See Bond v. Procuni-
er, 780 F.2d 461 (4th Cir.1986) (affirming
dismissal of habeas petition despite new
factual allegations to support theory that

Tr. of 1/15/86 at 9-13. A medical administra-

’ tor and a psychiatric social worker who worked

with Pruett while he was awaiting trial saw no
evidence that Pruett was psychotic or suffered
PTSD, organic brain damage, or anything other
than the general anxiety expected of a person
about to face capital murder charges. See Hab.
II at 130-34, 140, 148-52.

efete ’ ’ are
PEOteR era wed seses
Pe renanmten PaaS,
otare

oo
¢
a
~


1454 771 FEDERAL SUPPLEMENT

appeal argument and was thus repetitious
and not cognizable under Hawks 'v. Coz.
Pet. for Appeal at 30.- This supports the
suggestion that petitioner’s state habeas
claim went no further than the direct ap-

peal claim, which never specifically alleged

application of an incorrect constitutional
standard for excusal for cause.

But the direct appeal argument did state

clearly, “It is a basic premise under both

Federal and State law that the accused has
a right to be tried by an impartial jury.”
Brief of Appellant at 27 (citing, inter alia,
U.S. Const. amends VI and XIV). This
argument was repeated on state habeas,
albeit with more particular reference to the
correct constitutional standard. See supra
note 28. Under such circumstances, it may
be appropriate to consider the claim on the
merits. See Picard v. Conner, 404 US.
270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971);
Smith v. Digmon, 434 U.S. 332, 98 S.Ct.
597, 54 L.Ed.2d 582 (1978).

The resolution of the issue hardly mat-
ters, because the entire present claim has
no merit.

(33] The question of a juror’s impartial-
ity is “plainly one of historical fact,” and a
state court’s finding on this matter is enti-
tled to a presumption of correctness on
federal habeas review under 28 U.S.C.
§ 2254(d). See Patton v. Yount, 467 U.S.
1025, 1036-87, 104 S.Ct. 2885, 2891, 81
L.Ed.2d 847 (1984). Both trial court and
appellate court findings are entitled to such
deference. See, e.g., Sumner v. Mata, 455
U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480
(1982) (per curiam).

[34] Thus, a state trial court’s rulings
concerning a juror’s fitness to serve are
routinely upheld, unless there is no fair
support in the record for the ruling, based
on the appropriate federal standard. See,
e.g., Boggs v. Batr, 892 F.2d 1193, 1201-02
(4th Cir.1989), cert. denied, —- US. —,
110 S.Ct. 2193, 109 L.Ed.2d 521 (1990); Bri-
ley v. Bass, 750 F.2d at 1246—47.

{35] The Virginia Supreme Court prop-
erly viewed the quoted portion of Fried-
man’s voir dire testimony not in isolation,

29. See Trial Tr. I at 266-80 (Friedman's individ-

but in the context of his testimony as a
whole. See Darden v. Wainwright, 477
U.S. 168, 176, 106 S.Ct. 2464, 2469; 91
L.Ed.2d 144 (1986); see also Briley v. Bass,
750 F.2d at 1247 (little weight attached to
juror’s response to exaggerated hypotheti-
cal situation).

It found that Friedman’s views, garnered
from an examination of all his responses,
“would not ‘prevent or substantially impair
the performance of [his] duties as [a juror]
in accordance with instructions of the court
and [his] oath.’” Pruett v. Common-
wealth, 351 S.E.2d at 10 (citing Clozza v.
Commonwealth, 228 Va. 124, 128, 321
S.E.2d 278, 276 (1984), cert. denied, 469
U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370
(1985)).

There is fair support in the record #* for
this decision, which does invoke the correct
constitutional standard. Furthermore, pe-
titioner points to nothing in the record indi-
cating that the trial court in fact applied
the wrong constitutional standard.

The following passage indicates the trial
court did not apply the wrong standard:
Mr. Stallings: Judge, I would move to
strike Mr. Friedman for cause based on
{his voir dire]. I feel that he is predis-
posed towards the death penalty and
could not give a fair consideration to life
imprisonment.

Mr. Phillips [prosecutor]: Your Honor,
predisposition is not the test, and that’s
not what the juror said.... He indi-
cated ... in response to Mr. Stallings’
questions that he could consider life as a
proper punishment given all those cir-
cumstances. He stated that he would
consider it, and he’s indicated that he has
an open mind with regards to all disposi-
tions, Your Honor, and the Common-
wealth submits there is no basis to strike
for cause.

The Court: I’m going to overrule your
objection, Mr. Stallings.

Tr. I at 280-81. The trial court apparently
concluded that Friedman was not predis-
posed towards the death penalty and that
he could give fair consideration to life im-

ual voir dire).


TOPE POLE Te TT TOT

1456

court and the Virginia Supreme Court that
(1) the first interview was not a custodial
interrogation, and that (2) even if it was,
the technical Miranda violation did not
taint the second confession because it was
“clearly voluntary” and made only after
Miranda warnings and explicit waiver of
constitutional rights. See Pruett v. Com-
monwealth, 351 S.E.2d at 4-6; see also
Boggs v. Bair, 892 F.2d at 1198-99; Rook
v. Rice, 183 F.2d 401, 404-05 (4th Cir.1986),
cert. denied, 478 U.S. 1022, 106 S.Ct. 3315,
92 L.Ed.2d 745 (1986). See generally Ore-
gon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285,
84 L.Ed.2d 222 (1985) (second confession

given after Miranda warnings and waiver

admissible even where first given without
warnings).

Claim K: Ineffective Psychiatric Assist-
ance at Sentencing

[38] Petitioner did not present this
claim in constitutional terms on direct ap-
peal. He did not allege in his state habeas
petition the ineffective assistance of trial
counsel as cause for failure to do so. Nor
did he maintain his claim of ineffective
assistance of appellate counsel on collateral
appeal. Thus, the claim is defaulted and
not subject to review.

This is really just a restatement of
Claims B, H, and parts of G, anyway. It is
therefore subject to the same analysis, i.e.,
not a ground for relief because largely
procedurally barred, based on new rule
which does not support collateral relief,
and otherwise without merit.

Claim L: Unconstitutional to Execute
the Mentally IIl

[39] This claim is grounded solely on
the arguments advanced in Claim B, and
upon the affidavit of Dr. Neil Blumberg,
submitted in the state trial court habeas
proceedings. That affidavit generally
states that Blumberg found Dr. Tsao’s

ing circumstances in which confessions held
involuntary).

33. “A prisoner is not entitled to use habeas
corpus to circumvent the trial and appellate
processes for an inquiry into an alleged non-
jurisdictional defect of a judgment of convic-
tion.” Slayton, 205 S.E.2d at 682 (emphasis
added).

771 FEDERAL SUPPLEMENT

evaluation of Pruett unreliable and incom-
petent.
Pruett required one or more of the follow-
ing: neurological examination, neuropsy-
chological testing, a general physical exam-
ination, or laboratory studies, such as brain
or brain wave scans.

Both the habeas trial court and the Virgi-
nia Supreme Court held this claim proce-
durally defaulted under the rule of Slayton
v. Parrigan. Pruett had contested the tri-
al court ruling as improper, because “(tJhis
is a jurisdictional claim which cannot be
defaulted.” Pet. for App. at 32 (citing
Slayton v. Parrigan );*° see also Petition-
er’s Reply in Opposition to the Common-
wealth’s Motion to Dismiss and Brief in
Support at 22-23 (“This claim is that no
court has jurisdiction to sentence a mental-
ly ill person to death, not that there was
some error in the trial or sentencing hear-
ing.”).

But this claim is subject to dismissal on
the merits however it is viewed.

Pruett supports this claim by citation to |

a single case, Penry v. Lynaugh, 492 U.S.
302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989).34 There, the Supreme Court ad-
dressed the same argument Pruett appar-
ently advances in this claim—that a defen-
dant’s mental retardation is sufficient,
standing alone, to render his execution a
violation of the eighth amendment. A plu-
rality of the Court, in an opinion written by
Justice O’Connor, held it is not:

In sum, mental retardation is a factor
that may well lessen a defendant’s culpa-
bility for a capital offense. But we can-
not conclude today that the Eighth
Amendment precludes the execution of
any mentally retarded person of Penry’s
ability convicted of a capital offense sim-
ply by virtue of their mental retardation

- alone. So long as sentencers can consid-

34. Petitioner makes no suggestion that he is
actually insane, such as to bar his execution.
See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct.
2595, 91 L.Ed.2d 335 (1986); Roach v. Martin,
757 F.2d 1463, 1474 (4th Cir.1985) (absent evi-
dence of insanity, claimed new evidence of peti-
tioner’s having Huntington’s Disease would not
affect death sentence).

Blumberg apparently believes.

Sa) apessi25, ere ee
SRY ~ Siaess Sih
Soe) S 50 805 >t . 3 wR Noa
RERERSSRSRECEEEEIEER ER RSS
SERRE
Sbeses > SeeEtOS SaRRRss «oo


ruett
‘and
wrred

at the Harveys’ home. However, when
asked to give the police more detail, Pruett
stated unequivocally that he raped Mrs. Har-
vey. _ *
(Q): Allright. You said you did have sex
with her?

[A]: Yes.

[Q): Before or after you stabbed her?
[A]: Before.

[Q}: Okay. Before or after you tied her
up?

[A]: Before.

[Q}: Okay. Was the sex voluntary?

{A}: No.

[Q}: You had to force her?

[A]: Yea.

[Q): How did you have to force her?
[A]; By asking her. I mean, ah, with the
knife.

[Q}: With the knife.

[A]: Yea. So then she said no problem.
[Q}: How did you, how did you force her
with the knife?

{A}: I don’t know.

(Q): Did you threaten her? Did you, ah

{A}: 1 said, well, yea, I said I want some
sex. I want some sex and, ah, then she
said, okay and then I put the knife down.
[Q]:; Okay. So you didn’t have the knife
when you were having sex with her then?

[A]: No.

Read in the best possible light for Pruett, his

argument boils down to an assertion that

her at knife point. Hardly consensual inter-
course by any standard. The most favorable
reading of Pruett's confession still provides
nothing other than overwhelming and uncon-
tradicted evidence that Mrs. Harvey .was
raped.

We find no merit in Pruett’s contention
that his lawyer was ineffective because he

failed to appeal the denial of a first degree
murder instruction on the basis that he could

5. Before the Virginia Supreme Court on habeas
review Pruett argued that if Stallings had proper-
‘ly investigated his psychiatric state, he would

have discovered that Pruett lacked the mental

PRUETT v. THOMPSON
Cite as 996 F.2d 1560 (4th Cir. 1993)

1569

have committed a premeditated killing of
Mrs. Harvey without raping her. There sim-
ply was no evidence to support such an in-
struction. There was no error, constitutional
or otherwise, in the trial judge’s refusal to
give the instruction, so it is not ineffective
assistance of counsel for an attorney not to
appeal a patently correct ruling. We also
note that the jury was instructed on the
elements of rape, specifically found Pruett
guilty of rape, and sentenced him to a seven-
ty-five year prison term for that offense.

Failure to Offer @ Lesser-Included Offense
on Deliberation and Premeditation
Instruction

Pruett makes the oblique assertion in his
brief that Stallings’s failure to ask for a
lesser-included offense instruction on the ba-
sis of lack of premeditation constituted inef-
fective assistance of counsel. This is the first
time Pruett has raised such a claim.

[12] We note at the outset that this claim
of Pruett should be denied because he failed
to exhaust it in the Virginia courts. See 28
U.S.C. § 2254(b); Rose v. Lundy, 455 US.
509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
New theories and claims may not be inserted
into a case every time it reaches a new court.
See Crowell v. Zahradnick, 571 F.2d 1257
(4th Cir.1977), cert. denied, 439 US. 956, 99
S.Ct. 357, 58 L.Ed.2d 348 (1978). The al-
leged constitutional error was never raised or
considered by any court before this one, and
we hold that the claim should be dismissed
for failure to exhaust. See Crowell, 571 F.2d
at 1258. Further, we note that if Pruett’s
claim had been presented to the Virginia
courts on collateral review, it would have

cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42
L.Ed.2d 804 (1975), because he did not raise .
this claim on direct appeal. Therefore, the
very claim on which Pruett relies to establish
cause and prejudice for the procedural de-
fault of his claim with respect to lack of
premeditation under Beck is itself subject to

capacity necessary to form: premeditation. As
we conclude at Part IV, infra, Stallings’s investi-
gation was objectively reasonable. ~ ba


. law.

1570

dismissal for failure to exhaust and, as well,
would be procedurally defaulted under state

Murray v. Carrier, 477 U.S. 478, 489, 106
S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986), holds
that “Rose v. Lundy, 455 U.S. 509, 518 [102
S.Ct. 1198, 1203, 71 L.Ed.2d 379] (1982),
generally requires that a claim of ineffective
assistance be presented to the state court as
an independent claim before it may be used
to establish cause for a procedural default.”
We follow that rule in this case. There has
been no presentation to the Virginia courts of
this ineffective assistance of counsel claim, so
it may not be used to establish cause for a
procedural default in this case.

While the question is not before us, it is
not out of place to observe that even had the
claim not been procedurally defaulted, it
would have required examination of Stall-
ings’s tactics, in view of the overwhelming
evidence of guilt, in conducting the trial prin-
cipally as an appeal to the jury in the sen-
tencing phase. The record does not suggest
any merit to that claim.

The Actual Innocence Claim

{13} A petitioner who has failed to meet
the Murray v. Carrier cause and prejudice
standard may still have his defaulted habeas
claims reviewed if he can show that he is
actually innocent of the crime for which the
death penalty was imposed. Sawyer v. Whit-
ley, — US. ——, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992). . “[T]o show ‘actual inno-
cence’ one must show by clear and convincing
evidence that but for a constitutional error,
no reasonable juror would have found the
petitioner eligible for the death penalty un-
der the. applicable state law.” Sawyer, —
US. at ——, 112 S.Ct. at 2515. .

The Offered Lesser—Included Offense
Instruction Which Omitted Any
Reference To Rape

First, we have an insurmountable difficulty
in finding the requisite constitutional error.
To require the trial judge to give the lesser-
included offense instruction as offered would
be simply inconsistent with both the indict-

996 FEDERAL REPORTER, 2d SERIES

ments and the facts established by the rec-
ord. If Pruett had received the instruction
he sought, been convicted under it instead of
the capital murder statute, but still found
guilty of rape, as he was, he would have been
guilty of all of the elements of capital mur-
der, but just not convicted of it, a logical
inconsistency too great to overcome.
assuming for argument that the trial court
committed constitutional error by failing to
instruct the jury on the lesser-included of-
fense at trial, see Beck v. Alabama, 447 U:S.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980);
cf. Briley v. Bass, 742 F.2d 155 (4th Cir.)
(stating that no instruction is required when
there is no support in the evidence for the
lesser-included offense), cert. denied, 469
U.S. 893, 105 S.Ct. 270, 83 L.Ed.2d 206
(1984), the result would be the same.

We decide without the slightest hesitation
that such a claim does not pass the Sawyer
reasonable juror standard. Here, there was
abundant evidence from which even the most
cautious juror could only have found that
Pruett raped Mrs. Harvey, not the least of
which is Pruett’s confession to that crime.
Any medical evidence (seminal fluid in Mrs.
Harvey’s vagina and lack of lacerations and
bruises to Mrs. Harvey’s genitalia) that
Pruett says was consistent with consensual
intercourse is not only consistent with rape,
it is not even inconsistent with the unquali-
fied fact that consent was obtained at knife-
point, not arguably consensual. We think it
is abundantly clear that Pruett cannot show
that if the jury had been given a choice
between capital murder and first degree
murder on the grounds that there was no
rape, no reasonable juror would have chosen
capital murder. Indeed, the jury separately
convicted Pruett of rape. Therefore, Pruett
is not actually innocent of the crime for
which the death penalty was imposed on this
ground.

The Lack of Premeditation Claim
as Measured Against Sawyer
v. Whitley

[14] We will also assume arguendo, al-
though it is an assumption that cannot be at

Even

ARAM phos pepsin
ia Pa Weert pay tt. ee


tania

the rec-
truction
stead of
1 found
ve been
al mur-
. logical
Even
al court
ailing to
ided of-
147 US.
2 (1980);
ith Cir.)
ed when
for the
ied, 469
1.2d 206
1e.

esitation

Sawyer
aere was
the most
ind that

least of
it crime.
1 in Mrs.
tions and
lia) that
msensual
rith rape,
unquali-
at knife-
2 think it
not show
a choice

t degree.

e was no
ve chosen
eparately
re, Pruett
rime for
2d on this

laim
yer

tendo, al-

inot be at

= gel

PRUETT v. THOMPSON 1571
Cite as 996 F.2d 1560 (4th Cir. 1993)

all maintained,® that the trial judge should

have instructed the jury on the lesser-includ-
ed offense on the grounds that there was no

premeditation.

Even when we are overly generous in con-
structing his arguments for him, Pruett is
unable to convince us that “no reasonable
juror would have found the petitioner eligible
for the death penalty.” Sawyer, — U.S. at
—_, 112 S.Ct. at 2515. Pruett’s argument
that he lacked deliberation or premeditation
based on “the frenzied nature of the killing,”
Brief of Appellant at 19, is based on what is
admittedly a self-serving reading of his con-
fession. That reading of the confession is
quite strained, overlooks inherent conflicts in
his story, and is not supported by the confes-
sion as a whole. Even assuming, however,
for argument, that the evidence he claims is
in his confession—that he did not mean to do
it, that he must be crazy for doing it, that he
did not plan to do it, and that he did not
know why he did it—is all uncontroverted by
other portions of his confession, a reasonable
juror still could infer premeditation from
Pruett’s attempts to escape detection by dis-
carding his clothes and his subterfuge during
his initial interview with the police, the vi-
ciousness of the multiple stab wounds, see
Clozza v. Commonwealth, 228 Va. 124, 321
S,.E.2d 273, 279-280 (1984), cert. denied, 469
U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370
(1985),” and the fact that he had the murder
weapon with him in the first place. Thus, a
reasonable juror could infer, from Pruett’s
own statements, that he took the knife up-
stairs to kill Mrs. Harvey as well as to force

6. Because the instruction was never offered.

7. The Clozza case involved the brutal rape and
murder of a thirteen year old girl. In addressing
Clozza’s argument that he lacked premeditation
for the murder, the Supreme Court of Virginia
decided that in determining premeditation, “the
jury properly may consider the brutality of the
attack, whether more than one blow was struck,
the disparity in size and strength between the
accused and the victim, and the defendant's. ef-
forts to avoid detection.” 321 S.E.2d at 279.

8. Specifically, Pruett claims trial counsel placed
undue emphasis on the impact of a death sen-
tence on Pruett’s family; failed to investigate
possible avenues of mitigation; failed to develop
other evidence of mental illness, developmental
problems, organic brain damage, and post-trau-
matic stress disorder; and failed to present some

her to have sex with him. There simply is no
basis for saying that no reasonable juror
could infer premeditation from Pruett’s ac-
tions, even taking the facts in the light most
favorable to him.

Because Pruett has demonstrated neither
cause and prejudice nor actual innocence, we
decline to reach the merits of Pruett’s de-
faulted Beck claim.

IV.

Pruett also alleges ineffective assistance of
counsel that entitles him to have his sentence
and convictions set aside because of Stall-
ings’s failure to adequately communicate with
Dr. Tsao, the court-appointed psychiatrist,
failure to follow up on Tsao’s findings, failure
to develop a guilt-phase strategy, failure to
develop and present evidence that Pruett
would not be a continuing threat to society if
he were incarcerated for life, and failure to
develop mitigating evidence ® for the penalty
phase of the trial. After a review of. the
record, we are of opinion that Pruett did not
so receive ineffective assistance of counsel.

Pruett’s claims really fall into two catego-
ries: First, that Stallings’s decisions not to
argue that Pruett would not be a continuing
threat if incarcerated and not to. develop a
guilt-phase strategy based on consensual sex
were unreasonable, and second, that there
was ample evidence of psychological distur-
bance which could have been offered in miti-
gation that Stallings did not. adequately in-
vestigate or present.?: We deal with each of
these contentions in turn. Dro

evidence that trial counsel had found during his
investigations.

9. Pruett’s claims that Stallings improperly at-
tempted to persuade the jury to identify with
Pruett’s parents and that Stallings did not offer
every possible piece of mitigating evidence do
not merit lengthy discussion. These decisions
are ones of trial strategy, and attorneys have
great latitude on where they can focus the jury's
attention and what sort of mitigating evidence
they can choose not to introduce. See Clozza v.
Murray, 913 F.2d 1092 (4th Cir.1990), cert. de-
nied, — U.S. —, 111 S.Ct. 1123, 113 L.Ed.2d
231 (1991). Stallings’s decisions in those re-
spects were quite within the bounds of effective
representation.


1572

A.

Pruett’s first group of claims asks us to
hold that Stallings’s strategic decisions were
manifestly unreasonable. Stallings’s testimo-
ny at the plenary hearing establishes that he
did not pursue the future dangerousness ar-
gument because of a carefully considered
trial strategy.

“"115] Stallings knew that Dr. Tsao had
found that Pruett presented a threat of fu-
ture dangerousness to society. Stallings
talked to Tsao and explored with him the
bases for that opinion. When he learned
that Tsao would not change his mind, he
decided not to pursue an argument that
Pruett would not present a danger if he were
incarcerated. He explained his reasoning on
cross-examination as follows:

[Mr. Anderson]: There is one final com-
plaint that you denied the possibility of
the defendant adapting well to incarcer-
ation and, therefore, perhaps not being a
future danger.

Did you think that the jury would be
more impressed with evidence of Mr.
Pruett’s dangerousness to the communi-
ty at large or whether or not he would
be a danger if confined in prison?
Which one do you think the jury would
be more interested in?

(Mr. Stallings]: We were talking about
community at large. That was a real
tactical thing we were playing with. I
wanted to say that David. would never
get out of prison. I was handcuffed a
little bit on that as to how far the judge
would let me go. These were all confer-
ences we had. I don’t know if it’s on the

- record or not, and the Commonwealth

~ gaid if I opened that door, they could get

" into parole eligibility so I kind of walked
a thin line there and I think the Com-
monwealth got into dangerousness in
their closing.

10. Stallings successfully kept the matter of pa-
role out of the case, and as well secured an
instruction by the court for the jury. not to con-
sider Pruett’s dangerousness if imprisoned.

11. Pruett claimed at one time that he had killed
eight women in Vietnam after having consensual
sex with them. ' These claimed events ostensibly

996 FEDERAL REPORTER, 2d SERIES

I was trying to present to the jury the

‘ myth that if they give him life, he would
be in there for the rest of his life and he
would never get out and, again, I guess
that’s where I was coming from was my
concern on it. I wanted to make the
jury think he will never hurt anyone in
society again. He is going away forever.

Q: Going back to Doctor Tsao’s evalua-
tion and when he was asked to deter-
mine whether Mr. Pruett was a future
danger, did you at the time think that he
should primarily focus on his dangerous-
ness generally or his dangerousness to
other inmates and people in the sys-
tem—community.

A: That’s what I would be dealing with.
Again, I don’t really want to talk about
dangerousness to the prison community
because the best case scenario, that’s
still a factor.

If they give him life, I don’t want Tsao
getting up there saying if you give him
life, he won’t hurt anyone else, but he
sure could hurt someone in prison.

In light of the circumstances in which Stall-
ings made his decision, we are of opinion that
it was objectively reasonable to try to get the
jury to believe that a life sentence meant
confinement for life.!

[16] Pruett also contends that Stallings
failed to adequately investigate the facts of
the rape. The testimony at the plenary
hearing reveals that Stallings did not pursue
the late claim of consensual sex because it
was not credible. Pruett maintained that he
had raped Mrs. Harvey until sometime 4
week or so before his trial. Pruett made the
assertion of consensual intercourse while
talking to Stallings and Dougherty about
post-traumatic stress syndrome and about
the fact that Pruett’s killing of Mrs. Harvey
did not match other killings he claimed to
have committed in Vietnam." Pruett was
told that the main difference between his

were the initial stressor that caused Pruett to
suffer from post-traumatic stress disorder. See
generally American Psychiatric Ass'n, DSN-III-
R § 309.89 (3d ed. 1987). Pruett does not press
here his claim that he committed these killings,
which were not supported by any available mili-
tary records.

PHONE RSIS

we

et ry
ff

£4. PORES oie hast Nene
Ste aces oa 5 See

a ee a O eh

iene

- webRe

ee

4 ang ah 2.
oe a oer

REUBEN , Slave Age mh per hoy 455, Exe. Fapers of Gov.

Campbell County, Virginia, Court of Oyer and Ter-
Miner, July 5, 1819 - Reuben, the property of
William Swinney, had ruped Sarah Fox, widowed,
sheriff Jesse Harvey attested that he hanged
Reuben on August 20, 1819, Transcript copied,

Auditor's necords, archives of Virginia, Item
153, Box 4, Envelope 1819,

VIRGINIA-BOOK AND MAG. EX.

REUBEN, A slave Executed 12/31 24

Orange County, Virginia, trial Nov. 24, 1824,
Date for execution set for December 1, 1824,
Sheriff attested to execution with payment of
#250,00 being made on 4-18-1826 to Henry Hern-
don, administrator of kstate of James Dennison

Aud, Recs., A rchives of Va., Box 5, 1826

Envelope, 153 Item,

Murdered bis master, James Dennison, by Lustwouchting huis 047 Whe
t0ad. (pune Comm thed 10/45/29. baochted tin off is horse batt
A Stick and thers beat biin to Séath with (+>

box 286, Exteutive Papers of Govern

“Trial record not found but —— |
Slave REUBEN ("illien seitenyCXeculed ls 76

(Need confirmation)
"Middlesex Co., Vasey 9-30-1776-There is now in the jail
of this county, wnder sentence of death, a negro man who
says he ran away from his baster Blake Baker in North
Carolina, about 16 years ago. e was committed by the
name of William Britch, but on his trial he said his
name was Reuben, The said slave is valued by the court
at 75 1. Virginia currency; and as he is not to be execu-
ted till Oct, 18, 1776, his owner is desired to come in
the meantime and prove his property. (Ad signed) Mau-
rice Smith, Sheriff." VIRGINIA GAZETTE, Williamsburg,
Vasey 10-11-1776 (3/1) ee YY3 Muller Coiuty Crile
Bok (70 IA-17E83 To ptaturrce Sito, sherri#, Sir Sutatniira tag Tp y,
Nusprtes tir the Teel Of Weulbeya, @9CUO Mitt? shee Le/o2 Vg to ithe.

Lukir for fifiny Ra. Te ditto ter exkeutny Lhe, So, freuben ~ L Se,

C, VA, OCTORFR 13, 1950

= a ee aos

PENINSULA ENTER te
ling dee time in Chester with her emijer . : ' isposes. |
ORES Om | darighter and family. While there Pr A apr . aed i A pone : P
‘Owers.}° Miss Alleen Jones, of Philade}l-/s>4 will attend the wedding of bar Brings FPQUaINg 1s vy es

PD price | Phia, is the guest of her mother, tndon in Wilmington, Del, Oc-| Shortage Te Shore! One Death Sentence!

i Mrs. Ida Jones, - > j tober 14.

ket i ° ; Pe Ne at Fa
aot Mrs. Nathan Hit te % pedtent| Sympathy ts extended to the fan- Arter from page 1 & te anetioned from page I :

fin the Norfolk General Hospital, ly of Mra. Elizabeth Walker, who/lies aré small. They don't necd & | aught in the neighborhood before

-e chair- | Norfolk. if passed away at her home, Satur lot of @pace, but they would like ihe could’ attack any. other per-

Re ae ip: } jday. Mrs. Walker was one of the mighty well to find something| sons against whom he held a
-*ennsyl- ‘2 ¥. 0. 'W: Sawyer is conduct- joidest residents of our town, being not too fax from the Fort (have! grudge. He had worked for West

akes uS/ at the Baptist Church.

thing new, Row

© & revival service In Ondngock a7 years ‘old. « ve {*2 be quickly availablé) and with|and his police record for Vicious | ployment in. thi

¥ revolving | Mr. and Mrs. William F. Clark Mr. William Pruitt, of Penns¢

modern convenienocs. conduct was not a sho:t one. * { possible an
*| ville,” NL’ Dye spent the  week-e In_ ease you don't) have just |” ‘Other cases heard this wack were {8tain, tan be

nd ; ; erejers
instead | of Buffalo, N. ¥,, are visiting Mr} ith his parents, Mr. end Mrs, /°™2¢tly what's asked for, but think | Commonwealth vs. Sam White, | livestock consum

j. and Mis. Walter. Clark, ‘ | Selby Pruitt, who accompanied him{70" Might’ be able to make it\ appeal from trial justice for

Damage due tk

‘ ) ‘ lt : . insects in Viv,
ons and| Mrs. Julia Quillen” Jones is home on Monday for.a visit with available, don't hesitate to’ volun ; Sperating motor vehicle after sus- | #osecks 1m e

‘pension of operator’s © license,

plead guilty, given! 2 days in’ jail

ay and making friends. They're ‘and fined $50.00; Commonwealth
delighted acconding to. all reports '¥s' Ernest James Simpson, appeal

‘oes and, | 5Pending some time in Townsend

(With the friendly -reception they | trom trial justics, far opersting

Mr. Elva Jester is | very ill at! witl ‘be ‘glad to Jearn that he is ampton. Apparently: they have ire-! reckless manner, plead. guilty and
his home on Clark Street. His: &°tting, along nicely. ceived a typical warm - hearted (fined $25.00;.. Commonwealth vs
friends wish him a speedy recov.; Mr. Webster Cluff, of Boston | Pastern Shore ‘welcome. \David McClamy, for grand larceny,
ery. <p Ses Muss, is spending <a short. leave | - ce TTT “| plead guilty, given 4 years in

Mrs. Wafice” Hurley. of New With his family here. He will be Husband Of : _/ penitentiary; — Commonwealth.” va
hutch alted hee Safer Mrs.) Sccompanied home by them to} Former Chincoteague | Roland Gray Layton, appeal from

/ 4 make their home in Boston while ; -14 trial justice, for operating motor
J Sermee Demian he WhEH Si acalicned they intact 8.1 Woman Killed | jenicie with an! over “pros

COGLA es F d % Continued fron pa~o 1 j  |¥eight, fined $1665.00,
Conti =, ;

‘ ’ 4 i
Mr. and Mrs. Charles Showard, Patt hor Commonwealth vs Alfred Ray.

Mr. Bobby Darby Pes j
Workman, —” Chirles ficld, for murder, found guilty. af | |

Sara MecCteary visited Mr. and!

bs
Mrs. Otis Melvin over the week-| MY and Mrs, Ralph Selby, Sr| tance, of Sath st, Upland, Weard | marder"in first degree ‘and “sen<! m sipted Bata

; ‘ e . *

PAY RRR MOA cep ea Nts as wah ee hall and esoah Stewart Baker, ae a crackling noise and on investi-/tonced” to death’. Cémmonivealtn
et jand Mrs. Newman Conant, and Mr. gation found Griest’s unconscious} Shah ae

Mr. and ‘Mrs. Curtis Ctuf have’ Ralph Laws attended the Kiwanis : » | Ne Rebert Thomas, for malicious

Ay f ¥ he 5 s
returned home, after visiting their’ convention in Washington, D. C. ee tcae Cie Rods, ; power] maiming, plead guiky te asgapit

: ee oe ip. Bort: Maes ead ew + Wet hyiat ‘ The victim was taken ‘to Crozer | jait; Commonwealth ys Carl Dais-
b Sai : Mr. and Mrs. Ernest Gall,” of | Hospital, put died © without Plas is fon grand’ labohety: plead
Mrs. Nelson Lewis and son, of: Washington, D. C., spent last week; g2ining consciousness. He had sul-| ciley to petit larceny,. ven
Snow Hill, were / guests © of her with their parents. They were a¢-| fered ‘burns of the face and body. | months in jail; Poentaaearadch v3 |
mother, Mrs. Ella Cherrix, last! companied home by his father, Mr.} Born’ in Chester, Griest spent! finfred © Frances Tyler,-for per-
z ; z +, |B
~ eee i ber of Grace | Mennonite , onthe a 7
Mr. Claude Snead, of Wilming-} Mr. Gall has deft. his place of} mem : 2 | Commonwealth v§ Calvin James !
Austrian | ten. Del. is spending ‘seme time! business for thirty years. eapeid m Christ Church, 7th | smith, for manslaughter, fined }
1 ad  twith his ~ mother, Mrs. / Lottie! Mr and Mrs. Donald Frazine| *™ Sib ma Diets Th {#25.00; Commonwealth ys Robert |
peo j Snead. land little son, David, of Grand! ,, Sufviving spate Spal he | Charles, pais arg Sapiro
ut at. 5 ict a. ‘ ichi eit | NER: PEAS 5.1 Se 1 OF) tur dent spirits, fined $500
di bef re-| _ The Ludies Auxiliary to the Fire} Rapids, Michigan, are ee mea | Chincoteague, Va, four children, | ond Siven py catia bi jet apol
o | Co, will hold a bake at the gas P2rents, Mr. and Mrs. Clarence | Richard, of Aldan, Pa, Mrs. June’ > a toes |
nd held | offic on Saturday maring, Oc-| Beebe They were accompanied j SCM Of 2 Woodlyn, Pa, Mrs. "an. tottowing div ees
to “join! tober 14. | here by his parents and brother | \ cma “Sonos of Che we Pa! e following divorce cages have |
: ra : F A jand wife who spent a few days|-‘° ¥ Sneststy: +> been heard this week: Katy Beri- |
ere are Me Mrs. Otis Melvin and Mrs. Tho-! here before returning to Michigan. | #29 Harold, Jt, of “Woodlyn, Pas! ine Baker Finney, ys Golden Fin- |
re 4 McGrath} mas Skeigh | visited Mrs. Harry’ : ;and a brother, Leroy, of Chester. ney, divorced 2 vinculo matri- |
Hees nd Gulda ! Matthews Tuesday © evening at Mr. Bill Jones, son of Mr. and | There are four grandchidren,  ” |monii; Ventrice Bloxom Hunt vs |
day but | Greenbuckville. 2 Mrs. Herman Jones, and Mr, Pete Mh Se an Charles C. Hunt, divorced a vineu-
bday Savage, son of Mr. and Mrs. Brat- Auxiliary At te trimonii; Simon W.° Milburn
Hed. } Mr, and Mrs, Arthur Tatem an-!;;. * an -t , jlo matrimonii; Sim oM
tie Savage, left this week for ivs Lavanah C. Milburn, divorced
»rchestra | nounce the birth of a son et the training in the U. S. C. Gj Cape Tasley Elects Bid ne - . ' 2 y B
fr | Memorial Hospital, Nassawadox,) yay No J Mr. Richard Rogers, | New Officers \2 Vinculo ma FUORI, aa Be
nd from gee Porte Se Myo af ay ay eh kN jNolin ‘vs Richard E, Nolin,” di-
wage the | October 4t a son of Mr. and Mrs. Howard Rog-| ae eT enapkd sg wincdld -mnattigendi: ve |
> for; Mr. and Mrs. Henry Ackermann, ©!s, enlisted inthe’ Air Corps and! The Ladies’ Auxiliary of the | 6 ett Nuttall va Prank C. Nut-}
vy, for; a if | Croc: u ‘an {
nuryy ' of New York City, spent the week- toft. for Texas, Tasiey Volinteer Fire Company H, Ir, divorced. a xinevlo matri- |
ore ri : ‘ { ; hus ‘elected: officers for the Aax-|'P!r Ji, ei¥ore a
2 ,.,, end with her parents, Wr. arc Those attending the furteral of °° * 2 Hmonil. }
nbires ; Mrs. Curtis Cuff. ; jc. Harold Griest in Chester, SE AE ssc cage ea Herman Lee Smith vs Rose |
quietly | Mr. and Mrs. Wheatley Thorn-en September 27 were Mr: and Cotler: Vice-President Mrs fe Jeanette Smith, divorced a vincule |
1s still ton, of Harrisburg, Pa., spent the Mrs. Joshua Hudson, Mra. Ray oth Gladding: Setretars, Mrs matrimonii; Betty Jean Snider ve
| week-end here with his mother Quillen, Mrs. Bertie Clayville, Mrs. Viva Davis ‘and ‘Treasurer, Mya |Rotert L- Snider, divorced a vin- |
he Uni-/ and other relatives. :/da Timmons, Mr. and. Mrs. John NeWie Mason: ~.““}ento matrimonii; Maxine M. Boole}
oad? ms Fy Merritt, Mr. Joe Quillen, Mr.'° i eagle vs Harvey J. Boole, divorced a
A et tk and Mrs. Harry Collins, Mr. William Hudson, Mrs. Clara Hub- mensa ‘et thoro: Meryis’ Leona
alin Who {and Mra, Charles Collins end Mrs. | Ate a2 t ag Trower ,  boghte
o U, S$. Edn Cobike ca Se eae bard, Mrs. Mildred Timmons, Mr. $C wm . | @urtis ¥8 John E. Curtis, divorced
ar i Sake te Seinitiatiod ang 0M! snd Mrs. Grayson Birch, Jr. and Mr. Taylor Finney spent Sun-|% ™ensa et there; Hillman D.
rt, ri i8sis 4 | Mrs. : . ae a sun- : wy “:
un Mrs, Clifton” Lewis, dwy with his sister, Mrs. Roland | Hopkins vs Levina M. Hopkins,

‘ould be? Mrs. Robert Kehitipand Hittle ate and Mrs: Curtis Cluff. mo-/Phillips, in Wachapreague pdiverced a mensa et thoro: Janie
1 #6 in. | daughter, of Pittsburgh, “Pages re tors? to Chatham. Mass. to Bo er at , jJohnson vs William Johnson, di-
“ a , . , reer , , — ah aS »!

41 .

orfolk. His friends get in the tip end part of North: | motor vehicle in. ia careless ‘stored corn

the newer - vari
corn, ranges f£
under ‘normal ;
percent in sev
The two most d

the rice weevil
mois grain moth

that the chemic:
ing to the dire,

vith the -packag
The ‘material

jaud battery, given <12 months in P. I.
source, of suppl £

{
week. | Charles Gall. This is the first time| his life in the city. He was a/. ry, fined $100.00, ¥

“On Saturday 4
at 7:30 po m.,
Donkey basebal
lights on the ¢
ton’ Field on
is an event ‘f.
amusing “incide:
The opposin
pitted against
the Legion anc

i senting” Chined
} Fire Co.

Fhe admissior
children, .30. ’

}
{

FS


RIPPY, Walter, black, hanged Tazewell CH, Tazewell, VA, March 27, 1908,

“Richmond, Va., March 27.-Walter Rippy, a negro was hanged at Tazewell Court
House today for criminal assault upon Mrs. Mary Dancey.”-Constitution, Atlanta, GA,
March 28, 1908 (11/2).

a”

*&

i STR

| Assailant of Two Women Is

Saved from Mob’s Fury.

HE! CONFESSES DOUBLE ‘CRIME
| :

eee een -

cer’ Pistols, Hustled Throw Mod of
Miners at Pocahontas, ¥4., pe! in
Sealed Freight Car, and Hurtied:to Jail
at Tazewell—Speedy Trial Assured.

‘

|
|
|
|
|
|

.
“Sportal to The Washington Poat
Tnzewell, Va., Feb. 14.--Woalter ip-
| pey, colored, aged twenty, |th@ contesucd
assailant of two women, near ae re
‘is in jail here, after narrowly* e3cajjing

{lynching at the hands of a m@b >! angry

‘miners. He is under strong rd, np it
ia rumored that a mob ia gn ‘ts way
| here from Pocahontas to.wreak yense-

ance upon hin,

One of the. negro'’s victims
and the other colored. Wed
noon, at Hoissevain; he over

was white

‘ |eolored woman, the wife of James Cooles,

‘ ‘and yesterday afternoon, nea
i town, he attacked. in her ho

, Browinns-

- 1A. Dancy, the widow of a mingr, who was

a few months ago killed by
In the mines, Mrs. Dancy
by the negro in the presente
woman who, was with her, and her little
six-year-old) son, whom he] {frightened
q with a pistol. < |

Captured While Asl¢ep, = |
Rippey’ fed to the” mountains and

n exp.os¢ion
as aanatlod

captured while asle in a Dywerhause
at Coulvale, 00 .
‘He was brought to the Po
where it soon became ‘evid
assembling. mob would ov
jaier and lynch him. Inete
for the. regular’ train, the| negeo was
hustled out of - Pocahonta
o'clock to-day in a baggage c
the Pocahontas yard engine.

hontas jail,
t thut the
rpower the

Bathercd at “Pocahontas | early this

morning and were waiting for -the ne-
gro to be taken from: the! jail.to. the
regular train, which leaves! Pocahontas
about 12:30 o'clock. rentud taking the

negro from the Pocahonta
railroad station, the mob attempted! to
seize him, but with drawn) pistols the
officers forved the mob; back until they
could shove the negro into|the car. As.

soon us he was aboard, sped¢d was made
to Graham, and from Grahkhm to Blue-
field, where a box freight lcar Was Be-
rand aud the negro and ard sealed

in
Crowd at Tazewell.
Great secrecy was observed by. the

of the 'negro to keep the whereabouts
of the party unknown toithe general
public, but when the party). reached the
_Tazewel; station, fully 200, people were
present to meet the train. |.No violence
was offered, however. ij
The negro confessed his crime to
Chief of Police George iva, of Poca-
hontas. The Tazewell authgrities feel
little uneasiness over thejyweport that

1a mob is marching to Tazewell. Court

will convene here next Monday, iand it
.4s thought that no attempt will be
made to prevent a lawfyl trial, the
outcome of which is beyond doubt.
Rippey was tried here the August
term, 1907, for attacking two. girls,
near Pocahontas, but -sufficient evi-

gents could not be. securéd to convict
nim, i

Young Colored Man, Protected by Offi- |

of an uged |

of waiting :

aoout: J2:
r drawn by |

jail to the;

e, Mrz, of beth

|

‘

crossed into West Virginia, where he was ;|

es

railroad company. and officers in charge |.


RIDLEY, Robert, black, hanged at Sussex, VA, on 10/18/1895

| UMVUse Was que RITEC, eo or
* id . . Dias. 5 . —— . die Py ‘ £
| ROBERT RIDLEY | TANGED. '°
| The Sussex Murderer Pays the Pen-
| ailty of Hin Crime, :
| WAVERLY, VA., October 18.—(Special.)
’ Robert Ridley, the negro who brutally
, murdered Mr, Willlams, near Hilda, in
‘this ~ county,’ in December Jast, was
| hanged to-day in an enclosure in’ the rear
i of ‘Sussex jail, About: 400 people were
| prevent. hoping to witness the execution,
; but only a few were admitted within the
COCHINOEO. eo ET IS NL 5 eee
“At 1249 PL M., Sheriff Grizzard-and De-
’ puties Pednegau and Walton entered Rid-
ley's cell and informed him that the hour
for his execution had: arrived, Ridley an-
“nounced himself ready, and, singing .as
he went, marched with firm and steady
step to and. up, on the scaffold, Sheriff

j wished to talk about one hour. Kidley,
ink in a loud, clear voice, gave a ‘sketch

HIS CONFESSION. :,
He stated that he left Mr.: Williams's
house with the intention of getting a

fd, and deliberately shot him, The Judge,
jury, ant prosecuting attornéy had given,
him justice, His statement upon ‘the trial
to .the- effect that . Williams advanced

false. He spoke about. thirty minutes,
THE: EXECUTION,

3“joined-earnestiy<s
Grizzard read the death-warrant, and at
Vw Deputy Pedneau adjusted the rope
and black cap. Sheriff -Grizzard, with

the jall, where, at‘1:i7, when signalled by

upon the scaffold, one ef the officers. in
the cell pulled the rope; and hurled Rid-
ley inty eternity, Se

Life was pronounced extinct at 1:58 ‘by
Drs, Crawford. and Slade, -death being

then ‘cut down, and turned over to a
representative “of a college. This is the
first execution in Sussex since 1379,

(STATOH,

/ un buitonch VE

Mor 19,1595 S ray

Grizzard then asked ‘idley if hé wished |
: tO .say anything..He replied that he,

' seemed “perfectly composed, and, apeak-

of his life and an account. of. his crimé,

kun to kill Williams, got the gun, return-

upon him with a pitchfork was, he said, |

At the conclusion of a prayer and song |
service conducted by -colotet preachers, |

three’ deputies then retired to a cell: in’

Deputies Pedneau and Walton, who stood -

the result of strangnlation. The body -was.

524 115 SOUTHEASTERN REPORTER (Va,

R. H. Pree, of Newport News, and W. L.
Davis, of Portsmouth, for plaintiff in error.
John BR. Saunders, Atty. Gen., for the
Commonwealth

WEST, J. This is a writ of error to a
judgment of the circuit court of Warwick
county, sentencing the accused, Sam Rid-
dick, to be electrocuted for the murder of
one Mary Simmons.

On October 9, 1921, Sam Riddick was ar-
rested for killing Mary Simmons and com-
mitted to jail to await his trial. The great-
er portion of the time he was confined in the
Henrico county jail in the city of Richmond.
On May 8, 1922, he was tried and convicted
and sentenced to be electrocuted on June 16,
1922. It does not appear from the record
whether he had counsel at the trial, but
four days after his trial, the accused, by
counsel, asked the court for a stay of ex:
ecution and for time to apply for a writ of
error.

The record before us does not show any
exceptions to the rulings of the trial court,
and does not include the evidence which was
given at the trial, either for the common-
wealth or the accused.

The petition for the writ of error does
not assign any errors except to say that
the verdict does not show upon what indict-
ment the petitioner wags convicted, that, if
accused had been represented by counsel at
the trial, evidence could have been submit-
ted by him, through counsel, which would
have resulted in a different verdict, and
that the verdict of the jury was contrary to
the law and the evidence.

{1,2] It is also contended by counsel for
the accused that the jury was not selected
and impaneled in the manner prescribed by
law, in that the striking off of jurors was
not done alternately by the commonwealth
and the accused. The record shows that
the commonwealth and the accused each
struck from the panel four jurors and, in
the absence of evidence to the contrary, the
court will assume that the Striking was
done alternately. Besides, it is provided by
section 4895 of the Code of 1919 that no ir-

regularity in the impaneling of jurors shall
be cause for setting aside a verdict unless
objection thereto, specifically pointed out,
was made before the jury was sworn.

The objection to the manner of impancl-
ing the jury being made for the first time
in this court, comes too late.

[3] This court must dispose of the case
upon the record before it and not upon state
ments in the petition, or of counsel in open
court, not sustained by the record. The ree-
ord shows that only one indictment was
returned against the accused, and that that
was the indictment tpon which he was tried.

accused that if he had been represented by
counsel at the trial, evidence would have
been submitted in his favor which would have
resulted in a different verdict. The record
fails to sustain this contention.

The accused was confined in the Henrico
jail in the city of Richmond for many
months, In which he and his friends might
have secured counsel and ordered subpenas
for witnesses in his behalf.

In Barnes y. Commonwealth, 92 Va. 794,
23S. E. 784, Judge Buchanan, speaking for
the court, said:

“The record does not show whether she
[meaning the defendant] had counsel or not;
but if it shows that she did not have counsel,
unless it appears that she was denied that

right, it would not be ground for reversing the
judgment.”

It is not contended that the accused was
denied the right to have counsel.

In reply to the contention of counsel for
the accused that the verdict ig contrary to
the law and evidence, we deem it only nee
essary to repeat that the evidence not being
certified in the record, this objection cannot
be passed upon by this court.

We find no error in the judgment com-

plained of, and the same will be affirmed.
Affirmed.

on
es

(135 Va. 538)
JOHNSON v. COMMONWEALTH.

(Supreme Court of Appeals of Virginia.
Jan. 18, 1923.)

Homloide ¢=>244(1)—Finding that accused did
not shoot in self-defense not sustained.

In a prosecution for murder by shooting
wherein accused claimed that deceased had
cut at him with a knife and that he shot him
while he was about to cut at him again, evi-
dence held insuflicient to support a finding that

the fatal shot was not fired by accused in self-
defense.

Error to Corporation Court of City of
Newport News.

John Johnson was convicted of murder In
the second degree, and he brings error. Re
versed and remanded for a new trial.

By the verdict and Judgment under review
the accused, John Johnson, was convicted of
murder in the second degree and sentenced
to 12 years’ confinement in the penitentiary.
The homicide occurred about 10 o'clock
on a yery dark night on the porch of the
residence of the accused in a portion of
the city of Newport News inhabited en-
tirely by negroes. Doth the accused and
the deceased were negroes. The deceased
was shot through the heart and instantly

It is further contended by counsel for the

killed by a single shot from a pistol in the

$$$

@—For other cases see same topic and KEY-NUMBEit in all Key-Numbered Digests and Indexes

sree try

Vv RIDDICK v. COMMONWEALTIL 595
as (118 S.E.)

hands of the accused. The accused claims
that the shooting was in self-defense after
the deceased had cut at him with a knife,
cutting his coat, but missing his person, and
the deceased was again advancing upon the
accused and about to cut him with the knife.
The testimony of and for the accused (con-
sisting of three witnesses besides the ‘e-
cused, being eyewitnesses of the shooting, his
wife, his daughter, and an apparently dis-
interested witness named Thomas, all ne-
groes) establishes these facts, unless this
testimony would have to be disregarded as
in conflict with the testimony for the com-
monwealth. The following physical facts are
also in accord with those just mentioned,
namely, the policeman, a witness for the
commonwealth who came to the scene of
the shooting soon after it occurred and ex-
amined the dead body of the deceased, found
that a knife was in a hand of the dead man
us he lay on his side. Further, the chief of
police, to whom the accused went and vol-
untarily surrendered himself on the same
night of the homicide, testified that he no-
tieed at the time that the coat of the ac-
cused was cut; and the coat exhibited be-
fore the jury on the trial showed that it had
been cut with a knife.

None of the commonwealth’s witnesses
saw the shooting.

The house in which the accused lived is
a two-story house, divided into four separate
flats, of three rooms each, two flats on the
first floor and two on the second floor, the
latter reached by separate stairway en-
trances going up from the front porch. The
two flats on the first floor were also en-
tered from the front porch, making four en-
trances into the building from the front
porch. The accused, with his wife and
daughter, lived in one of the first floor flats.
Other tenants lived in the other flat on the
first floor and in the rooms in the two flats
on the second floor.

One of the witnesses for the common-
Wealth, who lived in the flat on the first floor
adjacent to that occupied by the accused,
testified that, while in her room inside the
house, she heard the shot fired which killed
the deceased, and that immediately before
the shot she heard a woman's voice out on
the porch say, “I would not do that,” or
“Don't do that,” and that a short time be-
fore that she heard two men on the front
Perch quarreling, but she could not hear
What they said, except that she heard one of
them say: “See here! See here!’
The only evidence for the commonwealth
Which it can rely upon to support the verdict
is the testimony of three witnesses (Phillip
Carter, George Askew, and Fannie Smart),
all negroes, none of whom saw the shooting,
but who testified to the following circum-
S8tances:

Carter testified: That he lived in the

cused on the same street. That as he was
going home on the night-of the homicide—
not fixing the time of night except saying
that “it was pretty late’—and passed by the
house in which the accused lived, he saw
some men on the front porch of that house,
near the upstairs door, four or five in num-
ber, standing and talking and “fussing” ;
that he did not see the deceased or the ac-
cused among them, but heard the voice of
the aecused talking, and heard him say, “T
will kill any damn man about my liquor” ;
that witness didn’t hear any more; that he
was positive that no woman was_ there,
“nothing but men’; and that “after” wit-
ness got in his own house—‘‘as soon as
witness got in his own house—“the gun went
off.’ That witness went immediately to
where the decensed was lying and struck
matches to see who it was and saw that it
was George Miller, who lived in the same
house with witness. That he had not then
heard anything about the deceased having a
knife and was not examining the body to
see if the deceased had any weapon, but ob-
served that the body lay on its side, and “he
had both hands shut up,’ and “it was no
knife or nothing there’; and witness yee
peated several times the statement that I
saw he didn’t have nothing, didn’t have any
knife,” or words to that effect. That he bola
the people who ‘came to the door that it
was George who lived upstairs with us, and
they told him “not to put a hand on him.
That nobody went to the body but the wit-
ness, That witness stayed there but a short
time and then went up the street and told
the policeman “about it.”
pi Bessa Askew testified: That he lived in
the same house with the deceased, across the
hall from him. That he was asleep at the
time of the shot which killed the deceased,
but was waked and told that somebody was
shot. That he put on his shoes and ran out
and saw Phil, Carter as he was going up the
street to tell the policeman of the homicide.
That witness then went to the body and
some one said it was George Miller. That
witness struck a mateh and “held it to his
face,” and saw that it was George Miller,
“and then went back and was eee, se
(witness’) porch, and two men come, He &
and they pushed him (the body) over: Se
“when the crowd came there,” witness wane
back again,” and when he looked there it
was a knife lying about. this far from Ras
hand (indicating).” That when he eekes
before” witness “didn't see any knife ata
ape.”
sip Smart-testified that she lived in kn
house next door to that in which the ‘e-
cused Jived; that on the night of the ey
ing of the deceased she was out on her oi
perch and saw two men conte up on the —
porch of the house in which the accuser

third house from that occupied by the ac-

lived, and they were standing there when a
, )

L

~e

AY

GL OF
;
| we

te

sc

Bi absinthe an oo Lig on ae
is ia COURT MINUTE BOOK, 1813- 1818 --- SUSSEX COUNTY —

|
;
|
“SESE GRA eae sera ty

ay * Ye . x ~ ob aie 7 a 4 , “ e <
j f. ; 5 : : phiy ee Sg a <% . . ? . 4
, eas sila ea oa attest hat : . : : a = ON y. “ Wats till: aera Coa ack al
: { : Baap Tes, Te . - : ; « . % > : “

et ER

< Clodoae: aS iV Sy
“

ll ee soa

aT]


LL Jo? Sf

Lb oohe

A.

pe, th th: tO 4 Cpeerd
ie) eyfcafee?. eran seek fheced ane a: AAO pe |
fifo ated hinlene? thliheve- ged Ide

And & Pot a _ ‘evo . — és 3
2 Legh L vA pura. afe 72 9 45 Ah —s a

3 ‘ ZL, 5 Ltd ‘2

La Lecllto thei thefleract bulb & Lglhto AAco7w

uae f -


Au wiltle | ghet aus Grivek, afisizglolgg

-
LEZ

oy 1 ae aah

fe
i 4, a ee

(rad

Lele


SCT tae A

hig ra ltl; Y6/d

LhecLa . . Len reyes lero deaslon gD lots Catte2)

"Ge We had

; how Lh atencut oad

SH. Doe

a COPY TESTE: - a
" GARY M. WILLIAMS, CLERK

f fie eis ey
Ce co Ser ey Loo va

7 Be eéL

= OE 4; Vp Gite yy, SF bree tea AG?
sehaaagy £

Mhebb is ier) ona > MiwoelD [Feced,
Mig lve 4O/. Gvee ff »\ Ma a Lae Z.

Z

OSs ze zee 0 Cae CL, Eegspenys a Yes
Spythce2£? Vik / eace ee tecer:t7gu

a Pe stateside Yeah _@

Ge baka Aon Pore



ROBERTSON, William

mi

Rocky Mount, Vaey 1-25-1895-William Robertson, white, was
hanged here today for the murder of Jerre Barbour three
years ago. Robertson and Barbour left Wardsboro together
on the night of 1/2 5/1892. Barbour's body was found in
the road next morning. His pockets had been robbed of
$100 and the money was found on Robertson's person. The

murderer was 18-years-old when the crime was committed
and Barbour w as 68-pears-old,"

patch of 1/26/95"

Mly States that he was

BIRMINGHAM DAILY NEWS, Birmingham, Ala., 1-25-1895
—— Ty kN

a on

ed \T when crime was Com -

spo
“4

(bara

(WA Va’

Richmend Dis
iFiea

ROBERT, Slave, hanged at Petersburg, Virginia, pro. 6-20-1828,

According to Hillsboro RECORDER, Hillsboro, NC, May 28, 1828, Bob and Anthony were
sentenced to be hanged at Petersburg for murder of Mr, O'Maher which occurred at

his store in Petersburg on )-10-1828, According to the Report of the Additor to
the House of Delegates, dated Dec. 28, 1831, the owner of Slave Robert was reim-
pursed $500 for his execution in Petarsburg, reimbursement taking place on 6=2);-1828
As owner not reimbursed for Slave Anthony for either execution of transportation,

he probably was commuted or died prior to execution,

"Petersburg, Vae, May 9, 1828-SHOCKING-On the night of the 16th ult, two stout negro

men came to the Store of Mr. Richard 0. Maher, @#XB on Old Street, after the occupant had
gone to rest. They requested admission on some plausible pretext, and Mre Me,

knowing their voices, let them in without hesitation, But to his great surprise,

one of them commenced an immediate attack upon him, stabbing him in the head, neck

and breast, dreadfully mangling and bruising him, and ending by throwing him on the
floor, and placing a bed upon him, = While this was going on, it is supposed the

other fellow was employed in plundering the store of money, etc. Being alarmed, they
made off, The cries of Mr. M, were heard by a neighbor, who found him in the situa-

tion above described, Perfectly in his senses, he detailed all the circumstances,

and mentioned the names of the villains who had attacked him, Immediate pursuit
commenced «= one of the negroes was discovered in the course of the night, and chased

into the river, where he was drowned, The other was taken next morning, and has

made XXXUXXXXAMXRA¥XBRY ample confessions, Mr. Maher lingered until yesterday when

he expired to the great regret of the whole community - and his remains will this

evening be followed to the grave by many who knew him as an inoffensive citizen, SHIKETPXE
quietly pursting his business, who could scarcely have given just cause of enmity

+o any human being."

COURIER, Charleston, SC,May 15, 1828 (2:1.)


———

|

sa Me eke. a “. ae ir; , An thd shan, hes |

+. Ea -

ROBERTSON, John G., white, hanged Stafford C. He, Vaey on December 28, 1866,

—* Bah Rehictinas At Madan d 4 he apebtens
Mrawled Aegpile fetwe (!- (6. &. hoeaytesial 8 Trander of Comerccet
. 7 a sn A en

yee | ager oa Sp iT

i re Loft CH- fobirtesn ee AOL ten
ye Sc NTE. SEL: ig ladies

hein, afl? nell AX Lili clardig toy nbadeids flirted Co

wim rederectateng, Creadinng errs: oti Confleston Pe, Ko fad jb Pemarenreectte ie.


aqerey Geers Ss F
eee CT TTA EN wes

—_ _—_

364 SOUTHEASTERN REPORTER, Vol. 20. (Va.

“Third. The third error complained of 1s
that the county court overruled the motion
of the prisoner to exclude all evidence tend-
ing to show that he robbed the deceased:
the contention being that inasmuch as the in-
dictment was in the ordinary form, and did
not charge that it was done in the commis-
sion of robbery, etc., it was not competent
to prove the robbery in order to elevate the
offense to murder in the first degree. Thomp-
son’s Case, 20 Grat. 724, and several other
Virginia cases, show that whatever may be
the rule elsewhere, in this state, at least,
it is competent, under an indictment for mur-
der, simply to try and convict one of mur-
der in the commission of, or attempt to com-
mit, robbery, etc. The question is not an
open one here.

“Fourth. Nor do I find any error in the
refusal of the court to give instruction No.
1 asked for by the prisoner, and in giving
instructions 1, 2, and 3 asked for by the com-
monwealth. The vice of the instruction of-
fered by prisoner was ‘that, under the indict-
ment in this case, no evidence of robbery can
be considered for the purpose of elevating
the crime to murder in the first degree.’
Thompson’s Case, supra, fully sustains the
county court in rejecting this instruction,
Those given by the court, and excepted to,
were as follows: ‘(1) Murder is the unlawful
killing of another with malice, and in Vir-
ginia is designated as murder in the first
degree, and murder in the second degree.
(2) Every homicide, in Virginia, is presumed
to be murder in the second degree; and to
elevate the offense to murder in the first de-
gree devolves upon the commonwealth. and
to reduce murder in the second degree to
manslaughter devolves upon the prisoner.
(3) To constitute murder in the first degree,
the prisoner must have been incited to the
killing by malice, and the killing must have
been willful, deliberate, and premeditated
killing on the part of the prisoner; but if
the jury believe from the evidence, beyond a
reasonable doubt, that the prisoner killed the
deceased in the attempt or commission of
robbery by prisoner on deceased, then they
must find the prisoner guilty of murder in
the first degree.’ The first instruction gives
the general definition of murder; the sec-
ond accurately enunciates what the law pre-
sumes in every case of homicide, and what
burden of proof devolves on the common-
wealth, and what on the accused; the third
defines what constitutes murder in the first
degree generally, in the first instance, and
then adds that if the killing is done in the
attempt to commit, or in the commission of,
robbery, the killing is murder in the first de
gree; and that is what the statute prescribes.
If the killing is shown to have been done in
any of the specially enumerated or exception-
al cases, it is not necessary to offer proof to
establish the fact that a homicide was In-
tended. Jones’ Case, 1 Leigh, 598.

“Fourth. I do not think the alleged separa-

tion of the jury in this case a ground for a
new trial. In fact, there was, in legal con-
templation, no separation. And this brings
us to the consideration of the last error as-
signed, to wit:

“Fifth. That it was error in the county
court to refuse to set aside the verdict of
the jury, as contrary to the law and the evi-
dence. On this point, under our statute, the
evidence, not the facts proved, having been
certified, the case is to be considered as upon
a demurrer to the evidence. ‘Acts 1889-90,
p. 36. But it is not necessary to apply this
rule of law to sustain the action of the coun-
ty court in overruling the prisoner’s motion
for a new trial. The judgment was plainly
right. I do not intend to discuss the evi-
dence in detail. I have arisen from a care-
ful second reading of it, satisfied that it estab-
lishes the guilt of the prisoner beyond a rea.
sonable doubt. As was said in Finchim’s
Case, 83 Va. 689, 3 S. E. 343: ‘The record
discloses concurrent circumstances of time,
place, Means, motive, and subsequent con-
duct pointing to the prisoner as the perpe-
trator of the crime for which he stands in-
dicted, that fully warranted the jury, acting
with that utmost caution with which cir-
cumstantial evidence should always be act.
ed on, in arriving at their verdict of murder
in the first degree.’ It presents a case of
the dastardly assassination of an inoffensive,
harmless old man, while in a state of intoxi-
cation, for the purpose of robbery. I find no
error in the record, and a writ of error is
denied.” :

The judgment of the county court of Frank-
lin county, appealed from, and under review,
is without error, and the same is affirmed.
Affirmed.

—_ os

COMMONWEALTH v. CHARLOTTES-
VILLE PERPETUAL BLDG. &
LOAN CO.1

(Supreme Court of Appeals of Virginia. Nov.
8, 1894.)

DouBLeE TAxXaTION—WHAT CONSTITUTES—CAPITAL
AND SHARES OF STOCK—CONSTRUCTION
oF REVENUE Law.

1. Revenue Law 1890, § 8, subsec. 2, pro-
vides for the taxation of “capital including
monies, credits or other thing remaining in-
vested whether said investment was made orig-
inally in this state or country, and the value
of all capital loaned, used or employed in busi-
ness out of this state.” Section 8, subsec. 3, pro-
vides for taxation of “the value of all capital
of incorporated joint stock companies not other-
wise taxed.” Held, that the taxation of shares
of an incorporated company in the hands of the
stockholders does not prohibit the taxation of
the capital of the company, the latter not being
otherwise taxed.

2. Section 17 of the revenue law of 1890 rec-
ognizes the distinction, for the purpose of taxa-
tion, between the capital of a company and its
shares of stock, in that capital of banking as-
sociations is exempted from taxation, but shares
of stock are listed for taxation.

1 Reported by F, S, Kirkpatrick, Esq., of the
Lynchburg bar. -

er om


EW DUI OU IN 9

aa

iy 1 llia a8 9

 *

snl

\

h yore do ee Le “\uint ai a ag * Cn
Nanseca NOcKYy wo UNG * VA 1/25/1895.

302 SOUTHEASTERN REPORTER, Vol. 20. (Va.

As to the first point, it is enough to say
that it was within the discretion of the
court to allow the defendants to withdraw
their answers, and to demur; and, as there
was no unreasonable delay in moving for
leave to do so, we are of opinion that the ob-
jection is not well founded.

Then the question is, does the case stated
in the bill entitle the complainants to the
relief sought? We think not, and this is
so apart from any merely technical objec-
tions to the bill, for vagueness or otherwise.
A contract to purchase stock, induced by
fraudulent representations, is not void, but
only voidable, at the option of the purchaser.
If, as was said in Bosher v. Land Co., 89 Va,
459, 16 S. E. 360, the representations are
made by promoters or by a prospectus, the
innocent subscriber may rely upon them
without investigation. Ordinarily, however,
where the rights of creditors are concerned,
he must exercise reasonable care and vigi-
lance in discovering fraud; and in any case
he must, upon discovery of the fraud,
promptly repudiate the purchase. He has
no right to hold on to the stock in the hope
or expectation of realizing a profit there-
from, and, failing in this, to disaffirm the
contract. Hence, if, after discovering the
fraud, he demands or receives a dividend,
or continues to act as a stockholder, or does
any act inconsistent with an intention to dis-
attirm the contract, he will be held to have
waived the fraud. As was said by the
masters of the rolls in Ashley’s Case, L. R.
9 Eq. 263: “The leading principle in all these
cases is this: A man must not play fast and
loose. He must not say, ‘I will abide by the
company if successful, and I will leave the
company if it fails.” And therefore, when-
ever a misrepresentation is made of which
any one of the shareholders has notice, and
can take advantage to avoid his contract
with the company, it is his duty to deter-
mine at once whether he will depart from
the company, or whether he will remain a
member.” The same principle has been rec-
ognized in numerous Cases, English and
American. Indeed, it-is fundamental, and
rests upon a twofold reason, viz.: (1) Be
cause the subscriber’s remaining in the com-
pany may induce others, upon the credit of
his name, to become members; and (2) be-
cause it may likewise induce others to give
credit to the company, for the same reason.
Ogilvie v. Insurance Co., 22 How. 380; Up-
ton y. Tribilcock, 91 U. S. 45; Upton v. En-
glehart, 3 Dill. 496, Fed. Cas. No. 16,800;
1 Cook, Stock, Stockh. & Corp. Law (8d Ed.)
§§ 151, 160, 165, and cases cited.

Tried by this test, the decree in the pres-
ent case must be affirmed. The Dill admits
that, after the complainants discovered the
fraud by which they were induced to sub-
scribe for the shares in question, they “al-
lowed the matter to proceed”—or, in other
words, they waived the fraud, and elected
to remain in the company—upon being told,

when an explanation was demanded, that a
large dividend would soon be declared: and
although they afterwards unsuccessfully de-
manded a dividend, and although the condi-
tion of the company was shown in a less fa-
vorable light by each successive statement
that was subsequently made, one of which,
at least, was furnished not later than
March 9, 1891, yet it was not until some
time in the ensuing September, and after
the company had become “hopelessly insol-
vent,” that the bill was filed. In the mean-
time, rights of creditors had intervened, and
the application to rescind the contracts in
question was consequently too late. Bar-
nett vy. Barnett, 83 Va. 504, 510, 2 S. E. 733;
2 Pom. Eq. Jur. § 897. Decree affirmed.

FAUNTLEROY, J., absent.

ROBERTSON vy. COMMONWEALTH.1

(Supreme Court of Appeals of Virginia. Nov.
8, 1894.)

Homicipe — INCONSISTENCY IN INDICTMENT — In:
STRUCTIONS—DEGREE OF CRIME—AT-
TEMPTED ROBBERY.

1. An indictment for murder, which de
scribes the wound in one place as above the
nipple of the left breast, and subsequently as
below the nipple of the left breast, is not void
for repugnancy and inconsistency, a8 the lat-
ter recitation is surplusage, and covered by sec-
tion 3999, Code, which provides that indict-
ments shall not be void for the omission or
insertion of ““words.of mere form and surplus-

age.”

2. Section 3978, Code, does not require a
special grand jury to be selected from a list
of 48 men, prepared by the judge of the county
court, in August of each year, to serve for the
ensuing year.

3. On an indictment for murder simply, one
may be convicted of murder in the commission
of, or attempt to commit, robbery.

4. Murder is the unlawful killing of anoth-
er with malice.

5. Every homicide is presumed to be mur-
der in the second degree, and it is for the state
to show that it was murder in the first degree,
and for defendant to show that it was man-
slaughter.

6. One who kills another in the attempt
to commit, or commission of, robbery, is guilty
of murder in the first degree.

7. Where the evidence, and not the facts
proved, is certified in the record, the case on
appeal stands as upon a demurrer to evidence,
under Acts 1889-90, p. 36.

Error to circuit court, Franklin county; S.
G. Whittle, Judge.
William Robertson was convicted of mur-

der, and brings error. Affirmed.

Anderson & Hairston, for plaintiff in er-
ror. R. F. Scott, Atty. Gen., for the Con
monwealth.

FAUNTLEROY, J. William Robertson,
the plaintiff in error, was indicted at the
February term of the county court of Frank-
lin county of the murder of Jerry Barbour,

1 Reported by F. S, Kirkpatrick, Esq., of the
Lynchbtitg~bar,


Slave &K ROBIN.

Pittsylvania Co., Va., Court on Feb. 20, 1844,
Robin, the slave of Charles F, Adams was con-
victed and valued at $340. Thomas P. Jones,
Deputy “heriff, attested that he was hanged on

March 29, 1844,

Env. 1844; Box 7; Item 153: A uditor's Records,
A rehives of Virginia.

Aecardiny 70 Exe. ipurmel Gov. 3/1/44 this
Sst ttt! Was att UNortae.


Va.) ROBERTSON v. COMMONWEALTH. 863

2nd he was tried upon the said indictment at
the December term, 1892, of the said court,
and was found guilty by the jury of murder
in the first degree; and on the 19th day of
December, 1892, he was sentenced by the
said court to be hanged by the neck until
he is dead. To this judgment he petitioned
the circuit court of Franklin county for a
writ of error, upon the exhibition, as a part
of .his said petition, of a transcript of the
record of the said trial in the said county
court, and errors assigned. The writ of er-
ror prayed for was denied by the judge of
the circuit court of Franklin county, where-
upon a writ of error was allowed by one of
the judges of this court. In refusing the
petition for a writ of error, the judge of the
circuit court of Franklin county (Judge S. G.
WHITTLE) delivered an elaborate and care-
fully considered opinion, upon the record
and errors assigned and points raised and

@iseussed in the petition and argument by |
| upon the body of the deceased had been al-

counsel, in which said opinion this court
fully concurs in all points, and adopts the
same as the opinion of this court for affirm-
ing the judgment of the county court afore-
said, and the denial of the writ of error by
the said circuit court of Franklin county.
The opinion of WHITTLE, J., refusing the
appeal, was as follows:
‘o“T have carefully considered the record in
‘this case, and the points raised and discussed
y counsel in the petition for a writ of er-
for,.and will comment on them very briefly,
ji the order in which they are presented.
~ “First. It is contended that the demurrer
to the indictment should have been sus-
tained because of a repugnancy and incon.

Bistency of averment in the description of .
| ensuing. A careful examination of the sec-

the wound which caused the death of the
deceased, Jerry Barbour,—the charge being,
in one part of the indictment, that the
wound was above the nipple of the left
feast, and, in another part, that it was
below the nipple of the left breast; and Dias

v. State, 39 Am. Dec. 448, is relied on to sus-.

tain this contention. The general rule is
conceded that pleading must not be in.
‘Belisible, inconsistent with itself, or repug-
Rant. But there is this exception: that if
‘the allegation which creates the repugnancy
‘Gs'merely superfluous or redundant, so that
Tt may be rejected without altering the gen-
eral sense and effect, it should be rejected,
the maxim being ‘Utile per inutile non vitia-
fur’; and this principle has been incorporat-
ed in our statute law. Code, § 3999, in des-
ignating what defects in indictments shall
Rot vitiate them, concludes: ‘Or for the omis-
Sion or insertion of any other words of mere
form and surplusage.’ In Sledd’s Case, 19
Grat. 819, Judge Joynes, in delivering the
‘ Opinion of the court, in cammenting on this

Btatute, says: ‘The provisions of this section

re designed to get rid of .cumbrous .and

eless technicalities, and ought to receive
iberal construction.’ In pleading, sur-
bsage is the allegation of unnecessary mat-

ter. The foundation of the rule requiring
the place of the wound to be alleged in an
indictment was to enable the court to see
that it was of such a nature that death
might have ensued from it. In this case the
first part of the count charges the miunner
and location of the wound. It was inflicted
with a deadly weapon in a vital part of the
body, ‘just above the nipple of the left
breast,’ and it was unnecessary to repeat in
the same count the location of the wound.
The averment that the shot gave the de
ceased a mortal wound, of which he then

_ and there died, ete., was sufficient; and the

words, ‘Just below the nipple of the left
breast,’ were unnecessary, and might have
been omitted without impairing the general
sense and effect of'the charge, and should
therefore, under the statute, be rejected as
surplusage. The propriety of this view is
the more apparent, because, previous to said
words, only one shot, penetration, or wound

leged, and the location of that particularly
described. The repugnant words could only
refer to that, and evidently meant the same
wound, and, whichever be taken, the wound
was inflicted in a vital part of the body.
See Lazier’s Case, 10 Grat. 708, and also
State v. Freeman, 74 Am. Dec. 319.

“Second. The second error assigned was to
the rejection by the county court of the plea
of the prisoner averring that the members
of the special grand jury which found the
indictment against him were not taken from
the list of forty-eight men required by stat-
ute to be selected by the judge of the county
court in August of each year to serve as
grand jurors for the twelve months thence

tions in regard to regular and special grand
juries will show that there was no error in
the ruling of the county court in rejecting
said plea. A regular grand jury is made up
by the clerk from the forty-eight men select-
ed as aforesaid. But a special grand jury,
under section 3978, is to be summoned from
a list furnished by the judge,—evidently,
from a list made at the time the special
grand jury is ordered. There is not only
nothing in the statute to indicate that the
special grand jury is to be taken from the
forty-eight names; but, if so construed, it
would thwart the manifest object of the stat-
ute in providing for a special grand jury,
which is, I take it, to empower the court
or judge, when the exigencies of the busi-
ness of the court require it, to order a spe
cial grand jury, and obviate the expense and
delay of summoning a regular grand jury.
But, be the reason of the law what it may,
there is nothing in section 3978 which re
quires the special grand jury to be selected
from the forty-eight named, but just the
contrary. Lyles’ Case, 88 Va. 396, 13 S. E.
802, decides that an indictment for murder
may be found by a special grand jury as
well as by a regular grand jury.

PuO) OWIGILLIS CU

a

myit
“s

A

&


PROSSER, Gabriel, black, hanged at Richmond, Virginia, 10-7

-1800.

Pieee wehie, wiat ae FP ai

Slavery in the Western Hemisphere / 237

LEADERS OF SLAVE REVOLTS IN THE USS.

GABRIEL PROSSER
17-75?—1800
Slave insurrectionist

Not much is known of the early back-
ground of Gabriel Prosser beyond the
fact that he was born around 1775, and
was a coachman belonging to Thomas
Prosser of Henrico County, Virginia.

The revolt which Prosser organized—
the first of at least three major slave
uprisings in the first half of the 19th
century—was remarkable not only for the
skill of its organization, but also for the
large numbers of people who were to
have taken part in it. The environs of
Richmond, Virginia—chosen as the site
of the rebellion—had some 32,000 slaves,
but only 8,000 whites, including a num-
ber of Frenchmen and Quakers, groups
which Prosser felt would be sympathetic
to his cause.

Prosser planned the revolt for the end
of August, reasoning that there would be
plenty to eat at the harvest, and that his
followers would thus be spared any
shortage of important supplies. He in-
tended to kill all slaveowners, but to
spare the French, the Quakers, elderly
women, and children. Eventually, he
hoped that the remaining 300,000 slaves
in Virginia would follow his lead, and
take over the entire state.

The plans laid, it was decided to meet
at the Old Brook Swamp outside of
Richmond on the last night of August,
and to martial forces there for the attack
on the city. A severe rainstorm, however,
made it impossible-for many of the slaves
to assemble at the appointed rendezvous,
necessitating a postponement of plans.
Before the slaves could reassemble, the
plot was betrayed by a pair of slaves
who did not wish their, master killed.

Panic quickly swept) Richmond, and
martial law was declared. Most slaves
implicated in the conspiracy were
rounded up and hanged, at least until it
became apparent that this procedure
would soon decimate the area’s slave
population. Less severe sentences were
then meted out by the courts.

Prosser himself was captured in the
hold of the schooner Mary when it
docked at Norfolk after a trip from Rich-
mond. Brought back in chains, he was

interrogated by the governor, but refused
to divulge any information on the nature
of his plans, or on the identities of his

compatriots. Prosser was
October 7, 1800.

hanged on

DENMARK VESEY
1767—1822
Siave insurrectionist

The second serious uprising of the 18th
century was led by Denmark Vesey, a
slave who for 20 years had sailed with
his master, Captain Vesey, to the Virgin
Islands and Haiti, the latter an independ-
ent island ruled by Negroes.

Born in 1767, Vesey was sold by his
master at an early age, but later re-
purchased because he was an epileptic.
Vesey enjoyed a considerable degree of
mobility in his native Charleston, South
Carolina, and eventually secured his own
freedom by paying his master $600 of
a $1500 sum won in a lottery. He later
became a Methodist minister, using his
church as a base from which to recruit
supporters for his plan _ to take over
Charleston—a plan set to go into opera-
tion on the second Sunday in July of
1822,

As in the case of Prosser, the Vesey
plan was betrayed by a slave who alerted
the white authorities of the city. Hun-
dreds of Negroes were quickly rounded
up, and Vesey himself was taken prisoner
after a two-day search.

Vesey, who was literate, was ex-
tremely adept at cross-examining wit-
nesses at his trial, but was unable to
deny that his intended purpose was the
overthrow of the city. Sentenced to
death, he was hanged with his com-
patriots on July 2, 1822.

NAT TURNER
1800—1831
Slave insurrectionist

The Nat Turner Revolt is the best-known
of the three major slave uprisings which
occurred in the South in the early
decades of the 19th century.

Born in 1800, the year of the Prosser
revolt, Turner was strongly drawn by a

kind of visionary mysticism through
which he heard “voices” and believed in
a special destiny. An avid reader of the
Bible, he also prayed and fasted often,
and ultimately conceived a plan to con-
quer Southampton County in Virginia.

larry Ae Ploskis Bellwether Publishing Company, Inces: 1971.

d. by I

im)
bal)

RICA, Volume ITI,

de

BLACK AME

Fr

ENCE LIBRARY O!

R

Py
& a

RE

es glace 5 aaa


, PROSSER, Gabriel, slave rebe

Page

lave would make
history in Henrico

By Douglas A. Thorpe
Special to The County: Line
Late in 1799, just north of today’s Wilkinson Road

car Interstate 95, three slaves, while stealing a sheep,
were surprised by an experienced overseer named
Absalom Johnson. To Johnson's astonishment, the largest
of the slaves did not back down or run away. In the
ensuing struggle, the slave bit off Johnson's ear.

To Johnson's further shock, the Henrico County Court
gave the slave only a month’s term in jail, with the slave's
master being required to post a year’s bond for good
behavior.

First of five parts

The summer after the incident of “Absalom’s Ear,”
that slave would shock the entire country. His name was
Gabriel.

Gabriel, in the months preceding Aug. 30, 1800,
organized and-eventually led the first massive plot against
slavery in the United States. His was also the most
extensive, and well-planned, plot ever uncovered.

The center of the plot, and the point from which the
attack was to originate, was Henrico County. It is likely
that Gabriel — and his two brothers and co-conspirators,
Martin and Solomon — were born and raised here. The
very heart of the conspiracy was a plantation, Brookfield,
located just north and east of the bridge over what then
was called The Brook.

In 1800, Brookfield was a plantation of about 2,000

acres. It was split into two parts. The first section, on ,

which the main house stood, is bordered today roughly
by Upham Brook to the south (called The Brook in
Gabriel's day), Brook Road to the east and I-95 to the
west. It extended just beyond Wilkinson Road on the
north. A second section of the plantation was to the
northwest and included land on which St. Joseph’s Villa
and Stonewall Manor today stand.

Driving east from Brook Road on Brookside
Boulevard (a block south of Wilkinson Road), a modern
observer might note an equally spaced line of trees, about
100 years old. After about five blocks, they end. At this
point was the likely mansion of Brookfield. From old
insurance records, it was a substantial two-story frame
house, a five-bay structure with flanking one-story wings.

The original house either burned or was replaced in
the 1850s. The new mansion erected on the spot was
more elegant. For many years, it was the seat of a highly
respected Henrico family, the Dickenses. It burned to
the ground in either 1910 or 1930.

The only artifiacts that remain today of Brookfield
are two identical bronze lions that sit majestically today
on the front lawn of a frame house on Chamberlayne
Avenue just north of Azalea Avenue. The lions at one
time guarded the portico of the Brookfield mansion, but
I doubt if they were on duty in 1800.

It is ironic that Gabriel’s Plot (also called Gabriel's
Insurrection) should hatch in Henrico County, for the
county, and the surrounding area. was noted for its
relatively lax attitude toward slavery. I hestitate to use
the term “liberal” but, in a historical context, the term
applies.

Jiion =< Virginia.
THE COUNTY LINE

May 10, 1984

THE COUNTY LINE PHOTOS BY MARGARET L. BROADOUS

Line of trees along Brookside Boulevard led to the mansion of Brookfield plantation, which was at the heart of Gabriel’s

conspiracy.

A detailed analysis of the conditions that prevailed
in Henrico and Virginia from 1780 to 1800 and the
external factors involved are beyond. the scope of this
article. Suffice it to say that not only the location, but
the time period as well, was critical to the rebellion.

Just who was Gabriel? Nothing is known of him before
the incident of “Absalom’s Ear” beyond the facts of his
being born in 1776 and his being married. He was a
giant of man for his day, 63” and well built. He said
little and was very religious. Some sources say that he
wore his hair in a long mane like his biblical hero, Samson.
Others indicate he wore his hair in dreadlocks, but it
is much more likely that his hair was closely cropped.
His skin was very dark and one source, not verified,
said his mother was born in Africa.

Gabriel appears to have been a foreman, with skills
in both carpentry and blacksmithing. It is likely that he
could read and he most certainly had hidden organi-
zational, managerial and military talents that both James
Monroe and Thomas Jefferson admired.

Gabriel was owned by Thomas Henry Prosser, a young

man who had inherited his property from his father a
few years before. Most sources indicate that he was
barbaric toward his slves, but he seemed to hold Gabriel
not only in high esteem but in high trust as well.
Prosser’s cruelty was not the rule of thumb for the
day. Yet Gabriel's Plot not only spread throughout
Henrico County and the area, but throughout Virginia.
Many of the slaves involved were treated relatively well.
Just what happened before and after that fateful night
of August 30, 1800? There is not a resident of Henrico
County who has not walked on the same ground as
these conspirators did in the spring and summer of 1800.
Next week, we will meet Gabriel's Plot.

Thorpe, 37, a native Henricoan, is completing a
historical novel based upon Gabriel's life. He also is

finishing requirements for a master’s degree in mass

communications at Virginia Commonwealth University.
He lives with his wife and two young daughters at 1522-
J Split Oak Lane.

Gates of St. Joseph’s Villa now stand on land that was the second section of the Brookfield plantation,

eres i

weer np - --

Death Row Inmate Denied Reprieve .

w Virginia death row inmate David Mark.
Pruett lost another round in the appeal pro-

cess yesterday when the U.S. ‘Supreme :

Court declined to consider his case.

The justices, without comment, let stand -

his conviction and death sentence for killing”
a Virginia Beach woman in 1985.

Pruett was to have been put to death in:

the state’s electric chair on Thursday, but

Gov. L. Douglas Wilder changed the execu-.
tion date to Dec. 16 last week so he could -

consider any clemency requests.

ok

Pruett, 44, already has been’ tiened down oe

by the 4th U.S. Circuit Court of Appeals. A.

oe panel sgn his conviction and a

: x
Re

i - ma ay f

sentence i in May despite arguments that his. .
trial lawyer was ineffective, that the pros-. |

ecutor engaged i in ‘misconduct and that the
jury’ s instructions were fe adequate.

aa. usa a

THE WASHINGTON Post

“hak

NovEMBER 16, 1993,

9

Ee" TUESDAY,

- Sper
Refit
Paterrae

QviRGinia ~

RICHMOND — David ‘Pruett
will ie a ecuted oaey net

aA =

Gov. Wilder refused to grant: the
convicted. murderer clemency.
_ Pruett was convicted of Taping and -
_ Slashing the throat of Wilm Harvey,
| his best friend’s wife. He contended
_ jurors didn’t know about his severe
emotional problems. - .

AAA eRe DO 8 ea eo

USA TODAY TUESDAY, DECEMBER 14, 1993 -

Virginia Man Executed
For 1985 Rape: Miiider

Jarratt, Va, ons - David Mark Pruett

was executed in the electric chair
yesterday for Taping and murder-

ing his best friend's wife ‘nearly a

nine years ago.

é the Greensville Correctional Cen-—

Pruett, 44, ‘was ‘put to death at

ter. He had confessed to killing |

Wilma Harvey, 35, in her Virginia

pee home on Feb. i, 1985, while ...

hee ‘husbaid, Richard,

restaurant he ‘managed.

was away
on business. Richard Harvey had
given Pruett a job asa cook at the

Se eae

_ FRIDAY, DECEMBER 17, 1993

_ NATIONAL REPORT


“Times- Di patch

Vyichimond,

Lk

[CGI

(dnwend Times Viger

———

Cr day P21 6

Wilder wont stop execution

US. Supreme Court is Pruett’s last hope |

— BY FRANK GREEN»
TIMES-DISPATCH STAFF WRITER

DY.

DC Gov. L. Douglas Wilder said yes-
terday he would not interfere with
‘Thursday’s ‘scheduled execution of
David Mark Pruett for the 1985 rape
aid stabbing death of his best friend’s
wife. _

40, Wilder, who, stayed Pruett’s Nov.

Ry

¢

could study Pruett’s clemency peti-
tion, said nothing had been brought
to his attention since then to warrant
his intervention.

‘The decision leaves the U.S. Su-

breme Court as Pruett’s last hope for -

another stay. He is being held in a

Special cell near the electric chair ats:

the Greensville Correctional ‘Centers

ih Jarratt" that petition, a request for a stay of .

His execution at 11 p.m. Thursday, '- execution was filed with the Su-

would be a record fifth execution for
1993, the largest number in Virginia
since the U.S, Supreme Court al-
lowed the reimposition of the death
penalty in 1976. |
‘Also, it would move Virginia up to
‘third in the country for the most
executions since 1976, said the Na-

tional Coalition to Abolish the Death
i Penalty. Virginia had been tied for

18 execution date for a month so he ' third at 21, with. Louisiana. Texas is

first with 70 and Florida second with

Donald R. Lee, one of Pruett’s law-
'yers with the Virginia Capital Repre-
sentation Resource Center, said that

~ last Friday a petition was filed with

_ the high court asking it to reconsider

“an earlier appeal in light of other
‘ Supreme Court rulings... ;

Lee said that in connection with |

preme Court yesterday. In the mean-
time, Lee said Pruett had been told of
Wier decision and,’ “he’s’ doing
OK es

Lee, in his petition to Wilder, said:

that “David did commit murder, but
he is not a cold, calculating killer. He
is a severely psychologically dis-
turbed man who struggles to this day
to understand his actions.”

Pruett confessed to the Feb. 12,
1985, rape and slaying of Wilma Har-
vey in her Virginia Beach home while
her husband, his long-time friend,
Richard, was away on business.

In a petition filed with the gover-
nor, Lee argued that Pruett’s death
sentence should be commuted to life
in prison. Because of past convic-
tions, Pruett, 44, would not be eligi-
ble for parole.

Lee said jurors who sentenced
Pruett’to die never heard about his
severe emotional and psychological
problems.

a meet re CO oe

eel


TUESDAY, DECEMBER 14, 1993 BS

THE WASHINGTON POST . . |

é
~ AROUND THE REGIC

Wilder Won’t Halt Execution
In 1986 Virginia Beach Case

Virginia Gov. L. Douglas Wilder refused yester-
day to halt the execution of David M. Pruett, con-
victed of raping and killing his best friend’s wife.
Wilder said he had completed a review of the case
and found no evidence to warrant clemency.
Pruett is scheduled to die in the electric chair at
11 p.m. Thursday.
Asked by a reporter why he had rejected clem-
ency, Wilder pulled out a photograph of the victim,
Wilma Harvey, of Virginia Beach, showing her
throat slashed, and said, “That’s why.”
In a petition filed with the governor, Pruett’s at-
torney, Donald Lee, argued that Pruett’s death sen-
tence should be commuted to life in prison. Because
of past convictions, Pruett, 44, would not be eligible |
for parole.

Lee said jurors who sentenced Pruett to die nev-
er heard about his severe emotional and psycholog-
ical problems.

Pruett’s execution originally was set for Nov. 18
but was delayed so Wilder could review the case.

Pruett has exhausted his court appeals, and Lee
said there are no plans to return to court for last-

- minute motions. |

Pruett was convicted in 1986 of raping and stab-

bing Harvey in her home while her husband was
“away on business. Harvey’s nude body was found on
her bed with her hands tied behind her back.


--- we ee awwewe wwwase

Death Sentence Upheld

m The 4th U.S. Circuit Court of
Appeals in Richmond yesterday
upheld the conviction and death
sentence given to David Mark
Pruett for the 1985 rape and
murder of a Virginia Beach wo-
man.

- The appeals court . rejected
Pruett’s arguments that his trial

|. lawyer was ineffective, that the

prosecutor engaged in miscon-
duct and that jury instructions
were inadequate.

“Pruett had'a fair trialin every -

sense of the words,” the three-
judge panel said. .
Pruett, 43; was convicted of

murdering Wilma ’ Harvey, a

: friend who let him into her home
while her husband was out of
town. Pruett admitted that he

threatened Harvey with a knife,

raped her and stabbed her to

death. He also stole money from
- her home.

Pruett likely will ask for a re-
hearing by the appeals court be-
fore going to the U.S. Supreme
Court, said his attorney, Russell
Frank Canan. If those appeals
fail, an execution date probably
will be set.

THURSDAY, May 27, 1993 (oh

THE WASHINGTON Post


Virginia Executes Man Who K tilled Wife of F; riend

JARRATT, Va., Dec. 17 (AP) — A
man who confessed to raping and kill-
ing his. best friend’s wife nearly nine
years ago was executed in Virginia’s
electric chair on Thursday.

The man, David Mark Pruett, 44,
was pronounced dead at 11:11 P.M. at
the Greensville Correctional Center,
Said Wayne Brown, the prison’s opera-
‘tions officer. The execution took place
less than six hours after the United
States Supreme Court, without com-
; ment, unanimously rejected Mr.
Pruett’s final appeal.

David Bass, an operations manager
for the Virginia Department of Correc-

tions, said Mr. Pruett’s wife visited
him on Thursday. Mr. Bass said the

‘two had been married recently but was

unsure of the date.

Mr. Pruett was convicted in 1986 ot
raping and stabbing Wilma Harvey, 35,
in her Virginia Beach home on Feb. 12,
1985, while her husband, Richard, was
away on business. Mrs. Harvey’s body
was found on her bed with her hands
tied behind her back.

Mr. Harvey had given Mr. Pruett a
job as a cook at the restaurant he
managed.

When he confessed

to killing Mrs.
Harvey,

Mr. Pruett told investigators

that he had also killed Deborah McIn-
nis, a co-worker at a Kentucky: Fried
Chicken restaurant in Virginia Beach, .
in 1975.

He was convicted. of first-degree
murder and robbery in that case four |
months after receiving the death sen-
tence for killing Mrs. Harvey.

In a petition filed with Gov. L. Doug-
las Wilder, one of Mr. Pruett’s lawyers,
Donald Lee, argued that the death sen-
tence should be commuted to life in
prison. He said the jurors who sen-
tenced Mr. Pruett to be executed never
heard about his severe emotional and
psychological problems.

MYTI mes, Dec (& (993

oe we ww aee

Associated Press

JARRATT, Va. — Confessed killer
David Mark Pruett died in the elec-
tric chair last night for raping and

best friend’s wife
nearly nine years ago.
, Was ‘Ghevegeia, dead
€ss than six hours
after the U.S. Supreme Court, with-

unanimously rejected.

murdering his

Pruett, 44
at 11:1] p.m., |

out Comment,
his final appeal.

Wilma Harvey’s nude body with
multiple stab wounds was found on
her bed with her hands tied behind

her back, ~

#2-|7-92
Rapist, murderer
executed in Virginia

sy ebtan

Cy “he

Richar d Harvey had given Prot

onoppHig CCHLel Ub Vibpia DeacE
when she heard a knock on the
front door.

It was David Pruett, a pudgy,
dark-haired man in his mid-20s. She
recognized him as the manager of |
another Kentucky Fried Chicken.
He told her he’d been in an acci-
dent, hurt his leg and needed to call
his dad.

~ When Mclnnis turned back to
the sink to finish up a few dishes,
Pruett reached under his coat and
pulled out a long butcher knife with
a metal handle.

“J need all the money,” he said.

McInnis was scared, Pruett told
police in a confession nearly 10
years later. But she got him the
money bag from a locker. There
were stacks of bills bound with rub-
ber bands, about $1,200 in receipts
from the night’s business.

Then Pruett ordered McInnis to
take off her red :
and white can-
dy-striped uni-
form. She neatly
folded her
clothes and
placed them on
a chair, a detail
police detectives
would remem-
ber clearly 10
years later.

“She asked
why,” Pruett
told police. “I
said, ‘Look, I got
nv intention of

but,’ I said, ‘it’s
just going: to
take you a lot.
longer to get
where you're go- : ;

ing to go with no clothes on.’”

Then, reeling from six martinis,
Pruett panicked, he told police.

- He tied up McInnis and gagged
her. When she passed out on the
floor, he dragged her over to the
sink and tried to push her head un-
der the water.

“I couldn’t lift her so 1 dropped
her back down on the floor and her
head busted,” Pruett said. “And
that’s when I started stabbing her
., .in the nose and in the face and
ah, in the throat. . ... And I picked
up her head again and went,
‘Bamm,’ and bashed it again. That
sounds terrible.”

An autopsy report would de-
scribe McInnis as 5-feet-5, 115

unds with two long braids of
rown hair, Suture marks around
the neck show where surgeons had
tried in vain to save her life.

There was a blunt head injury,
extensive contusions of the right
temporal and frontal lobes and a
fractured skull. McInnis had nine
stab wounds to her left jaw and
neck.

Her husband, Larry, found her.
When he hadn’t heard from her that
night, he called the restaurant and
got no answer. Then he drove out
looking for her. He heard her muf-
fled cries outside and found her
bleeding on the floor.

* Pruett had already left, taking
time only to vomit on his way back

-ato his blue Datsun parked a block
“awav As he drove along Interstate

Eighteen years after Debra McInnis’ death, pictures

64, he threw the knife out of the car.
He carried with him a secret he
would keep for 10 long years.

Debbie McInnis, director of mu-
sic at Grassfield Baptist Church, lin-
gered for three days at Norfolk Gen-
eral Hospital. She died on May 26 at
7:45 p.m.

the late 70s and early
80s, Pauline and Earl Clark strug-
gled to put their lives back together,
gue y losing hope that their
ughter’s killer would ever be
found.

In the early years, police focused
on their primary suspect, Debbie’s
husband, Larry McInnis. He ini i
cooperated, but as police continu
to accuse him, he hired legal help

_ and told them to
«| leave him alone,
: Debbie’s parents
said.

Meanwhile,
David Mark
Pruett — the son
of Uriah John
Pruett and Mar-
ian Jackson
Pruett of Norfolk
— was keeping
busy, drinking,
smoking dope
and gambling ev-
ery chance he
got.

Gambling
was a habit he
had acquired at
the age of 8, he

: told one proba-
See tion officer.

. =) Pruett was
the oldest of three children in a
Baptist family. His two younger
brothers were both deaf and men-
tally disabled. His father was a re-
tired customs inspector. His moth-
er, a Hampton native, was a full-
time homemaker whom Pruett
“loved and respected.”

After Pruett was arrested in
1985, he would tell police, “It’s fun-
ny. It doesn’t sound funny, but I
have two younger brothers and they
both are handicapped. Is that what
you want to hear? And so I was the
only one who could become some-
thing. Turns out I’m worse than
they are.”

Because of the special needs of
his brothers — one was institution-
alized — the family was financially
strapped.

Pruett graduated from Maury
High School in 1967, 336th of a class
of 435. He had an IQ of 108 anda
grade-point average of 1.42. Teach-
ers said he “did not work up to
potential.”

Pruett left home, and at 19, on
Nov. 23, 1968, married 23-year-old
Sara Elizabeth Linquist. A year lat-
er, he was drafted and sent to Viet-
nam, where he worked as a cook
and learned to like marijuana and
cocaine.

When he got back, he took a job
with Kentucky Fried Chicken in
Norfolk. While working there, he
met Debbie McInnis, who managéd
a store in Virginia Beach. He left ©
his job in April of 1975, one month

before he killed Debbie.

He was still married to Sara
when he committed his first mur-
der. That “happy” marriage kept
him from raping McInnis, he later
told police.

At the time he killed McInnis, he
had a 2-year-old daughter. A son
was born in 1975.

One year after killing McInnis,
Pruett — by now a compulsive gam-
bler — filed for bankruptcy, citing
extensive debts from poker.

In April of 1980, Pruett was con-
victed of embezzling $6,000 from
Family Dollar Store in Portsmouth
and received a five-year suspended
sentence. ;

Two months later, he was arrest-
ed in Norfolk for attempted robbery,
abduction and assault.

While awaiting trial, Pruett got a
job at Piccadi eteria at Lynn-
haven Mall. His boss was Richard
Harvey, the husband of his next vic-
tim. Supervisors called him an “ex-
cellent employee” in the two
months he worked there before be-
ing convicted and going to prison.

Pruett served two years, and in
December 1982, while on parole,
moved back into his parents’ house
on Corbin Street.

Richard Harvey rehired Pruett
two months later. He worked as a
back-up cook for $185 a week.

Pruett considered Harvey his
best friend, partly because he gave
him a job even though he was in
trouble. Pruett later told police he
never understood how he could
rape and kill his best friend’s wife.

The next November, Sara di- :
vorced him. About a year later,
Pruett was fired from the cafeteria
for missing too much work. He was
picked up twice for drunken driving
and ordered into alcoholism coun-
seling by a judge.

A probation officer described
him as “cooperative” during the
time leading to the second murder.

Pruett “hoodwinked” the proba-
tion officer, the officer said. He “dis-
played no personality or behavior
traits which would indicate he was
capable of the crimes” he was about
to commit.

On the evening of Feb. 13, 36-

enc Wilma Harvey was at

ome, rushing to get to choir prac-
tice on time. She stood in the den of
her new home on Bow Creek Boule-
vard by the Bow Creek Golf Course
in Virginia Beach.

She was ironing choir stoles, lay-
ing them neatly on the pool table
near the red-brick fireplace.

Her husband, Richard, was out
of town on business. Wilma taught
music to ninth-graders at Booker T.
Washington High and was a mem-
ber of the bell choir at First Baptist
Church of Norfolk.

Friends always mentioned her
smile.

At about 5 p.m., Pruett pulled his
lime-green Mercury Lynx in front of
the Harvey house. He’d been there
before, once staying over with Rich-
ard after the Super Bowl when the
ground iced up, and once when he
watched the house while the couple
vacationed.

That evening, the night before
Valentine’s Day, Pruett visited with
Wilma while she ironed. A paper
boy stopped by to collect, and
Pruett noticed cash in a metal cash
box when Wilma paid the boy.

When she wrapped mf the iron
cord, telling him she had to get
ready to go to church, he asked to
use the bathroom. She went up-
stairs to change.

“J was in the bathroom, I said,
"Yeah, well, go do it.’ And I wasn’t
going up to kill her. I wanted some
sex,” Pruett later told police. “I've
had a very bad sexual problem. I go
around in cars playing with myself
looking at women. It’s sick, isn’t it?
Yeah, it’s sick.”

Pruett went upstairs, surprising
Wilma in her ba m. He told her
to take off her clothes, assuring her
he wasn’t going to hurt her.

“] went up and had sex with her
and I told her, I said, ‘I know you
got money downstairs, so I’m not
going to hurt you,’ and then I, I, I
tied her up and (gagged) her,”
Pruett said.

“She said ‘I want to keep my
glasses on so I can see,’ ” Pruett
said. “I helped her put her glasses
on... ’cause they were about to fall
off, so I put them back on.”

When Wilma tried to get away,
Pruett started stabbing her with a
brown-handled knife he’d brought
with him.

“] was stabbing her and looking
at the stab wounds. I wasn’t even
looking at her face,” Pruett said. “I
think I cut her
whole throat =
open... when I
stabbed her I
don’t know
where in the
body but she
was kicking and
then I cut her
whole throat
open. I think the
knife went all
the wa’
through.”

Pruett is not
clear about ex-
actly what hap-

ed next.

He remem-
himself as he washed off the knife
in the free-standing bathroom sink
and taking cash from the metal box
Wilma used to pay the paper boy.

Evidence showed that Pruett
may have taken a pair of gray sweat
shorts and tried to mop up the enor-
mous amount of blood that spilled
from a seven-inch wound in the

neck.

Wilma’s body was streaked with
what an autopsy examiner called a
mixture of water and blood, as if
someone had tried to clean up the
body. Drops of blood were found
across the blue-gray carpeting be-
tween the bed and the bathroom
and on the floor of the bathroom.

Pruett made some key mistakes
— on purpose, he later told police.
His distinctive car was spotted out-
side. He left a fingerprint inside the
lens of Wilma’s square brown plas-

from her youth stir memories for her family. Mcinnis was stabbed nine times by Pruett.

tic acy a when he perched them
on face.

er

He left a fingerprint on the head-
board of her bed.

“This last thing wasn’t planned,”
he told police. “I guess I did this
last thing, I know, I know Id get
caught. Because if I’'d wanted to
plan this thing out just like I did
McInnis and all, I would never got
caught.”

“When you say you left a lot of
clues, did you do that intentional-
ly?” the detective asked.

“Yes, I think I did,” Pruett said.

On Feb. 14, 1985, police asked
Pruett to come to police headquar-
ters to answer a few questions
-_ his whereabouts the night be-
ore.

Pruett sat hunched over, his
arms crossed on the wooden table
inside the small interrogation room.
He feigned grief and sympathy for
his friend, Richard Harvey.

He asked police how Richard
was doing and told them he planned
to visit him after the questioning
was over.

Pruett acted hurt when police in-
vestigator John Vanderheiden sug-
gested he may have had something
to do with Wilma’s death, reminding
them he was there to help them find
the killer.

Vanderheiden laid the trap.

“We've got your fingerprints in a
place where they shouldn’t be,”
Vanderheiden lied. “We got your fin-
gerprints on her.
She was nude.”

Moments lat-
er, Pruett blurt-
ed out that he
had killed Wilma
Harvey, the wife
of his best
friend.

Vanderheiden:
Tl tell you this,
if you did do it, I
don’t think you
went there to do
it. I think some-
thing happened.

Pruett: Yeah,
you're right, I
did it.

Vanderheiden: Huh?

Pruett: You're right. I did it.

Vanderheiden: You didn’t go
there to do it, did you?

Pruett: No, I killed her.

Vanderheiden turned to write
out Pruett’s confession.

: All right. Will you
tell me what I’m to write?

Pruett: I'll tell the other person I
killed ,too.

Vanderheiden: All right.

Pruett: It’s been on my chest for
a long time . . . 1975. Debbie McIn-
nis. I know you all remember it.

During the next few hours,
Pruett nagged detectives to make
sure he would have pinochle cards
in prison. He also spoke of his rela-
tionship with the Harveys.

“Why I picked my best friend’s
wife, I don’t know. God. That’s,

Clark from her Wakefield, Va.,
home. “Our lives will never be the -
same, especially Wilma’s mother.” .

Clark wrote back and shared
some of her feelings about the trial
and the slayings.

In response, Anna Mae wrote, “I ,
do feel that it will be a great com-
fort to Margaret for she needs
someone who has gone through
what she is going through and you
have. I feel like the two of you will
become good friends.”

She was right. Margaret wrote
Pauline the next month, mentioning
her desire to watch Pruett pay for
what he had done.

“I have often thought of you
since Wilma’s murder knowing the
same S.O.B. did both of them,” Lan-
ham wrote on May 27, 1986. “I do
not know how you're feeling about
wanting him dead but I will never
have peace until then.”

Margaret and Pauline began ex-
changing letters, then phone calls
and eventually Margaret made the
trip to the Clarks’ Chesapeake
home.

As execution day draws near, old
memories have returned for every-
one. Last week, Earl Clark was hos-
pitalized for bleeding ulcers.

Both families are struggling to
reconcile their disappointment over
not being allowed to attend the
execution.

“Someone might make a demon-
stration and that would be bad,”
William Lanham said. “Like ap-
plauding.”

What they can’t reconcile is the
anger over a judicial system that al-
lowed Pruett appeals that dragged
out the final resolution for so many

“Our judicial system in this
country needs to be made over to
where it doesn’t drag on this long, ”
William Lanham said. “If you could
just get a judicial system like in the
Old West. Six months after the mur-
der was committed, you turn the
killer over to one of the family.
They’d ask ‘You want to get rid of
him for the state?’ and you’d say,
‘Damn right! ”

Margaret Lanham has been wak-
ing up crying again. “I have bad
days,” she said. “My daughter’s bur-
ied right here. I can see the ceme-
tery ... 1 go there every day to be
with her.”

Pruett told police he confessed
to Debra McInnis’ murder to give
her family “peace of mind.”

But there will be no peace, both
families say, until final justice is
done.

The man who killed their daugh-
ters will have to give his life in retri-
bution. Then his parents too will
feel the pain of losing their oldest
child.

“We're not the type of people to
sit and gloat,” Pauline Clark said. “I
feel sorry for his parents. They’re
going to lose their son, and my
heart breaks for them. We’re not
just saying ‘Goody, goody he’s going

to die.’ That’s not us.

“But he has to pay the price.”


‘RIDAY, DECEMBER 17, 1993

+++ RI

_ THE WASHINGTON POST ©

Virginia Man
Executed for

Rape, Murder

Associated Press

JARRATT, Va., Dec. 16—David
Mark Pruett was electrocuted to-
night for raping and killing his best
friend’s wife in Virginia Beach near-
ly nine years ago.

Pruett, 44, was pronounced dead
at 11:11 p.m. here at the state’s
Greensville Correction Center,
where the state’s electric chair is
housed.

“He had his eyes down when they
brought him in and strapped on his
face thask. He didn’t look at any-
body,” said Deborah Thomas-Lamb,
one of eight witnesses to the execu-
tion.

Pruett declined to make a final
statement, she said.

Pruett was visited about eight
hours before his execution by his
wife, Paula, said David Bass, an op-
erations manager for the state De-
partment of Corrections. Bass said
the two had been married recently.

Earlier today, the U.S. Supreme
Court unanimously rejected Pruett’s
appeal. The one-paragraph order did
not give the court’s reasons.

Pruett was convicted in 1986 of
raping and stabbing Wilma Harvey
in her Virginia Beach home on Feb.
12, 1985. Harvey’s husband, Rich-
ard, who had given Pruett a job at
the restaurant he managed, was
away on business at the time.

Wilma Harvey’s nude body, with
multiple stab wounds, was found on
her bed with her hands tied behind
her back.

“Mrs. Harvey’s murder was one of
the worst I’ve ever seen,” said Ken
Phillips, who prosecuted Pruett.

When he confessed to the slay-
ing, Pruett also told investigators
he had killed Deborah McInnis, a
co-worker at a Kentucky Fried

DAVID MARK PRUETT
... convicted in 1985 rape, slaying

Chicken restaurant in Virginia
Beach, in 1975.

He was convicted of first-degree
murder and robbery in that case,
four months after the capital con-
viction. . :

Pruett’s execution was the fifth in
Virginia this year, and the 22nd since
the state reinstituted capital pung
ment in.1982. Only Texas and
ida have executed more people,

In a petition filed with Gov. L.
Douglas Wilder, Pruett’s attorney,
Donald Lee, argued that Pruett’s

“Mrs. Harvey's
murder was one of
the worst I’ve ever

99
seen.
— prosecutor Ken Phillips

death sentence should be com-
muted to life in prison. Because of |*
past convictions, Pruett would not
be eligible for parole.

Lee said jurors who sentenced
Pruett to die never heard about his
severe emotional and psychological
problems.

When Wilder was asked this week
to explain why he rejected clemency,
he pulled out a photo showing W ce

ms


SEMT ION:

MEADL

SERIES

The
ory d

POR HELR SAT LOG 3 FDX 3 S00 NBL 2 LOG CLOSED 3 PRINT OFF 3 ON-LINE
LEVEL t - 1 OF & STORIES
Capyriaght Lous The Washington Fost

(a ee

The Washington Post e

METRO; PAGE Co; AROUND THE REGION

baer 2 ak sre, aye pee
f 2 WwW it y

INE: Death Sentence Upheld.

q
Leeg Tt
wd

Ae

Oceasional

From news services and staff reports

4th U.o. Circuit Court of Appeals in FRichmend yester day upheld the

rtion and death sentence given ta David Mark Pruett for the L385 rape and

mur cley

that

nis

of a Virginia Beach woman. The appeals court rejected Pruett'’s ar gqument
trial lawyer was ineffective, that the prosecutor engaged in misconduct

and that jury instructions were inadequate.

Alt-

vA

Bove

FOR HELPS VT-100 Go FDR 1200 Nel 2 LOG CLOSED 3 FRINT OFF 3 ON-LINE

33

The Washingtean Post, May BY, 1993

Pruett, 93, was convicted of murdering Wilma Har ¥Yey, a friend wha let him

inte

he

ry home while her husband was mut.

In be af

i 7"

id, 1992

POR HELPS VTLOo 2 FDA S$ eOO N@l 3 LOG CLOSED 3 FRINT OFF 3 ON-LINE

LEVEL i - 3 OF & STORIES

Proprietary to the United International 1986


- PRUETT v. THOMPSON

1437

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

General, 696 F.2d 186 (2d Cir.1982) (en
banc). (discussing exhaustion generally),
discussed with approval in Thornton v.
Holland, 789 F.2d 917 (4th Cir.1986) (un-
published).

[3] So-called “mixed petitions,” i.e.,
those containing both exhausted and unex-
hausted claims, must ordinarily be dis-
missed to allow the state courts to consider
the unexhausted claims. Rose v. Lundy,
455 U.S. at 522, 102 S.Ct. at 1205. The
exception*® is when the petitioner has no
available state remedy left, because it is
clear the state would deny review on the
basis of some procedural bar, as discussed
infra. E.g., Harris v. Reed, 489 U.S. 255,
109 S.Ct. 1038, 1043 n. 9, 103 L.Ed.2d 308
(1989); see Meadows v. Legursky, 904 F.2d
903, 909 (4th Cir.1990) (en banc) (otherwise
unexhausted claim deemed exhausted un-
less “reasonable possibility exists” that
state court may apply an exception to its
procedural default rules), cert. denied, —
US. ——, 111 S.Ct. 528, 112 L.Ed.2d 534
(1990).

Even when this exception applies, the
federal court must still dismiss those
claims or portions of claims which either (1)
have been explicitly ruled procedurally
barred by the highest state court consider-
ing the claims, or (2) are not exhausted but
would clearly be procedurally barred‘ if
returned to state court. See, e.g., Bassette
v. Thompson, 915 F.2d 932, 935-87 (4th
Cir.1990), cert. denied, — U.S. ——, 111
S.Ct. 1639, 113 L.Ed.2d 734 (1991); Whitley
v. Batr, 802 F.2d 1487, 1496-1502 (4th Cir.
1986), cert. denied, 480 U.S. 951, 107 S.Ct.
1618, 94 L.Ed.2d 802 (1987).

[4] In Virginia, the basic procedural bar
rule is a simple one: no writ will be grant-
ed on the basis of any legal or factual claim
the petitioner could have made previously,
but did not. See Slayton v. Parrigan, 215
Va. 27, 205 S.E.2d 680 (1974), cert. denied,

3. There are other exceptions, which do not ap-
pear applicable here. See Granberry v. Greer,
481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119
(1987) (state waiver of exhaustion requirement);
Patterson v. Leeke, 556 F.2d 1168 (4th Cir.) (dis-
cussing ineffectiveness of state remedy due to

419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804
(1975); Va.Code Ann. § 8.01-654(B)(2).

[5] As indicated above, the rule will be
given effect under two circumstances.
One situation is where the last state court
rendering a judgment in the case clearly
and expressly states that its judgment
rests on the procedural bar. Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 1068,
103 L.Ed.2d 334 (1989) (quoting Harris »v.
Reed, 489 U.S. 255, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989)); Bassette, 915 F.2d at
936. Another arises when a claim was
never presented to the state courts to begin
with, and the state procedural bar rule
would clearly bar consideration of the new
allegations. Teague, 109 S.Ct. at 1068-69;
Bassette, 915 F.2d at 937.

[6] The Virginia procedural bar is
strictly enforced in state courts, and by the
courts of the Fourth Circuit. See Bassette,
915 F.2d at 937; Clanton v. Muncy, 845
F.2d 1238 (4th Cir.), cert. denied, 485 U.S.
1000, 108 S.Ct. 1459, 99 L.Ed.2d 690 (1988).

[7] A procedural bar may exist based
on default at trial, e.g., Bond v. Procunier,
780 F.2d 461 (4th Cir.1986), on direct ap-
peal, ¢.9., Murray v. Carrier, 477 U.S. 478,
106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or
any stage of post-conviction proceedings,
€.g., Murch v. Mottram, 409 U.S. 41, 93
S.Ct. 71, 34 L.Ed.2d 194 (1972): Waye v.
Murray, 884 F.2d 765 (4th Cir.1989); see
Whitley v. Bair, 802 F.2d at 1498 & n. 19.

[8] There are only two ways to avoid
the effect of a procedural bar or default.
The first is to show “cause and prejudice”
for the default. Wainwright v. Sykes, 433
US. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977).

{9,10] The Supreme Court has never
attempted to give these terms a precise
definition. Reed v. Ross, 468 U.S. 1, 13,
104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984).

inordinate delay), cert. denied, 434 U.S. 929, 98
S.Ct. 414, 54 L.Ed.2d 289 (1977).

4. And thus also deemed exhausted. See Mead-
ows, 904 F.2d at 909.


Z
4,

PRUETT v. THOMPSON

1435

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

Thomas Tsao the assorted mitigating
factors which could be relevant, “consid-
ering the diverse frailties of human
kind; ”

7) failed to “confirm, deny or modify
[Pruett’s] social history” as told to Tsao
during the doctor’s “single one to two
hour interview” with him, based on “only
a few very limited materials” as back-
ground for the doctor’s evaluation;

8) failed to provide Tsao with reports
of “problematic episodes” Pruett’s par-
ents had discussed with counsel;

9) failed to obtain Pruett’s medical or
counselling records;

10) failed to discuss with Tsao the pos-
sibility that Pruett may have been ad-
versely affected psychologically or other-
wise by virtue of (a) the death of his son
shortly after his return from overseas
military service, (b) the break-up of his
marriage, or (c) the financial stresses of
his gambling;

11) failed to consult with Tsao about
Pruett’s various versions of his life
which he [counsel] believed to be manu-
factured and untruthful, despite having
learned from [Pruett’s father] that
[Pruett] had difficulty with truth-tell-
in g3 ”

12) failed to discuss numerous other
developmental problems Pruett apparent-
ly had, which could have supported miti-
gating circumstances such as imperfect
heat of passion and reduced culpability;

13) failed to present evidence in sup-
port of his motion for a second appointed
psychiatrist;

14) failed to consult with Tsao regard-
ing consideration of aggravating circum-
stances of future dangerousness in pris-
on;

15) failed to do a variety of things
supposedly required in competent voir
dire and opening argument;

16) failed to examine or cross-examine
officers about “the crucial issue” of vol-
untariness of Pruett’s initial confession
during police interrogation;

17) failed to object to evidence produc-
ed from a warrantless search of Pruett’s
house on grounds Pruett was incapable

of knowingly waiving his fourth amend-
ment rights by consent; .

18) told the jury Pruett ‘‘wasn’t a hu-
man being,” whom the jury would not be
able to understand;

19) conceded the existence of aggra-
vating circumstances during the sentenc-
ing phase opening;

20) introduced only Pruett’s parents as
witnesses;

21) failed to request appropriate penal-
ty phase jury instructions;

22) failed to request a verdict form
listing both aggravating and mitigating
circumstances supported by evidence and
requiring the finding of aggravating cir-
cumstances unanimously and beyond a
reasonable doubt and mitigating circum-
stances only by a plurality and a prepon-
derance of the evidence;

23) denied the possibility that Pruett
might adapt to incarceration and pose no
future danger; and

24) failed “to adequately raise, brief,
or argue at trial any of the claims in this
petition.”

In addition, the state court’s limited
evidentiary hearing on petitioner’s inef-
fective assistance claims at the habeas
proceeding “was not full and fair.”

H. Pruett was denied the right to
sentencing before a jury on the capital
murder charge after a guilty plea, in
violation of the sixth, eighth and four-
teenth amendments, because:

1) the trial court overruled his motion
to plead guilty to the charges against
him and have a jury empaneled only on
the sentencing for the murder;

2) Pruett did not enter his not guilty
plea freely and voluntarily, because this
motion was denied; and

3) this confused the jury because of
the perception that Pruett “was contest-
ing his guilt by pleading not guilty, in
spite of his failure to put on any defense
at the guilty phase of trial.”

Any procedural default was caused by
ineffective assistance of trial and appel-
late counsel.

I. Pruett was denied the right to se-
lect an impartial jury in violation of the


Eee

1434

to unanimously find at least one agegra-
vating circumstance beyond a reasonable
doubt; and

9) improperly submitted a verdict form
which did not provide for the considera-
tion of mitigating circumstances sup-
ported by the evidence.

Any procedural default was caused by
ineffective assistance of trial and appel-
late counsel.

F. Prosecutorial misconduct denying
Pruett due process of law, and rendering
the sentencing unreliable, in violation of

the sixth, eighth and fourteenth amend-

ments, in that the prosecutors:

1) asked during voir dire. whether the
prospective juror would hold the Com-
monwealth to a higher burden than rea-
sonable doubt, based on the possibility of
a death sentence, to the jury panel’s con-
fusion;

2) improperly discussed plans to intro-
duce evidence of aggravating circum-
stances during the sentencing phase,
even before the guilt phase of trial had
commenced;

3) improperly discussed the victim’s
character in the same opening statement;
4) later offered the victim’s husband’s

testimony as to the victim’s character,
during the guilt phase of trial;

5) referred to such evidence during
closing arguments, and claimed Pruett
butchered the victim solely to eliminate
her as a witness, “despite the absence of
any evidentiary support for this conclu-
sion; ”

6) argued to the jury that Pruett con-
ceded guilt at voir dire;

7) argued at the rebuttal closing that

the jury should show Pruett the same |

mercy he showed the victim, implying
that “because the victim received no trial
rights, [Pruett] was not entitled to those
rights either,” and calling on the jury to
compare the relative worth of Pruett’s
life and the victim’s;

2. The trial court sustained an objection to this

argument and gave a cautionary instruction

771 FEDERAL SUPPLEMENT

8) called during sentencing the hus-
band of a former alleged victim to testify
to how his wife was killed;

9) argued at closing of sentencing that
death by electrocution was appropriate
simply because Pruett was convicted,
and generally “intrud[ed] on the precise
function for which the jury was empan-
eled; ” a

10) commented at sentencing on
Pruett’s lack of remorse for and the hei-
nousness of both the murder at issue,
and the prior unadjudicated murder;

11) argued that the jury need not con-
sider mitigating evidence in sentencing,
and that Pruett would present a danger
to guards and others if he was jailed
instead of executed;? and |

12) argued again that Pruett did not
deserve to rely on mitigating evidence, or
argue for an alternative to death, be-
cause the victim had no such opportunity.

Any procedural default was caused by
ineffective assistance of trial and appel-
late counsel.

G. Ineffective assistance of trial and
appellate counsel generally, in that coun-
sel:

1) had never defended a capital case
before;

2) failed to adequately investigate
sources of evidence for guilt phase de-
fenses, focusing instead on suppression
of Pruett’s statements to law enforce-
ment authorities;

3) directed the jury’s attention to iden-
tify with Pruett’s parents, while failing
to direct them to mitigating evidence;

4) failed to adequately investigate po-
tential mitigating evidence, including
Pruett’s enrollment in a substance abuse
program in 1981, and related evidence of
severe alcohol and drug dependency;

5) failed to conduct “an independent
investigation of ... how being the older
sibling of two handicapped children
might have affected” Pruett;

6) failed to fully discuss with Pruett’s
court appointed forensic psychologist Dr.

about this.


FECES ERE
wong cog he
Toe hited Peay

sibel aa ER

1436

sixth, eighth and fourteenth amend-
ments, because:

1) prospective juror Alfred Friedman
stated he would “lean toward” the death
penalty, given the circumstances which
counsel and the court said would con-
front jurors in the case;

2) the court denied Pruett’s motion to
excuse Friedman for cause, incorrectly
relying on the Witherspoon v. Illinois,
391 US. 510[, 88 S.Ct. 1770, 20 L.Ed.2d
776] (1968) standard rather than the
Wainwright v. Witt, 469 U.S. 810[, 105
S.Ct. 70, 83 L.Ed.2d 20] (1985) standard
for excusal for cause; which

3) forced defense counsel to strike
Friedman with a peremptory challenge,
in violation of his purported right to have
Friedman excused for cause under Ross
v. Oklahoma, 487 U.S. 81[, 108 S.Ct.
2273, 101 L.Ed.2d 80] (1988).

Pruett notes the Virginia Supreme
Court ruled this claim collaterally es-
topped.

J. Pruett’s confession was introduced
in violation of his fourth, fifth, sixth and
fourteenth amendment rights, because:

1) he was in police custody when he
first confessed to the rape, robbery and
murder of Wilma Harvey;

2) he was not informed of his rights
under Miranda v. Arizona, 384 US.
436[, 86 S.Ct. 1602, 16 L.Ed.2d 694]
(1966);

3) he was under the influence of drugs
and alcohol, and was continuing to suffer
from a mental illness brought on by his
return from military service in Vietnam
in 1971, rendering him “unable to distin-
guish truth from fantasy,” or to intelli-
gently waive his fifth amendment rights;
and

4) the police officers’ interrogating
techniques were coercive, rendering his
confession involuntary;

Pruett notes the Virginia Supreme
Court ruled this claim collaterally es-
topped.

K. Pruett was precluded from devel-
oping and presenting mitigating evidence
because:

771 FEDERAL SUPPLEMENT

1) Dr. Tsao failed to provide him with
competent psychiatric assistance general-
ly;

2) Dr. Tsao. failed to evaluate Pruett
specifically for the presence of post-trau-
matic stress disorder resulting from his
“full military and combat experience” in
Vietnam; and

3) because he was denied the opportu-
nity to have a jury sentence him but
enter a guilty plea to the offense, all
such preclusions in violation of Lockett v.
Ohio, 438 U.S. 586[, 98 S.Ct. 2954, 57
L.Ed.2d 973] (1978) and its progeny.

Any procedural default was caused by
ineffective assistance of trial and appel-
late counsel.

L. Itis cruel and unusual punishment
to sentence a mentally ill person like
Pruett to death.

Procedural Default and Exhaustion

Many of petitioner’s claims are wholly or
partly barred by procedural default. Peti-
tioner misconstrues the application of this
doctrine to his petition.

{1] This Court can of course issue a
writ of habeas corpus only if Pruett’s con-
finement is in violation of the federal Con-
stitution or laws. 28 U.S.C. § 2241(c)(8).
Pruett must also have exhausted all state
court remedies available, absent certain cir-
cumstances not present or argued here. 28
U.S.C. § 2254(b). This requirement is
strictly enforced, in the interests of giving
the state courts the first opportunity to
consider and, if necessary, correct the al-
leged constitutional errors in a person’s
conviction and sentencing. E.g., Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982).

(2] Exhaustion generally requires that
the essential legal theories and factual alle-
gations advanced in federal court be the
Same as those advanced at least once to the
highest state court. See, e.g. Picard v.
Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509,
512, 30 L.Ed.2d 4388 (1971); Clanton v.
Muncy, 845 F.2d 1238, 1241 (4th Cir.1988),
Wise v. Warden, 839 F.2d 1030, 1033-34
(4th Cir.1988); see also Daye v. Attorney

BSS BAITS

1446 7171 FEDERAL SUPPLEMENT

merits. See Peterson v. Murray, 904 F.2d
at 888-89.

_ [24] As discussed below, petitioner’s in-
effective assistance claims must fail, under
these controlling principles. The Court will
first review the evidence put on at the state
habeas plenary hearing on these claims. It
will then analyze the claims based on this
review, accompanied where appropriate by
reference to relevant state court findings."

State court hearing

The most important testimony was that
offered by Dr. Tsao and Pruett’s counsel.”

Dr. Thomas K. Tsao

Dr. Thomas K. Tsao completed his psy-
chiatric training in 1970. He has conducted
forensic psychiatric evaluations since 1973,
including evaluations for capital murder
cases. He has also evaluated many mili-
tary personnel, in his role as staff psychia-
trist or chief of psychiatry for United
States Navy medical centers. Hab. I at
51-52.

Tsao had experience in debriefing and
treating several Vietnam prisoners of war,

‘and has evaluated POWs and veterans for

what is commonly called posttraumatic
stress syndrome (“PTSD”). Jd. at 52.
Such evaluations have taken place in the
context of criminal trials, and civil treat-
ment. See id. at 53-54.

Tsao was appointed in October 9, 1985, to
evaluate David Pruett for the assistance of
the court and his counsel at Pruett’s trial
for the rape, robbery and capital murder of
Wilma Harvey. The evaluation had three
purposes: (1) evaluation of Pruett’s sanity,
(2) evaluation of his competency to stand

18. Ineffective assistance claims are mixed ques-
tions of law and fact. Strickland, 466 U.S. at
698, 104 S.Ct. at 2070. This Court must there-
fore reach an independent conclusion on these
claims, although any state court findings as to
historical facts bearing on the claims are pre-
sumed correct under 28 U.S.C. § 2254(d). Cloz-
za v. Murray, 913 F.2d at 1100.

19. Much of the other testimony offered in the
hearings covers the same ground. See Hab. II
at 53-86 (testimony of Pruett’s parents), 86-93
(prosecuting attorney), 93-127 (Stallings’ co-
counsel), 127-141 (medical director for prison

trial and assist counsel in his defense, and
(3) whatever else could be done to assist
counsel in preparing Pruett’s defense. Id.
at 21-25.

Dr. Tsao discussed his task with Pruett’s
lead counsel, Moody Stallings, on several
occasions. Id. at 33-34, 40, 54-55. Among
the issues discussed was the legal defini-
tion of mitigating circumstances. See td.
at 34. Stallings gave Tsao several exam-
ples of what might be mitigating factors,
and Tsao understood that Stallings general-
ly sought “anything that might have in any
way presented Mr. Pruett in a better
light.” Id. at 62.

Stallings provided Tsao with “a great
deal of material’ before the doctor saw
Pruett. Jd. at 40. These materials includ-
ed a transcript. of Pruett’s confession, and
several police reports, which Tsao read.
Id. at 40-41, 54-55.

Tsao was impressed when he met Pruett
with his “clarity of mind and ability to tell
me about his involvement” with the Harvey
and McGinnis killings. Jd. at 41-42.
Pruett was “a nice guy,” “cooperative,”
and able to maintain ‘‘good eye contact.”
Id. at 55. Tsao found Pruett well oriented
as to time, place and person, and otherwise
found “no reason to believe that Mr. Pruett
was not telling ... the truth about his own
social history.” Jd. at 42. Stallings had
previously advised Pruett to be “totally
cooperative” and truthful with Tsao. Jd.

Pruett spoke freely with Tsao over ap-
proximately two hours about his family
history, his going to school, his service in
and honorable discharge from the U.S.
Army, and working at numerous restau-
rants after that discharge. See id. at 44,

where Pruett kept while awaiting trial), 145-55
(psychiatric social worker at prison).

Dr. Brad Fisher, a clinical forensic psvcholo-
gist, also testified at length about Pruett’s men-
tal state. Fisher summarized what he called
“potential mitigating factors.” See id. ar 3-11.
He never expressly opined that Pruett has ever
been mentally ill or incompetent, or fabracated
his confessions, or that he could not have Gelib-
erated over the murder of Wilma Harvex. He
did acknowledge, “I would see him as—es po-
tentially dangerous in the community.” 42. at
44,


fone Reet ot oy!

1448 771 FEDERAL SUPPLEMENT

no strong support for theories of diminish-
ed capacity by way of drugs, alcohol, or-
ganic brain disorder or PTSD. See id. at
191-94,

Stallings considered the variety of miti-
gating evidence he might be able to put on
during any penalty proceedings. But he
grew to believe that putting on weak evi-
dence of Pruett’s good character or mental
defect could do more harm than good.
Stallings felt he “would run the risk there
of turning the jury off,” in light of the
evidence of brutal and calculated rape and
murder which the Commonwealth could re-
spond with. See id. at 125-26.

Stallings spoke with Pruett’s ex-wife on
two occasions. She “did not want to be
involved,” and “offered no help. She said
she could not help me. She could only hurt
me.” Jd. at°126-27.

Stallings also spoke with Pruett’s par-
ents on several occasions, in person as well
as by phone. See id. at 127, 129. The
father “‘told [Stallings] some disturbing
things about David’s youth.” 7? Stallings
decided such matters ‘“‘would potentially do
more harm than good.” Jd. at 128. Stall-
ings could not recall whether he had ad-
vised Tsao about these incidents. Jd. at
129.

Because Tsao would not render any par-
ticularly favorable opinions on the issue of
Pruett’s mental state, Stallings decided to
present as much “smoke” on the issue as
possible. See id. at 1385. That is, he decid-
ed to (1) make the jury identify with and
feel sorry for Pruett’s parents, and (2) sug-
gest implicitly to the jury that Pruett had
problems like his two brothers, who were

21. The following passage from Stallings’ testi-
mony virtually eliminates any doubt about
Tsao’s knowledge of his mission and the diffi-
culty of Stallings’ defense: .

Doctor Tsao commented on how he hid the
murder weapon and the clothes he was wear-
ing after the murder, and I distinctly recall
Doctor Tsao commenting that was the sign in
his opinion of a man who was thinking very
clearly, knew the ramifications of what he
had done, and was thinking about the conse-
quences.
Hab. I at 194.

born with mental and/or hearing deficits.
See id. at 130-35.

From interviewing some member of
Pruett’s family, Stallings discovered that
his infant child had died for some unex-
plained reason, shortly after Pruett’s re-
turn from Vietnam. Stallings did not dis-
cuss this with Tsao. Jd. at 137.

Stallings’ interviews led him to believe
that neither Pruett’s ex-wife nor Dr. Tsao
would offer particularly helpful testimony
at any stage of trial. Dr. Tsao’s conclu-
sions were especially disappointing, be-
cause Stallings understood Tsao to have
“extensive experience” as a “defense ori-
ented” psychiatric expert. See id. at 144,
163.

Stallings’ sworn responses on cross-ex-
amination are the most instructive.

Stallings had approximately 6 years ex-
perience as both a prosecutor and criminal
defense lawyer at the time of Pruett’s trial.
Id. at 156-58. He spoke with Pruett “on a
regular basis” once appointed to represent
him. Jd. at 159. Pruett was always ration-
al and concerned for his defense. Jd. at
159-60.

The day the suppression motion was de-
nied, Stallings consciously switched his fo-
cus to the penalty phase. Jd. at 161-62.
Stallings recognized the confession made it
easy for the Commonwealth to prove both
Pruett’s guilt, and aggravating circum-
stances. See id. at 174.

Pruett initially gave no indications of ad-
verse effects of his Vietnam experience.
Pruett first raised the issue of PTSD 3-4
months after Stallings had been appointed.
He did so after obtaining a copy of some

22. It is revealing that Pruett’s father, who testi-
fied during the state habeas hearing, mentioned
no particular traumatic incident in David
Pruett’s childhood. He indicated only that he
spent little time with David because of his work
schedule and the demands of raising the two
younger, deaf and retarded children. He also
stated that David was temperamental and began
gambling after returning from Vietnam. See
Hab. II at 58-63.

Pruett’s father also acknowledged that he
spoke with Stallings several times, and dis-
cussed David's life “in some detail” with Stall-
ings. See id. at 69-71.


PRUETT v. THOMPSON

1449

Cite as 771 F.Supp. 1428 (E.D.Va. 1991)

pamphlet on PTSD and Vietnam veterans.
See id. at 165-66.

Pruett then stated he had killed many
people over in Vietnam, including women,
and that he had raped and murdered seven
Vietnamese women and one Army nurse.
Id. at 166-68. This conflicted dramatically
with Pruett’s earlier statements that he
was never issued a rifle, and was a cook on
a military ship stationed offshore. Jd. at
167.

Although Stallings recognized such infor-
mation could have supported a PTSD theo-
ry, he thought it dangerous to ask Pruett
to testify as to matters which the Common-
wealth would of course have argued as
simply amplifying Pruett’s dangerousness.
See id. at 171-73. He also discovered no

records of Pruett having any combat expe-.

rience, and found no documentation of an
Army nurse killing like the one Pruett de-
scribed. See id. at 189-90.

Given the apparently strong evidence of
guilt and aggravating circumstances, and
the scant credible evidence of mitigation,
Stallings’ trial strategy was to gain the
jury’s absolute trust. This strategy began
with voir dire and opening statement, dur-
ing which Stallings conceded the gruesome
nature of the crime at issue. “They were
going to hear it sooner or later, [so] I was
going to get them conditioned, [to believe]

you can still give life even as bad as this

situation is.” Id. at 175-76.
Analysis

The functional ineffective assistance
claims fall readily into four categories of
accusations:

(1) Counsel failed to conduct adequate
investigation and follow-up as to evi-
dence he did obtain of Pruett’s family
stresses, military related trauma, alcohol
and drug use and gambling, and the uses
he could make of this information during
guilt or penalty phases of trial. See Pet.
at paras. 113, 115-17, 171.

(2) Counsel chose a constitutionally in-
effective strategy of (a) conceding the
Commonwealth’s ability to prove _peti-
tioner’s guilt and the presence of aggra-
vating circumstances, (b) failing to ask
veniremen if they had family members

who were handicapped or were substance
abusers, which “could have produced”
jurors sympathetic to the plight of per-
sons like Pruett, (c) failing to object to
physical evidence obtained in a warrant-
less consensual search of Pruett’s house
on the ground Pruett was mentally un-
able to voluntarily waive his fourth
amendment rights, and (d) failing to elicit
testimony showing that Pruett’s confes-
sions to police were involuntary and that
Pruett substantially assisted the investi-
gation of the crime. See Pet. at paras.
132-59, 165-70.

(3) Counsel failed to adequately dis-
cuss the goals of a psychiatric evaluation
with Dr. Tsao, provided Dr. Tsao with
insufficient information with which to
make a competent evaluation, and failed
to present appropriate evidence with
which to support the motion he made for
a second psychiatric evaluation by a
PTSD specialist. See Pet. at paras. 119-
31.

(4) Counsel failed to request jury in-
structions and a verdict form as de-
scribed in Claim E, supra. See Pet. at
paras. 160-64.

Finally, Pruett insists the plenary hearing
in state court was not full and fair, appar-
ently because it “did not encompass any
claims relating to ineffective assistance of
counsel at the guilt phase of petitioner’s
trial.” See Pet. at paras. 174-75.

As discussed supra, the jury instructions
given were proper, and Pruett had no right
to the embellishments described in Claim E.
Therefore, counsel cannot be deemed inef-
fective for the Category 4 failures. See,
e.g., Clozza v. Murray, 913 F.2d at 1103-
04; Peterson v. Murray, 904 F.2d at 888-
89; Briley v. Bass, 750 F.2d at 1247-48.

[25] The third part of the Category 3
claims is similarly meritless. See Roach v.
Martin, 757 F.2d 1463, 77 (4th Cir.) (coun-
sel has no constitutional duty to “shop
around for another psychiatrist” who
would have made more favorable evalua-
tions), cert. denied, 474 U.S. 865, 106 S.Ct.
185, 88 L.Ed.2d 154 (1985).


am...

f in =

PRUETT v. THOMPSON 1447

Cite as 771 F.Supp
48. Pruett told Tsao about his two broth-
ers being born deaf and brain damaged.
He denied having any psychiatric disorders
or problems of his own. Id. at 49.

Tsao asked Pruett numerous questions
about his medical history. These included
questions about allergies, previous sur-
gery, blood pressure, and previous history
of head injury or unusual-headaches. Oth-
er than minor blood pressure, arthritis, and
recent minor headaches, Pruett reported
nothing extraordinary. See id. at 49-50.
He did state he was ‘on drugs and had
been drinking” the day he killed Wilma
Harvey, however. Jd. at 56.

Tsao found Pruett’s recall, both in gener-
al and as tested by a “sixty second recall
[test] on three items,” to be inconsistent
with any theory of organic brain problems.
Id. at 57-58. Pruett’s recall abilities were
also inconsistent with any conclusion that
he was extremely drunk or high on drugs
the night of the killing, or that he was
generally so addicted as to render him un-
able to understand his actions. See id. at
58-60.

Other factors inconsistent with organic
problems were Pruett’s level of formal edu-
cation, and his apparent ability to hold
down jobs and function adequately in the
military. See id. at 72-75.

Tsao knew Pruett was on medication at
the time of the interview. Pruett did not
exhibit any disorientation, slurred speech,
or other symptoms that would have inter-
fered with the ability to carry out a proper
evaluation, however. Jd. at 71-72.

Although Tsao asked Pruett whether his
Vietnam experience might have adversely
affected him, he found Pruett to be “rather
proud about having served in Vietnam” for
four years. Pruett also mentioned that
much of his time was spent as a cook, and
that this experience helped him obtain em-
ployment after his discharge. Jd. at 63-64.
Tsao found no indication of PTSD. /d. at
74-75.

In conducting his evaluation and making
his report, Tsao specifically considered

20. The record also indicates that he represented
Pruett at Pruett’s trial for the robbery and mur-

. 1428 (E.D.Va. 1991)

whether Pruett would be a future danger if
left in society, but did not consider his
likelihood of future dangerousness in pris-
on. Jd. at 47-48. His ultimate conclusion
that Pruett: represented a future danger
was based in part on Pruett’s frank admis-
sion to two “murderously violent” events—
the killing of Debra McInnis and of Wilma
Harvey. See id. at 70.

Tsao could not conclude Pruett was in-
sane or substantially impaired at the time
of the crime or'the evaluation. He conclud-
ed in a written report that “the most appro-
priate diagnosis for Mr. Pruett would be of
an adjustment disorder of adult life with
anxious mood (DSM-3 309.24).” Id. at 66.

This conclusion was based in part on the
fact that Pruett had only reasonable ‘“anxi-
ety” about his plight, and did not behave or
respond to questions as one with a substan-
tial psychosis or organic brain problem
would have responded. /d. at 66-67.

Tsao also concluded that Pruett commit-
ted the crimes to fulfill some inner need,
and that he “formulated a plan or knew
how to carry out [the acts necessary] to
fulfill his needs.” See id. at 70-71.

After the report was prepared, Stallings
called Tsao at least four times. Tsao ad-
mitted to Stallings he would not be a good
witness, because he had been unable to
find any substantial mitigating evidence of
the type Stallings had sought. See id. at
67-69.

Moody E. Stallings, Jr.
Moody Stallings represented Pruett at

_ trial and on direct appeal.” He began his

work on the case with a brief meeting with
Pruett, followed by a discussion with the
prosecuting attorney about obtaining rele-
vant confession and rights waiver materi-
als. See id. at 122-23. It was Stallings’
first and only capital case. Jd. at 124.

His initial approach to handling the case
was to concentrate on suppressing Pruett’s
confession. See id. After repeated discus-
sions with Pruett and persons who knew
Pruett, Stallings concluded that there was

der of Debra McInnis, for which Pruett was also
eventually convicted.

ra ,


en

cémamendisha teen a aecoscwemer saw
Coerr; mcorenee aoa panies

en
eS

er rns 0 ama, ot Rr eB toon, pms A

eoneaaaet

aa ern sh a ae

we
oe Re er

LOT me tans Nema neem aes eames sk

rerery
Phe

a Eee
SS Oren a

ES a

1564

(1986), cert. denied, 482 U.S. 931, 107 S.Ct.
3220, 96 L.Ed.2d 706 (1987). The court
found that the death penalty was appropriate
because the crime fit both the “vileness”
prong and the “future dangerousness” prong
of Virginia’s capital murder statute. 351
S.E.2d at 12-14; see also Va.Code Ann.
§ 19.2-264.2 (1977).

Pruett sought post-conviction relief in the
Circuit Court of the City of Virginia Beach,
Virginia by filing a petition for a writ of
habeas corpus. On June 14, 1988 the circuit
court dismissed certain counts in the petition
and ordered an evidentiary hearing on the
remaining claims. The evidentiary hearing
was held on October 18 and 19, 1988. The
circuit court heard testimony from Dr. Tsao,
the psychiatrist who had evaluated Pruett;
Dr. Brown, a forensic psychologist; Mr.
Stallings, the lawyer who represented Pruett
at trial and on direct appeal; Dr. Fisher,
another forensic psychologist; Pruett’s moth-
er and father; Mr. Phillips, the prosecutor at
Pruett’s trial; Mr. Dougherty, an associate at
Mr. Stallings’s firm who worked on Pruett’s
case and trial; Miss Weise, a nurse and
medical administrator at the Virginia Beach
Correctional Center; and Mr. Costigan, the

. psychiatric social worker at VBCC. The cir-

cuit court entered findings of fact and conclu-
sions of law on March 6, 1989 and dismissed
the petition in full by final order of March 27,
1989. On November 16, 1989, the Supreme
Court of Virginia refused a petition for ap-
peal. On May 14, 1990, the United States
Supreme Court denied certiorari. Pruett v.
Thompson, 495 U.S. 940, 110 S.Ct. 2194, 109
L.Ed.2d 522 (1990):

Pruett filed his present action in the Unit-
ed States District Court for the Eastern
District of Virginia on November 29, 1990.
The petition contained a request for an evi-
dentiary hearing. On August 19, 1991, the
district court, without a hearing, entered its
order granting the respondent’s motion to
dismiss the petition. Pruett v. Thompson,
771 F.Supp. 1428 (E.D.Va.1991) (mem.).
Pruett appealed the final judgment and order
of the district court on February 11, 1992.

In this appeal, Pruett raises five grounds:
(1) The state trial court erred in not instruct-
ing the jury on the lesser-included offense of

996 FEDERAL REPORTER, 2d SERIES

first degree murder during the guilt phase of
the trial; (2) prosecutorial misconduct infect-

ed the trial and sentencing; (3) the jury

instructions given at the penalty phase were
inadequate; (4) Pruett received ineffective
assistance of trial and appellate counsel; and
(5) the district court abused its discretion
under 28 U.S.C. § 2254 by failing to grant
Pruett an evidentiary hearing on his habeas
petition, and specifically, on the ineffective
assistance of counsel claim. We will address
each of Pruett’s contentions in turn.

II.

{1] Three of Pruett’s assignments of er-
ror—the trial court’s refusal to grant
Pruett’s request to instruct the jury on the
lesser-included offense of first degree mur-
der, prosecutorial misconduct at trial and at
sentencing, and the adequacy of the penalty
phase instructions—were procedurally de-
faulted. See Pruett v. Thompson, No.
890908 (Va. Nov. 16, 1989). In holding that
each of these claims was precluded because
the same was not raised either at trial or on
direct review, the Virginia Supreme Court
relied on Slayton v. Parrigan, 215 Va. 27,
205 S.E.2d 680 (1974), cert. denied, 419 U.S.
1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975),
which holds that non-jurisdictional challenges
to a conviction may not be raised in a habeas
corpus proceeding if they were not asserted
at trial and upon direct appeal.

{2] At trial Pruett offered an instruction
on the lesser-included offense of first degree
murder excluding the felony-murder theory
of rape, necessarily proceeding on the theory
that there had been consensual intercourse.
The trial court refused the instruction.
There simply was no evidence to support the
giving of such an instruction and Pruett did
not appeal the refusal to the Virginia Su-
preme Court. So that question is precluded
from consideration here, having been pre-
cluded from further collateral consideration
in Virginia, even if raised collaterally, by the
rule of Slayton v. Parrigan, 215 Va. 27, 205
S.E.2d 680 (1974), cert. denied, 419 U.S. 1108,
95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Pruett
has not exhausted state remedies. This sub-
ject is mentioned in more detail in Part III of
this opinion.

5 9 RRS Se

~ here, B3

On dx
rial mis
tion of t
ment tw
guilt, w
without
v. Thom
at 30-3:
not pur
same tr:

extensIv
conduct
preme 4
so was
ation c
review.
of Parr
have be
toe
ced
the dist
respect
argume
ted guu
the re
Court,
not raz
The me
al misd
faultea
directix

On a
alty pi
as the
jury
agree 4

3. Eve
196
raisi
witho
Virgi
and
Parag
also g
he 4
This.


ase

1458 7171 FEDERAL SUPPLEMENT

prosecution did not disclose material evi-
dence); Briley v. Bass, CA No. 83-289-R,
slip op. (E.D.Va. July 12, 1983) (Warriner,
J.) (rejecting argument like that advanced
here) see also Barfield v. Woodard, 748
F.2d 844, 851 (4th Cir.1984) (affirming sum-
mary denial of petition and motion for evi-
dentiary hearing on competency, where
“petitioner’s forecast of evidence did not
suffice to raise a genuine issue.”).

[41] Habeas petitions are routinely de-
cided on the basis of pleadings and exami-
nation of the state court proceedings.
There is no automatic right to discovery or
a hearing: this Court need not conduct a
hearing if it believes “the state-court trier
of fact has after a full hearing reliably
found the relevant facts.” See Townsend
v. Sain, 372 US. 298, 83 S.Ct. 745, 9
L.Ed.2d 770 (1963); see also 28 US.C.
§ 2254(d); cf Rules 6(a), 8(a), 11 of Rules
Governing § 2254 Cases (leave of court re-
quired for discovery, judge “shall make
such disposition of the petition as justice
shall require” if it appears no evidentiary
hearing required, and Federal Rules of Civ-
‘| Procedure “may be applied” to permit
discovery).

Rule 12(b)\(6) of the Federal Rules of
Civil Procedure plainly contemplates dis-
missal of any civil action stating only a
legal conclusion (such as the inadequacy of
state court proceedings), without support-
ing factual allegations. Dismissal is also
proper if the factual allegations are as-
sumed true, but still state no legal claim
for relief. E.g., Adams v. Bain, 697 F.2d
1213, 1216 (4th Cir.1982).

[42] Accordingly, habeas petitioners
seeking discovery or federal hearings must
allege the ways in which the state court

fact finding procedures were inadequate.

See Roach v. Martin, 157 F.2d 1463, 1470
& n. 6 (4th Cir.1985) (petitioner had no
right to evidentiary hearing “to redevelop
his constitutional claims that the state
courts found were without merit,” espe-
cially where he did not specify which factu-
al tindings were inadequate, and which le-
gai conclusions they affected).

lt is also appropriate to consider the con-
sistency of petitioner’s assertions underly-

ing the claim for discovery. See id. at 1471
n. 9 (noting significance of conflicting sto-
ries related by defendant to counsel, psy-
chiatrist and police).

[43] Newly raised allegations of compe-
tency or state of mind do not demand dis-
covery or a hearing, where the state court
record “clearly supports a finding that [pe-
titioner] vividly recalled the details of the
murders and that he was able to distin-
guish between right and wrong.” Id. at
1471.

Pruett makes only two reasonably partic-
ular allegations about the inadequacy or
unfairness of the state court proceedings.
These are the alleged false testimony of
persons at the plenary hearing, and the
state court’s summary dismissal of guilt
phase ineffective assistance claims before
hearing. They are both addressed at the
end of the Claim G discussion, supra.

Vv

For the reasons stated above, the respon-
dent’s motion will be granted, the petition
will be denied and this action dismissed.

‘ Ba ate YG ss Taf at, 2S 4. o®
Peps Na he eo he oo ak aga sonatas
“tphoapiottscash appar en pis oee4 ;
bie pies boats SESE! $45

© EKEY NUMBER SYSTEM

4qyms

Steven AUGUSTUS, et al.

Vv.

Honorable “Buddy” ROEMER, et al. at ee
Civ. A. Nos. 90-4667, 91-1441 to 91-1443. -

United States District Court,
E.D. Louisiana.

July 16, 1991.

Action was brought challenging Louisi-
ana statutes imposing 2% fee as condition
for posting bail and being released in speci-
fied parishes. On arrestees’ motion for
preliminary and permanent injunction, the

a a ee er a ee eee eee:

1560

996 FEDERAL REPORTER, 2d SERIES

show that the Union consciously relinquished
its right to the information. The Union pos-
sesses a statutory right to the witness identi-
ty information. The existence of a plausible
explanation other than waiver for the Union’s
actions at the bargaining table negates any
claim that Resorts has demonstrated “clear

and (1) of the NLRA by refusing to provide
the Union with the requested witness identi-
ty information. Thus, the petition for review
of Resorts International Hotel Casino will be
denied and the Board’s cross petition for
enforcement will be granted and its order
enforced.

and unmistakable” waiver. See Proctor &
Gamble, 603 F.2d at 1318 (“The Company
. Must show more than that the Union

w
fe) E KEY NUMBER SYSTEM

yielded its initial bargaining position during ui
. hegotiations.... It must go further to

show that the parties intended to limit the

| Union’s statutory right to the information.”);

|| American Distrib, 715 F.2d at 450 (“The
{

| I Union’s abandonment and foregoing of the CBavid M. PRUETT, ange
| | contractual provision is insufficient to consti-

tute a waiver of its statutory right to bar-
gain.”). Hence, the Board did not err in
determining that Resorts failed to prove that
the Union clearly and unmistakably intended
to waive its right to the witness identity
information at issue in this case. See id.;
accord NLRB v. United Technologies Corp.,
884 F.2d 1569, 1575 (2d Cir.1989).

III. CONCLUSION

In conclusion, we hold that an employer
has a duty, absent a waiver, to furnish the
Union upon request with relevant informa-
tion pertaining to complaining witnesses, who
have neither requested nor received a prom-
ise of anonymity and whose complaints be-
come the basis for disciplinary proceedings
against employees. Resorts failed to estab-
lish a legitimate confidentiality interest in the
witness identity information because the
complaining guests neither requested, nor
received an offer of, anonymity. In such a
scenario, a guest who voluntarily comes for-
ward to lodge a complaint has no reasonable
expectation that his or her name will be kept
confidential.

Furthermore, the Union’s failure to insist
on inclusion of an express provision guaran-
teeing witness identity information in the
collective bargaining agreement falls far
short of sustaining Resorts’ heavy burden of
proving that the Union unmistakably waived
its right to the -witness identity information.

Accordingly, the Board did not err in find-
ing that Resorts violated subsections 8(a)(5)

Bh fructl execrkd ld 93 oe

Vv.

Charles THOMPSON, Respondent-:
Appellee.

No. 92-4002.

United States Court of Appeals,
Fourth Circuit.

Argued June 17, 1992.
Decided May 25, 1993.

Defendant’s convictions for rape and
capital murder, and death sentence were af-
firmed on direct appeal by the Supreme
Court of Virginia, 232 Va. 266, 351 S.E.2d 1.
Defendant filed federal habeas corpus. peti-
tion following unsuccessful state petition and
appeal. The United States District Court for
the Eastern District of Virginia, James R.
Spencer, J., 771 F.Supp. 1428, dismissed peti-
tion. Appeal was taken. The Court of Ap-
peals, Widener, Circuit Judge, held that: (1)
evidence did not support requested instruc-
tion on lesser-included offense of first-degree
murder; (2) failure to appeal refused lack of
rape instruction was not ineffective assis-
tance of counsel; (8) failure to offer lesser-
included offense on deliberation and premed-
itation instruction was not ineffective. assis-
tance of counsel; and (4) trial counsel’s stra-
tegic decision concerning use of court-ap-
pointed psychiatrist’s opinion was not mani-
festly unreasonable.

Affirmed.

@ tvs


Hi
%
2
eo
px
& 5
ng
Le
<r
<

PRUETT v. THOMPSON 1563
Cite as 996 F.2d 1560 (4th Cir. 1993)

Robert H. Anderson, III, Asst. Atty. Gen.,

4 Office of the Atty. Gen., Richmond, VA, ar-

gued (Mary Sue Terry, Atty. Gen., on brief),
for appellee.

Before RUSSELL, WIDENER, and
HALL, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

David Mark Pruett attacks a Virginia state
court judgment sentencing him to death.
The United States District Court for the
Eastern District of Virginia denied his peti-
tion for a writ of habeas corpus. We affirm.

I.

On February 12, 1985, Pruett went to the
home of his friends Richard and Wilma Har-
vey.! Richard Harvey was out of town, and
Pruett stopped in, ostensibly to check on
Mrs. Harvey. Pruett chatted with Mrs. Har-
vey for several minutes. When the paperboy
came to the door to collect, Mrs. Harvey paid
him from a grey cashbox. Upon seeing Mrs.
Harvey take money from the cashbox, Pruett
formed the intent to rob Mrs. Harvey. Mrs.
Harvey and Pruett continued to talk until
she said that she needed to get ready to go
to church. Pruett asked for permission to
use the bathroom.

While in the bathroom, Pruett decided that
he “wanted some sex” and “told himself ‘well
go do it.” He went upstairs and told Mrs.
Harvey. that he “wanted some sex.” - At first
Mrs. Harvey refused, but Pruett drew a
knife that he had brought with him and
forced her to submit.. After he raped Mrs.

Harvey, Pruett bound her hands and feet.

and used a sock to tie a gag over her mouth.
Pruett then stabbed Mrs. Harvey several
times and cut her throat open.. The medical
examiner counted twenty-nine stab wounds
in all; several of which would have been fatal
alone. The Supreme Court of Virginia did

1. These facts are taken from Pruett v. Common-
wealth, 232 Va. 266, 351 S.E.2d 1 (1986), cert.
denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d
706 (1987), and Pruett’s confession, and they are
not materially in dispute.

not articulate a reason for the initial stab-
bing, but found that Pruett: cut Mrs. Har-
vey’s throat when she tried to kick him while
he was stabbing her. See 351 S.E.2d at 13.

After he killed Mrs. Harvey, Pruett ran-
sacked the house looking for money. He
took all the money that he could find, includ-
ing the money in the grey cashbox. He then
disposed of his blood-soaked clothes and the
knife. Mrs. Harvey’s body was discovered
on her bed by relatives the next day.

On February 14 the police interviewed
Pruett twice. During the first interview at
1:00 a.m., Pruett admitted visiting Mrs. Har-
vey, but denied any knowledge about the
killing. In response to a question about
whether he had any idea of who might want
to kill Mrs. Harvey, Pruett stated, “IT can’t
understand it. I, I can’t feel that anybody
could.” He also said that he was more anx-
ious to find the killer than the police were
and that he would take a polygraph test.
After the police discovered that Pruett’s fin-

gerprints had been found on the headboard |

of Mrs. Harvey’s bed and on-her eyeglasses,
they again questioned Pruett. Pruett con-
fessed to robbing, raping, and killing Mrs.
Harvey, and he also confessed to robbing and
killing Debra McInnis in 1975, a friend he
knew through working at Kentucky Fried
Chicken.” :

Pruett was charged by indictments with

the capital murder of Mrs. Harvey during
the commission of, or subsequent to, rape;
rape of Mrs. Harvey; and robbery of Mrs.

Harvey. A jury convicted Pruett on all three

charges and fixed his punishment for rape at
life imprisonment and for robbery at 75
years in prison. The same jury then. heard.
evidence in aggravation and mitigation of the
murder charge and‘ returned.a sentence of
death. On March. 26, 1986, the trial court
imposed the sentences fixed: by. the: jury.

The Virginia Supreme Court affirmed the:

judgments and sentence of death. .. Pruett...

Commonwealth, 282 Va. 266, 351-S.E.2d- 1.

2. Pruett was convicted of the murder of Mrs.
McInnis in a separate nonjury trial, for which he
received a life sentence under the noncapital
murder statute, Va.Code Ann. § 18.2-32. The
McInnis murder was also a brutal stabbing, with
the motive ‘apparently being ‘robbery. ;

at

—


jury the
1e would
e and he

, I guess

_ was my
aake the
nyone in
’ forever.
3 evalua-
to deter-
a future
ik that he
angerous-
usness to
the sys-

ling with.
alk about
ommunity
rio, that’s

want Tsao
\ give him
xe, but he
yrison.

hich Stall-
oinion that
, to get the
nce meant

t Stallings
ae facts of
1e plenary
not pursue
because it
1ed that he
ometime a
+ made the
urse while
erty about
and about
Irs. Harvey
claimed to
Pruett was
retween his

ed Pruett to
isorder. See
‘n, DSM-III-
oes not press
hese killings,
wailable mili-

PRUETT v. THOMPSON

1573

Cite as 996 F.2d 1560 (4th Cir. 1993)

killing of Mrs. Harvey and the ones he
claimed to have committed in Vietnam was

" that he raped Mrs. Harvey, while the .Viet-

nam killings allegedly occurred after consen-
sual sex. Pruett immediately recanted that
he raped Mrs. Harvey and said that she had
engaged in consensual sex with him. Dough-
erty testified that “I felt at that point that
there was no reality in that. I mean, he
changed [his story] to suit our needs—the
defense’s needs.” Pruett would have us hold
that it is objectively unreasonable for a law-
yer to fail to further investigate a claim that
‘s based on underlying facts the lawyer with
good cause believes to be incredible. This
we decline to do. We also note that this
decision by Stallings and Dougherty is sup-
ported by the record. Even Pruett’s confes-
sion has no hint of consensual intercourse, aS
we have previously pointed out.

Having found that Stallings’s decisions not
to pursue the future-dangerousness-in-prison
argument and the claim of consensual sex
were objectively reasonable, we find no de-
fect in Stallings’s performance in these two
respects and do not reach the prejudice is-
sue. We next turn to the group of Pruett’s
ineffective assistance of counsel claims relat-
ing to Stallings’s investigation and presenta-
tion of a psychiatric defense. _

B.

[17] Pruett argues that Stallings failed to
investigate or present psychiatric evidence
that could have been offered in mitigation of
Pruett’s crime. He argues that Stallings did
not adequately follow up on Dr. Tsao’s: find-
ings, did not consult with additional experts,
and failed to develop other evidence of men-
tal illness, developmental problems, organic

12. In Waye v. Murray, 884 F.2d.765, 766-67. (4th
Cir.) (per curiam), cert. denied, 492 U.S. 936, 110
S.Ct. 29, 106 L.Ed.2d 634 (1989), we rejected the
notion that there is either a procedural or consti-

tutional rule of ineffective assistance of an expert
witness, rather than ineffective assistance of
counsel. Rather, the rule is that the due process
clause requires that the State appoint a compe
tent expert witness to evaluate the defendant's
mental state when it is in serious question, and
the defendant is indigent. Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
However, Ake requires only a competent. expert.
Pruett does not claim that Tsao was incompetent;
he claims only that there were better qualified

brain damage, and post-traumatic stress dis-
order. After a review of the record, we find
that Stallings’s actions with respect to inves-
tigating a possible psychiatric defense were
objectively reasonable.

At the outset, we note that much of
Pruett’s fault-finding lies with Tsao. Howev-
er, Pruett asserts a claim of ineffective assis-
tance of counsel, which requires us to review
the lawyer’s conduct.”

We also note that in the usual case, this
court is presented with conflicting psychiatric
or psychological testimony. A defendant
who appears to be suffering from some sort
of mental illness, abnormality, or condition is
usually evaluated by a state psychiatrist
whose conclusions are disputed by the de-
fense’s psychiatrist or psychologist. Here,
we do not have that dispute. Stallings re-
quested a psychiatric evaluation of his client
and recommended a psychiatrist. The cir-
cuit court judge ordered Stallings’s chosen
psychiatrist, Dr. Tsao, to conduct the evalua-
tion. Stallings chose Tsao because he had
consulted with other defense attorneys and
had been told that Tsao was defense orient-
ed.

Stallings’s testimony reveals that he spoke
to Tsao several times in an attempt to find
evidence of mitigation. He recounted what
he termed his “last call of desperation” to
Tsao imploring him to find something he
could use in mitigation. Stallings also asked
the court to appoint another psychiatrist to
make an evaluation on the basis that Tsao
was not an expert in post-traumatic stress
disorder. The court denied the request.
Stallings testified that he felt he was clear in
telling Tsao the purpose of the evaluation,

psychiatrists available. See 771 F.Supp. at 1442.
We will not graft the Strickland effective assis-
* tarice of counsel test onto the performance of an

expert witness in these circumstances. In Waye

we stated:

It will nearly always be possible in cases in-
volving the basic human emotions to find one
expert witness who disagrees with another. ...
To inaugurate a constitutional or procedural
rule of an ineffective expert witness in lieu of
the constitutional standard of an ineffective
attorney, we think, is going: further than the
federal procedural demands of a fair trial and
the constitution require. 884 F.2d at 767.


- TS one . sin ioe So Sabet. = B 3
BIOS TU Sat 0 a ACT Cee! - mee = =

1574

and Stallings also testified that he had no
reason to believe that Tsao had not per-
formed as he was asked. Stallings agreed
that he was satisfied with the way Tsao had
conducted his evaluation and had problems
only with the fact that Tsao’s conclusions did
not fully suit the defense’s requirement.

Despite all of Stallings’s efforts, Pruett
would have us find that Stallings should have
known that Pruett suffered from mental ill-
ness, organic brain damage, developmental
problems, and post-traumatic stress disorder,
and that Tsao’s evaluation was flawed. We
cannot reach that result. An attorney is not
required to be so expert in psychiatry. Stall-
ings did the objectively reasonable thing
when appointed to Pruett’s case: he asked
other members of the defense bar to recom-
mend a psychiatrist who would begin his
evaluation on Pruett’s side. Stallings spoke
with Tsao often and tried to persuade him to
change his evaluation. He also provided
Tsao with much of the information that
Pruett now claims would have made all the
difference in his psychiatric evaluation, in-
cluding the fact that Pruett had two siblings
with organic brain damage. We simply do
not find any defect in Stallings’s perfor-
mance, and we therefore find that Pruett
received effective assistance of counsel within
the meaning of Strickland. |

C

Pruett’s last claim is that the district court
erred in denying him an evidentiary hearing
on his ineffective assistance of counsel claims.
He claims that evidence should have been
taken in the state habeas proceeding to de-
termine seven ineffective assistance of coun-
sel claims he now asserts. We find no merit
in this contention.

Pruett complains about three principal as-
pects of trial counsel’s performance: the fail-
ure to request the appointment of a forensic
pathologist to testify that the absence of
lacerations and bruises around Mrs. Harvey’s
genitalia diminished the likelihood of forcible
rape, the failure to inquire on voir dire as to
13. We agree with the district court that Pruett

“has never argued that Dr. Tsao was not general-

ly qualified to evaluate him. He claims only that
there were better qualified psychiatrists available,

996 FEDERAL REPORTER, 2d SERIES

whether jurors could consider finding the
defendant guilty of a lesser-included offense
of first degree murder if they were presented
with evidence raising a reasonable doubt as
to the defendant’s ability to premeditate the
claim, and the failure to offer a first degree
murder instruction based on a lack of pre-
meditation.

[18] We note that Pruett’s claim about
trial counsel’s performance with respect to
the appointment of a pathologist was not
raised in his federal habeas petition and his
claim should therefore be dismissed. A
hearing could not. remedy this procedural
default and we ordinarily do not consider
claims not raised in the district court.
Pruett’s claim is so obviously without merit,
however, even if properly before us, that we
have no hesitation in stating that it does not
take a forensic pathologist to conclude that
absence of lacerations or bruises around a
rape victim’s genitalia is evidence consistent
with consensual intercourse. So the failure
to request the appointment of such a witness
does not amount to a showing of an incompe-
tent attorney.

Pruett’s: next claim is not procedurally de-
faulted, but it is equally without merit. The
failure of trial counsel to inquire as to wheth-
er the jurors could consider finding the de-
fendant guilty of the lesser-included offense
of first degree murder as outlined above is
no more than a question as to whether or not
the jurors could do their duty if instructed
and is not even evidence of incompetent rep-
resentation. .

Stallings’s performance in not offering a
first degree murder instruction on a lack of
premeditation theory is an issue we thor-
oughly discussed in Part III(B), supra, and
we found to be without merit.

Three other matters which Pruett now
claims demanded a hearing are his claims
that his appellate counsel was ineffective.
Specifically, Pruett faults Stallings for failing
to appeal the trial court’s refusal to give the
first degree murder charge based on the lack

or that other psychiatrists would have rendered
ypinions more helpful to his defense:...” 771
F.Supp. at 1442.

wo Uhlep ites IIL AT RE eae
Se Et bags CARMRG Pe Pe Me Seed


wh OR RT

PRUETT v. THOMPSON | 1575

Cite as 996 F.2d 1560 (4th Cir. 1993)

of rape theory, failing to appeal the trial
court’s ruling on the admissibility of the vic-
tim impact evidence, and failing to assign as
error several instances of claimed prosecuto-
rial misconduct. We note at the outset that
Pruett’s claims of ineffective assistance of
counsel on these issues are an attempt to
have the merits of his underlying procedural-
ly defaulted claims determined. Pruett
hopes to establish cause and prejudice for his
defaults under the meaning of Murray v.
Carrier, supra. We find that he has not
made his case for ineffective assistance of
counsel or proved his need for a hearing.

Pruett’s first claim about Stallings’s failure
to appeal the lesser-included offense instruc-
tion also was discussed in Part III(B), supra,
and we need not repeat that discussion here.

[19] Pruett’s second claim is that his ap-
pellate counsel was ineffective for failing to
appeal the introduction of (1) Mr. Harvey's
testimony at the guilt phase of trial; and (2)
Mr. MclInnis’s testimony in the penalty
phase. As to the claim regarding the failure
to appeal the introduction of Mr. Harvey’s
testimony at the guilt phase, this claim has
not been exhausted and should be dismissed.
See 28 U.S.C. § 9254(b). Although Pruett
pleaded this particular claim of ineffective
assistance of appellate counsel in his amend-
ed state habeas petition, see Amended State
Habeas Petition at q1 214-25, he defaulted on
this claim when he failed to argue it to the
Virginia Supreme Court on habeas review."!
Instead, in arguing why the state habeas
trial court improperly applied the Parrigan
rule to his claim relating to Mr. Harvey’s
testimony, Pruett stated in his Petition for
Appeal that Mr. Harvey’s testimony was ob-
jected to at trial, and, incorrectly, that
“(these claims [the Harvey and McInnis tes-
timony} were likewise raised and adjudicated
on direct appeal to this Court.” Pruett v.
Thompson, No. 390908, Petition for Appeal
at 7 (Va. Nov. 16, 1989). In fact, Pruett did
not argue the claims relating to Mr. Harvey’s
testimony on direct appeal. Whether by in-
advertence or design, the failure to present
the matter of Mr. Harvey’s testimony to the

14. Claims of ineffective assistance of counsel that
a petitioner proffers to establish cause and preju-
dice under Murray are themselves subject to the

Virginia Supreme Court has not been over-
come. See Coleman v. Thompson, — US.
_—_—, —, 111 S.Ct. 2546, 2559, 115 L.Ed.2d
640 (1991). An evidentiary hearing in the
district court cannot cure the problem, and
we note that the merits of the underlying
claim itself are also procedurally barred.
The claims relating to Mr. Harvey’s testimo-
ny were never presented to the Virginia Su-
preme Court and are therefore defaulted un-
der the Parrigan rule, as the state habeas
trial court found. Pruett v. Thompson, No.
CL 87-2070 (Cir.Ct. of Va. Beach, June 14,
1988).

As for the second half of Pruett’s claim,
which relates to Stallings’s failure to appeal
issues related to Mr. MclInnis’s testimony in
the penalty phase of trial, the claim is patent-
ly without merit as several issues related to
Mr. MclInnis’s testimony were, in fact, ap-
pealed to the Virginia Supreme Court and
found to be without merit. Pruett v. Com-
monwealth, 232 Va. 266, 351 S.E.2d 1, 11-12
(1986). And we note, in passing, our agree-
ment with the reasoning of the Virginia Su-
preme Court on the merits. See also Payne
vy. Tennessee, —— US. —, 111 S.Ct. 2597,
115 L.Ed.2d 720 (1991) (holding that the
Fighth Amendment erects no per sé bar to
the admission of victim impact evidence in
the penalty phase of a capital murder trial).
Stallings’s conduct in appealing issues relat-
ed to McInnis’s testimony cannot now sup-
port a finding that Stallings was ineffective
for failure to appeal these same issues. An
evidentiary hearing could not convince us
otherwise.

Pruett next argues that his appellate coun-
sel was ineffective for failing to appeal sever-
al instances of alleged prosecutorial miscon-
duct at the guilt and penalty phases of trial.
At the guilt phase, Pruett complains about
the prosecutor's offering evidence of Mrs.
Harvey’s character, arguing that Stallings
conceded guilt in voir dire, stating that he
would offer evidence in aggravation at the
penalty phase, and telling the jury in closing
argument that it should show Pruett the
same compassion that he had shown Mrs.

procedural default and exhaustion rules. Mur-
ray, 477 U.S. at 488-89, 106 S.Ct. at 2645-46.


os magna 7a see Oe ISS tO FOOT SO LO a erenangpranernaote mas om gio sn crest . a rs
~*

epee a2e
eg

pe oregon

ney fart eet

1576

Harvey. At the penalty phase, Pruett com-
plains about the prosecutor’s stating that a
death sentence would be appropriate based
solely on the guilt-phase verdict, stating that
the Commonwealth could not conceive of a
more appropriate case for the death penalty,
arguing to the jury that it.did not have to
consider mitigating evidence, arguing that
Mrs. Harvey did not have due process or an
alternative to the death penalty, offering Mr.
McInnis’s testimony about the condition in
which he found his wife and the crime scene,
and arguing the heinousness of the McInnis
murder. All of these acts, he argues, consti-
tuted prosecutorial misconduct, and his ap-
pellate counsel was ineffective for failing to
raise them on direct appeal.

[20] Two of the claims—the prosecutor’s
arguing that Stallings had conceded guilt and
the offering of Mr. MclInnis’s testimony—
were raised on direct appeal to the Virginia
Supreme Court and fully litigated on the
merits. We agree with the Virginia Supreme
Court on the merits, 351 S.E.2d at 10-12, and
fail to see how claims that were raised on
direct appeal can now form the basis of an
ineffective assistance of appellate counsel
claim. Further, the claim that the prosecu-
tor committed misconduct when he argued
the heinousness of the McInnis murder to
the jury also is without merit and cannot
support a finding of ineffective assistance of
counsel for failing to raise it on appeal. The
admission of testimony about the McInnis
murder was proper, see Payne, supra, and

15. Stallings did request that the court instruct
the jury that the court would sentence Pruett if
the jury could not reach a unanimous sentencing
verdict. The trial court refused the proffered
instructions. Stallings raised that claim on ap-
peal to the Virginia Supreme Court. The state
habeas court found that that part of Pruett’s
habeas claim could not be relitigated and Pruett
appears to have abandoned the argument before
this court.

Pruett also argued in his state and federal
habeas petitions that the jury should have been
instructed that they must unanimously find a
statutory aggravating factor, see Part II, supra.

” Pruett also appears to have abandoned this claim
before this court. In any event, the merits of the
claim are procedurally defaulted because the
claim was not raised on direct appeal to the
Virginia Supreme Court, see Pruett v. Thompson,
No. CL 87-2070 (Cir.Ct. of Va. Beach, June 14,

1988) (relying on Parrigan), and the claim is

996 FEDERAL. REPORTER, 2d SERIES

the prosecutor did not commit misconduct by
arguing properly admitted evidence to the
jury. Surely if there is no prosecutorial mis-
conduct, there can be no ineffective assis-
tance of appellate counsel for failure to as-
sign as error on appeal the proper conduct of
the prosecutor.

The district court found that the merits of
all of the remaining allegations of prosecuto-
rial misconduct were defaulted except per-
haps the prosecutor’s offering some evidence
relating to the character of Mrs. Harvey.
See note 4, supra. Although the claim that
Stallings’s failure to assign as error in the
direct criminal appeal this list of alleged
items of prosecutorial misconduct was inef-
fective representation was presented to the
state habeas trial court, it was not pursued in
the state Supreme Court, so the district
court held correctly that the subject was
procedurally defaulted. The matter has not
been presented to the state Supreme Court
and is precluded from consideration here by
Murray v. Carrier, 477 U.S. 478, 489, 106
S.Ct. 2639, 2646, 91 L,Ed.2d 397 (1986).

Pruett’s final claim of ineffective assistance
of counsel relates to the penalty phase in-
structions at trial.!5 Pruett appears to argue
that Stallings should have requested an in-
struction that informed the jurors that they
were required to consider mitigating evi-
dence.'*® The state habeas court dismissed
the claim as meritless without a hearing.
Pruett v. Thompson, No. CL 87-2070 (Cir.Ct.

nonetheless without merit. In Coleman v.
Thompson, 895 F.2d 139 (4th Cir.1990), aff'd on
other grounds, — U.S. —, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991), we noted that Supreme
Court precedent makes clear that there is no
constitutional right to be sentenced by a jury,
and the automatic review which the Virginia
Supreme Court is statutorily required to conduct
of every sentence of death precludes the: argu-
ment that a Virginia sentencing jury must unani-
mously find a statutory aggravating factor. Cole-
man, 895 F.2d at 145-46. The Virginia Supreme
Court found that both aggravating factors had
- been proven in this case. 351 S.E.2d at 13-14.

16. Pruett argues in his brief that this constituted
ineffective assistance of appellate counsel. How-
ever, the claim makes no sense in that light
because there was nothing from which Stallings
could have failed to appeal: We therefore con-
strue the claim as one of ineffective assistance of
trial counsel.

bs -durally 4
e
aa

er, the ir
is before
_ ineffectiv
¥ offer ad
the ones
This que
the instr
v. Bass.
1984) (a
£ “and finc
* informs
i

4 cond

j,  mitigat
i +1088, 1!

e

@ ~ Wet
«, ‘not ent


Me at tbewes,

ee

4
{

a-L hfs bead oS ee

Tals

—— 4

‘

Sealine ee ne

a

ons Harti ie Nested wnat
ARDS pr se 94 Abe tere Seat me NE oe a et:

mae

sb tated premade id

te
4

Eemered

pam

n

Af TLIIL2

cathe ype eb hss

27e

7

HPPAQLS-’ CFP.
Pak see ey gb need


———

REUBEN, a slave, hanged Campbell County, Virginia, on August 20, 1819. | :

— ae Bie aes eT

$aack>i

apes eee * hind

hes Sfp ay ett aff os fi hing v8
a Aes é cwenab iid ies Aaistofoa Ehah ia Eee

oF LL, fa as eee i.

os * ‘3 oF Pe Pe a yh ‘ 4° 9
V6, (Liew i papooae paca reel epee £02k
a>

Sty}

jhe [ahesa Ko dis oe etal A /

, " 2s laa Su i mt wv * tise ma" ates es
mr Di a wee -* 24 : re ee eee | f- % ¢ 2 a ral :
; : 2

eee aa é 6 bes ont 7)
ee ee
} (if 0” Sat
a : > .

: +“ cog 2 sada

| is snk, is
day i eT fs ;

- ee eat “he hice HE Clico iis

eee : Lo & Ape J be Forth a A
fe lon “ ore lavdus ow “ho “$eiah =. 4 Pxe
iS ; oie Sana oe £7. jf

ae ad ged Ohad 1 lostohrew ll

fis, e ck

fs

4s an fare
: ” ead 1 é, occ ST ay,

—y - . .

or

ace : a genes ; : i a
Ace kegs diely~, WitieG a GG sae Lee tee Eee TY. "Yan

ie ~ ———

ad ‘ 4 : :
£2 bas ie a
at See a 4 che Chee e, roeer, We ry te . Jeveserivars
- a . in \

: ego fete Gia ZL i Se Lan! fa re oS ins “3 tcp \ Vora f- see
2a fab, oie Boas si art anes Phwlesind Coccses) Es
vodte wah Ltt Loa Saud Sta sd. Ae Mako Pra hak ah So isec) TicacaX” be af panecd
oie nal 1g er

£ Pye Drulh wry Laas fi

aie ae? eff

2 Pe

, ~ ; fae ey S28.
cum ae aay; — e3 a.35" at, pate ~ o.ccee”

are, Zig

Bi hoe i 4 7™ oD 8, wt 4B nl ip z, hy x. TNE s yas
a aN Soe ag Te a buy a. DB tle Clee aa 4 if ar 29 a acts Abe
els pa ti 3s % ” we FARE FSET IS
‘ Beit ge ui re aay a ee

j hades teat hon, 2 an Lame wan = we ao ce ‘s ; . Sr - ‘3-9 a5
ca s. ee = . a = : tg Pe es W jee? Lk
t _ ar: RA w“, Sonastiptiang aap EL.
ote = 8, fies ae tak, hol Se: = bo 7} asf (aig) y foe?
t ° oe ae oe 7 . wal ad 4 y : :
t : weenie Seavegfinfe * me ot % 2 ake "4
! Creceiad i ah, 308 25 ora Bok we t TEs foo sarc
: fae mp Be A al
~s = —_ 2 * ey Bea we Beehive i wet f° fe - = ee
Be et ao . Llosa al -
ten. Z ae t 4
a . Lae ore ee f= G
. ; . yo. , ad -_—_
By aces ea Anke Lae ep 7 Dig cc Ss . i ; ~ ys 0 - LK...

_

Lo OL tis cal, be. ZIG « ss Zi ae flocks
oe a 33 aN : 5 /,
oN wnly of rtalorc Ups
= mt dys \

F, wsiois bik AP. i ees 4 Wt OE. oe Lhe Ly

- ’ °
Bier ~ bz Cub rin Goel, Guu tea, Phone ad Coes Chad: <<zee) Mot

. Eff = “fi ial a
mt Meh ce better ere | Mies: 2 it (ihe tere? Mis

2

. * . | an 2) - == re ve -
x, : ‘ i _ 3 . ; é n _e é
at weer a teen “g ~aer pa kytees -- a we = a meme eee 2 kee ane <—
a a PN ee Kvmoe at H5 FSi phos ASN

e o- Ye fad cama “? ws Beco Mieke Ghoa, La ae ee. “ asa |

x€ “if i
tetaar “ahs atin ’


La: efi fswe anD De Ee aes
ae / &
pfu ok see trib Se fo Se ee ao

yD
ne Lice Soa: ) 2 ashen hak Ses Koes eo ce, ae

eer ee oe eee) Se enrtMhid OD C.

“ew Ze oS “a

i how (Jn i Ie te och Ae

g a ae ae ——- ee sD

D/P ee lened ecb BF es cacadd

Fo ZL: Laff ib id ae ee
= Le bob

Lees 2) os Meiol iactees Io cd Line ho TE Se ee

Lud 7, fae ee AL wa aalan a Oar ee ve hs
ww be. Olinlieds St jus a bol ies
mop ollie LA td Le Mitrastls L a ee

J bates
tdeavde by ae Lee 9D Cetera tv-

.

ae

I &
“7 = ML» led oe ifm t/Cizl i ee ere
Le : hes even) 1 EL go ee aa

a et ee, Ee. 0 oo ee ee, Le 2° be be fa.
: eae oo Lax alin A ily ah “EL 7 |
ik oe Bes ‘neha? ik Lo pirates fesse é Ls a = 5 foe Coe en

cps Ste Pee te Ze Are nyt
ae te [Se A Gee od Tf 7 2 oo Ot fey A >
3 Soy a ge Le ao

Sali D- Pee af2 i Ces 77 Chica) a Li tng 6 ee

OG o :
tortd Yne Ane 2 br with Lee) Ci 2LL y

a

onto Cited ww ie “Clee ‘of Se es Ane ae

“

ue : i a5
et dine lesanLine) fie £9:

we

heath eal Sa ae een g oe Z
see ioge te A Ne ee! a Pee ey eee a

Aiseh


LE eee: hai ba got ris ies
tf aes

One
ie es
ne on eevocue ee ok oe fk 2

Lace ae wae tei A

pS
ead: of 7 ae :

ie lea

. =} =

Pe

oe
Lhe’ ee
<—

se pakke: cate

ee hie. ites /ten):

~
ek

eos

eo”

PERS
Ze ee
¥

2 ahead SS, ee ty feteee

. oo,

Ss .—™

po

oe

te<5
NS

‘Lead poe

: as cb ok
ee rh é
itt iifev Cur0 Aa

ee »
ae

a gee L

Fad

53 fg ,
i Llt.d bt pied Pd.

Soe é £ a
. = 3 4
ete f J ctte. b & f20)

<- =
4

- Ui
Goa, 2
Atéecrely ee
a a
f

ge x
fp oe
ie bea: ve s

2 y

Tid Celiclet21210.400

oe sh

ZY
>,
ee /

of at Lhe a ttc
P ww " , =:

aud 3 vist rile hi

4 j

AEN Ome em Ae anaes

; oe Lee

seein

fio ee

te eee nnn mc

roe) ae at0d

po eo

he uth; eee oF
tu ard

Ge ‘ @ Wx

oa sane oe a We
ma! ’, oe Hacke Mlhiaine a lil. eee aoe

x ue fudty th L200 ages tht @

ee Ae tle lee
Ss Z,

te feast
ber rid t

on
Au Lay “G6 Cbed HOt han

ye Leto. to

ee aha
se “fd

Qrieenl>

fod Me ta be hades

ef ee LS es
: Wf 4 : a
fn Gelinas CS, Cid. bo ae ws Coed TL Gels Vee

cA
a
wth cho an ects fsetw) hho Velo

as Ne tha ww lecoit tr

‘ry ee a

es EVAL ho Based

1 y owe: a . a ded I.
ea aoe

yay ue

oF

oe se Ade ea
nee ~~ : ss ise bl 4

ee
Ze

ee
a ne

ae

Mae b ste

Coes

aay ae

a5, Geid whistle oo. Ly, Litas ae
free Le, Be: Casied , ah saul fair, Di

Z, 1D enuco th ae Lee a

a cae 6 wa Ceesd Ba

“v A

le

Cee fe 3 ife :

Ao Ate) are ceerersaliow ee
j Va C oe
? hud A eee gies t.
f . = oe ~ z Ca : /
(Previfer :

jee tacts ics a
Uh ee

ees OlD

ee Ce

Deol age SS
Lewd a oe

; aes) Feng, eave Ankae pila

£7"
ap :

crcl usd oe


ROBIN (Slave) Hanged 9-/3 S7BF

"173y-Robin, slave of William Taliaferro, burned dwellin
of Thomas Royston = hung." COLONIAL CAROLINE, A HISTORY
OF CAROLINE COUNTY, VIRGINIA, by T. E. Campbell: Rich-
mond: Dietz Press, Ince, 195i, page 333.

t.,eIn Caroline, the magistrates tried and ordered the
sheriff to hang Robin, a slave of Capt. William Talia®
ferro, for breaking into the dwelling house of Thomas
Royston." Same, page Ze

Case found 1 Carvline Coumfy Order book (1732-1790)
page (56. Crime wes burglary iy house of Tiros
Kasten. Vo wwtation of MS0/7- hobins value X45 -«

5 SORE SSB

vY a Pa 3 is
ee eae afarein Ce; hay fitacteun er + bP iad ad 8d acral Miatdted lke CL. alee aire

fe id < ae * * od Ld
Cece Coat ae Cyzy> Eo  Paetea tse ye ee tetera Le wera ri ‘
‘ ~; - ? € g ” y Sy “i é ,
oo ; eee a 5 Aten dey? CLA fetecd %. tae - WET ein OCtteete wie ceitn OCLS
< a -
“4 Se een Pai. « soit . bes o— ’ chtgebicssoe S Z. Sf
se Z ae, : ae ms iS in
{ pctelitaed <f- Ce hee ene teu > ee Cia etsy Le OR OKT t fc tee. none, rs cdo as fhe CGriaict Sf
: fis : v . “ ry 7 L é - ‘ 2 i
; allie wf gh 7 he a meee
secant Ee. fim Che ty PD sega lw. See: eae OO te, MO ay” Cl £62 0 aay
fa “i > ¢ "ge Rea =!
p y 2402 Lope oo £ fas cane
etecacde tf Rpt, 9 Chet Ze at {Gries A Cree becca shawn CL fire ala ra
3 Pe of - / G J
3 . ara : , 6 ee geal gh 5 . Sate
CO, 4 pay ny feria? rigs delete Cre av ear Cae, 6 Maly = wail EX 2, ¥eo>
ae Sf, 7 7
— ‘, pfs . 4 * vu | ae i t oe:
sawing ter, Ceretfeccla FF tea Leer kg, HMA CE ee Cree-D. fa “tars Creer SV ete cc] w
BE sg i oh €.. ha v 7

fs 3 Pa

aed secatoe ea ott eo xe _ Om
FO eee ted Hie CML wed Wsekigciviys fee Cleena L6°T4e

7 bee coe of Cie

_Jiraainni %
* ? . - . '~
_ ee ate 7 aoe ~ ‘ - Pe ‘ foe ?
lr? ittanw Cre Pee) 7) te tte Orecere “ead id C6 t4 < Vel cnt Loe htewd tte lesa Se Fae
# ‘ F Pa u ae 4
. Ne ORS é oe : “2 Si he ip ete fie! scbetienni is %
Fa ee 2 Cite (44, Creve ltten Bet cl Creati OOD yc PAE DS tal CLE Stet, Cis Had SCE = ;
. vw Vv i oe a : - Nia! ¥
se - ~~— = hae Py» - Oe GAD
Meat AOR 604 C000 Oud Chite PP Cht«t, [ictoeen. bobo Le “et Oe as
-
ee 7h io Ps, Z : i
eS aaa ; : Merete, Rite A facuct oe . a ses
: -
Seteroed s . SL 2 a we : : : -
és neat : Vefse af aoe Ct« Ytred, , cee mee ae ew Tl
: , i
got ee
. OV ween . :
2 bol
of fo * :
J OV Lee * # PoE ge vene ls . oa a
, “
ne a "
e ae -

ee . 1 colin
S i : Py ‘ AKGfee # (fecdivees z
an . ‘ ae ee os a Ae pats
Hl wig Lrw Cece ut Litd £57 er Cine Ties teewin eet taf We
~y ? é : .
oat a ft —— a apn: 4 OE Sees - aS oe A s 4 *
wipe). Ltae bee -Saytcatenrw li eel C%E Seat LEcCe: te Me Le ORES Le Ohad ecan 404 iB Cle
& A y y | : : * ;
; 2 2 ? . - igs
ee eae, : . oo Soe ay ‘
“st. ChE peer ay? gL sgvets Conne he as wh 450) er an) fees A 2a ee
e c ; ra
* ais — ah me
424 fcr Chea @ (tea seca le Che Frit. > a me a a FL Gt bane hy. (4 ak ae cece le
4 é
é - Se 7 a
i dofne Che Be feng Leen b we Ch: é Lect Phe Lith eet, bh tec Dee Sed Cling ohngcth
Pe a / y ; Zz ; f. p oA
“ Pe a: my De. Pah at 2 ea ae, 7 pe Pe
Paneeae aes B41 cee gig S Cs 0269 POCOCCL4 “, hie OT cu Oy Meter ae’ ceed ae, Afegard 420 0.40>
, 4 ¢ !
& od °
tihtaewcepintoenit ae _ a” i
tse tice eae. a ae cee iy 2x¢ he Wine r ae Y- Le F6 bd GCF eo ts oP OL Corn (nae Le Me Seok
vi Groce é CG’

$C Pe rte

? a , . ” + ~ 3
: eg af BPE 5g ke : =
thé asc” Ane, eter ascnueun te, os ote tery C4466 CLE Wace £68: kt Geaily as

,

Tiemann
5 f tee a d
“ pthleg <0. Cees B, oe CtLicceces ed) OS or ale EeBue, wa aoe eager, apy Mev etl
no f Ue?
oe ¢ 4 i e g

~ abet tea Cle or cemarétdn Ae slay, Le Fiag ote Aenea Meek ne WO per? Jrpoedd Je \ dat semdini
: i 2

ad 6 Mais . Pere ({" - ¥ ° ares y we aes gt my : i
peat Bates "Aa CO ate Pet Cee areas § fa Le cat Pog, Clue OK Cet sista, 20 feo
é / af

y, 2

2

“atyrcel ox Clay CF ped y leew, COM! Adiga t avak AN CAA Cte LRAT EXs acd fOr:
it I 4S ee heh ,

a vt eet 2 spiced Fo ae ee
fivuaw® fa Chan eeeté peerlee pe te Clrad® ME CHRD OR be tegncic in Me 2 oe ey Oe Ee eer
7 . 7

r ‘ A
Fe 3 bd Z r Dg

p - - iv a . ape, ADP ce eee Rene cot cag sepsiig

Stents FS Leta (CG tew Meer Che 6 acd COT eu, pr 4 OMe OS Chor Cen ws, Owe VE Var,

a oe ef eee a ee => Lipeagllictaicnt igh atin od a eg Sant 5 lh sass 4 sui ale ua 2 Y

La AE: S Hae t& wee Chica Bas tate, Cétietee Clix Se gced ore Claw: bea, Gina SS

Sete) >
Pa (

—" LA 2. * - a
= : ty ie ’ fe) kaa ati ps, Soar
Meat tee che iy Circe if roo 4c ene; C0 Che tctual rhe OR tg enlenes Ou Cflcce =

é - ‘ :
 ubtie a Le ts 2 peer v hee. = Chet ceut <0 Lo fGen -
a, a ae a can po. - ts F
Peitew Ee Llp Cd Mes. ec an Cora trte Yar Chet feat Maen, C4 GS bored a wee oe

; Pp “ errr ¢ 7

ST tes pee I ad > 2 a CLL +> ?° 3 @e of om
fae fo Le fice ra pie tae Chis €200 Sl eEC aces E ee ee ;

all c. or : f ,
7 fa Z pore Pt iw o A os. ree # # F
C4 KM aMAeans ta CLO elirved LErt tow, t Che dad Wet Ps eee ‘ee so cei uke tern ke es
« 4 7
y
v

a
>, > oo
Clete @ Ceram.

F, Olen a. O pee

ships dato 2 : or ff.
recs (ees tu Tie CD Cte 8 Keiaics A402, aE ie 6

: f 4 #- 7 Carey Fo
1 acl lace Mie 2 E03

eT tae a ay tp

he “ 7 ys a bee rot I. a. a CLeD Cleat 0G Liat oheu

: + f af 2 oe tf y, es ani - dW,

Cat CLemaasd 07a Les Or Loew -E we SOe 4 9ACKAd Valuak tla OTN of % PF $9 tela Tok ate 467.
- a

rs ; Ed
= et fi. Soak . fe : — yf. = ieee cores, pall
Tez bac hind la Ls ns FL CC... Vinee tute he A caterer HAL Cae CP eAMS Ct hese. » Che

a ~, ¥: °
Sta “ened AG fice of Ca MOD oA oe te Loe an Ze fae DLO LE ened.
se” Y te Tb ps of E <5 >

* Witele Cw KOCK t11dad, of ta (a7 ae in f aad, Clerean BUTE Ceedar * terre ev, he flew etn KF
> =. oa icp. . .< mors af “ . 7 - - ae ¢ _ ‘ -*

wie, A Mat Tia td Celevdecy- = “ Spee é fete lor: Coe bietce ra ons. co ORS Hice oa -C CCS:

r 2 & -
tel” ore LE :

Cha “hn Ved Chr 626%

2 : sli nee pin seg ET + ak
Miveser. oe ar ee Cove. oe ya Cb tie Cen es LEO Cice rad s€ar >


SOM AAAI? tat lead taane SEs bees LT 0

eS a ae 8 cw ro a Lh

Perey me ube. AOLES
ay a 1 oar 7 ae rs paghtas gion ae
Die tihate, Cua CAL wade s Clue

- ‘ten Faea

,

ee ee ] yee ae:

vY

Gotu ye Woke, we

fire

i. F eT ete .
al eee eto a everd Meet tw Cre q

7 ;
Ore ear LAY t4

wo «

Grrre otk a

Lawee la,

AEALE COM

ce Ce: ake

+

hes cee #

g
ne

A

teed De® dew E49

, 4
ia oo ae SET

‘4 g
fi
Lat te

, or
bata

Lee Zz.
GAAD fads dr At ndeerd Lhy
we:

oe
i a ero” fi ving
Z : y 2.
me tcl, Daw Mk, VY funds Cee a fhe Ae te fenm fiw}
v4

ten, ete if jl. ri “tl tines a6 “eon orn
pe had y hts
enc’ de a G meta Vil tee SCA ee ya (Ling PUL Ff
oo
‘ ae cot AS Ma rae tA
~

Crew. 15 Cn

bias wna Ming At Ga

’

Chat ia oe aes

--4— Ya al
pipe meee 4a 4

oe y =
Mila GC Ms««4 Pee La

Mtr x

a
ws Fs
fC Rte Cae IO ee ad Daiee. * ole

4
Lona

‘ =~
A tee

Meares +

,
erat

”

en Z S. PALDAPLYO a

“

2 edt Ary heqaéee 6 Ctaad fired

"

?
s Crore BA AAtAAN, CA MM
Y

pe ape pif a is ‘
Mead gat cule ee te Hedeanerr.d :

we

ra
THe connor O1VF1 £8

“itr iltese phar

~

na 2-9,

cole ge gat aKacrasgedasd nna 1a
u

?

fi ferte ce Gee Cha
a Jt e
, 9 a

J.
Maat aL

taal

r
se

pet
we

Ci b Willows “f aylive ee, peed leenahiawns a. ow wes ceetisd
% ;
y

Crud He tornwd?, teat
- 4
had. ve (ay des fe;

ak GOL ro sae cutee dr Arar HA CA a
fo gil cute Me gg ew IE Pes C108 Clee aver? jo thes P02 poi bad
ao”
FEmeces ae are,

Le. RAG ae of bar oiteae yi

cH Crue Poe aed MOS o- Qe re wero, anes

2) Mivaecen ender ae pen:

Crd z2er.0 ro AP

Cor reed

a
rd

- gee a one
LOD Hi ile VM Sar Zea cirri MOereCl tre

Se
AGE

ste

SC aia

Clts1e fd ALAM AAAC DF
wi

tif Las eG LI 4a 426, wa Cfiaulaa HAL
é f ref
warts L1ne ts Athhee a

sf
tin, Cpt
heore ror

es

ee
Pie oe

Pt ee plkiniks

he Jada. ory evtea pnd wad S

ad a cvealae we hts ease ceded,

WE see aa ee US

2

Lie Oo

“4.0 Che Gee encte ee Ccianilts oF (rte Cry facets YW

— YY
/ laidcuss? Mar tueDe co seven Ltn? re
ved Cereiiny oe ee,

wa hein ‘
AL

? H

- ae JZ.
hig Ore is a+, wet oe on, fludie tan O feba t® fo ee cleo

a “fea ft tts

a
oh ¢ ar | Hea? Che

J
ED iAAn

3 Fo
Cele
*£ etaae cecas ® sa“ has ga, torts

Sys

Le
Cate has A

oe

! fea we f

Mize 402 YG 4her2e
tine ie Llazs: ee 4eae

haere POS. org is sa

2 gm oe Poe “F “ laeal oF eles fori nu cbt Socbiuss gence APES 7 Hew tad cf Lary fry :

Leah Dk Jcete, Cud by alu CO ness Ae Wee L509) PO marsias ten

‘ cha qgatZ ‘dieaa® ee

g

fEplri saw pa ee Mev

whe We Ory

ee tAA auntand fac Pan

es au wre 4y
i

Mabe

|

=
aa

ZL Pi pene es Cha aire

fae AG 4444707 t

£ ites 14

if iia eo : a
“Setesstuilu Sltetutt. 4
a ¥ ; ° ta
YeveaZen ha Aber,

Pi ~
ryperiee
A

¢

feDhor Cle frweed C24 vt pielbrun a acne Prnf zis fA
7

, # °
fea wes SDN As Ctr

A Oy eg oo
fern cutiiunt7eoO Ca

: Meets aies # ftv fice. feveng ai afsaute yA sare be Aa ;

jd. at ea Y Geran, Aefrtrte ZL dai
* : ee
Ce «fac ba pratt 1 CatGay- tee eae oe ek ow
Vee _ Claws cate aes Psi Oe LIE ro) ‘Ta Clo : ye nage A Jou *

rh a Billie Ke. head

|
|
|
t

, ee
FoF i 4 FO4.

Cie
a thee é. é ay her? Mtns

ih

SC iti San °

ee oar) eer ote,"

Gael afer Liar rar ads

a a omy | She es >, iis

tee)

ete

-f-

give cant Ho actu asndv ete th AV aca hoe
nies wey haa wile ahete
é va “7 oth
Ara tthe Ae an “fo 6 fay or
pian yh ae Oe od yi, a wet.
i et, ea Sb bee ‘Scupr > Straten “J (OMAN AU Lord

_f
Pe eI an sll ee aren
. =

lo “x weit er

5

7 VO ecataccean LOI
> a Jase ) Spee é€ Pay ee» Cees $ lead Clu a, 4 ea Jere, ‘Cltfeed 4

G _ oe

grt Che “s iaiaian Ca i

Lead aa fe P LC- PE nites eats darn? Tre mene cles ths eri

o :
ay es OnFiry oe i, gow Frwcve eke bia wet (VLE Mena atin co Lg OG ‘
Zia ee out ha Carire ede LZ ra \ fp kta ZH.
,

— Z

pra, wie” lhe aE “ute, ee aor A aoe ead Clune le AO Hore 10, ene MO — Clad , an hoe Ka

AOTLE Lie “ter
9d
iba MeL “

(ha

Clivt a

“4

me:

“rere ae fee GO-

yA

che 4 ea Yee v, Ob jeede S010 Coes

9 a
vEare Fee

Ve 4
EO ftea,

2 berry york ‘cru ty

(44

Ue
ttleo

a

a
r Jltw «|

ea

flemice

AB
a Se

beindcct. Hes cearean "4a
> 2
Ze

PA
ALD (bO8 bP

LO” au. Adv) C4 D CZ Aa he
ay a
Vv

"I , a
CAL {C1094 wr fF
7 ¢

4

a

7A ‘ la heath

fe

“f 4
. S07 & ¢

OT os reels

FP 4eer, eee? THh42 slaves

fo
op ap. eae

Ulcer 227. CLS. Lees tien Clttan Cte Hire 4

f -

5 esthe Mecsas seed , eee ae Cac? ¢
lame ne the wth CorP

y che tiaae thea “fg if the Kudlow

ry fas a.

i we
sof

steel

ia Vek EL Chtaa
VV
hi

- 2
EZ LOY Fé tes aah or? whe he a tee ten

= ne a
ol (leur CK Out “fn

4.
”

,
- JS De ;
Fearn, aetulil Co’ Oe Ctr ad £

Lali rex oe

MOOK


s * : :

- 7 . a * a f tioghaoewe a &
Cececacigs Cole Hae. Gea. Cea pe LIOR < orate. oe SI. hecden eu fa hae

GL 44 neZ.
U
ge fe ot i wis Eile jen wate? = yee OC Cie actn
feo (Pana. a fever eaZ ee ae

- : BE
so or wae f -
CLA a ha tees. he tcbileee Zk ccna LE seent bate oe
oi

A a -
bal Lhe MttA 0d whe self > oe
cy be .
i Ry Cafe ent thes

t+

° Ene Aas ceed fied eon At heat Coe

(ace Oto Ok

of He “ fens fuser? Bk Lemant
f,

2

M47 Ae ER oe tae aevatirins Lhe a jloeTe %s Catiiey hhh dhe tin ne an 1 oa 4

2 | , st . é

fo “ee hs regres #*

C42 Ci Ito AL A LAI Dake sra “<<
é

La ree

oo oY cl fae ~ of Pc bod Oia

as
Aang: ‘ore

a

“a a "Le tees) ne Cle Clay Ertan

7

Cal Of Momsre cg ey an ee
——- £7 ee an” @ fee arsine Lo HE rthe

ibe: baad wae = it Pf PO, ae Cre pho a tn ence dinvndide en ey tia.

Pe Z pe

lace Cnn £5 ae i ie = Lf re fC pg Pe ee cle

a4 Lear “eg nz, Z <A 7 el amen saan

é : a
Z g

Cit eer le tel (a Baril

tinotl oe
dru it iste

vo

ae) ‘ig . -
1h lies Cl teu oe mer > “77042 tty

fie “4 :

4 .
I LLG AAAALD

t

ge — .

Citak Arr
a

é YA "
ae ee oe aol agetosie e eo
° "Wt Anne C444. Ly Vo AAALL r és Co 24 Chew Cutins (i Cemtnee

‘4

4 "a a. pe A a eal -
(Glttin® has CHA fT lag ae i. ft aoe 4 Cat Cirtn CaaD So? Lhek leant

i

jo”

al .
© he

Be efit, is s —
é Ata f F a a

¢t

Ceara ee

on Ge
g

” Py
—_ J.
oeL th, “ates ca

Va
S70

r

Cta4

a

fon Fm
Gate. Clifee (aaa)

Cc:

i; y, pane ey, P
fe FO a2 | ee Chic feces <7, ste
f ; ‘ U &

4

4OTRAMA Ctaat «ve paren Ahead £4

, Y

v4 —

«et AD EF

a 2

tae, McD Cad ae se

ga
< Z

——6

tang 2 Cte ger

wZ5>
¢g

arr e
7
Mint Maw OF tan

Fp,

GaG “as the Co tha

44 LOW

*

CA ab tee td Cli Ateer eto; COrad

ae
Lo -

Mer?

yew

a
~~ 2 __£.
22% ae) Cia Fe ay

ecfec f Lae LP
r LS if ft

iy yor Gu % Titel te 4 «£ ees it:

poe ¢ & ¢
- a Ge
Brae 9 wa aa - 8 A too =
“ Pc . il 4 « _ ~~ pe

Sud” Clea CO CO uagnw ll” tw A Crear
j pear uae Z

sg : fo. oe Z é fe

5 He foe ea4et C40 moa Cire, elOLrea MW . vor PA ta? Ga C44 rere, pr

eR LS on

A n
nga os Sb ay fried, he ZL fsetasetan Aan per

v
CvtZ~ Cri tum co OCA ~
4 ™
4 <

Pr. _—— ‘ Carga.
Cesc ed yobs ftowes yes lovee Ce CLO?
i A L
LOG 07 b table? Ohce Z

;
= ae ety.” fn *
fFo Oe Li Mes Co is

thyteea lf?

of
altee-

| on
TE Ge 2:

, : :
bw ys J ~ Gg es
Kae OM elie. Vina Cece OG er? den MaKe itanonll sie)

se
Ol
yy, fa, SOO EES yo
GP) dha Cee ldinn
NY

2 ; a - Cd ON
. : Bat Sp te
: Cries Sr akebZA~ “Ff C% PTAA, u: ea Lhe Hen yj Ket }
a -

Fs hee Re. -
mS ois aoe eee wifes: Sifkg
VLIFIT TOE ITE C48. YE OL

-

Pr
Ya c ct ae

Se “Ga
ident an feet Cue C:;
Ga Heidt WO incaharcia AC ED. LA

he Hae . Malan Atanas 41%

ad 7~ -
the Wx pias

Liv
a . -
we tte” Cas i aed ty Cbbians ji tbada bia: Hebets can pe foo | anet Ota,

F
© Morten. (take | Ay

— CP — - “- CY eek

L
a A so £2 fC
Gres Aana a ate OT aa Cbnia tian, & “<—" ao

” .

Pa
Flaws, Chen # Ge fC er i nomatnone

&
i ss
p fen aes Fe halts & ~; Befans asa Gé“ & Mis i is “fe sa i P Linnie er Ke mcs nate

4
ED MF a ances tele fra tas . Ca Otek,

ain
MAa! Lae kod 2 yore, a Clow << Rote
a4
Pf

oni E+
Gort aT Cha
~

4 LZ, A
ey (eK a La PtscuaD

¢g M :
¢ "te AAO Ae i * Bhi” Cork (a ee tay Re “Lege:
4

gies < gees, Aca Selman: 2 On , kar tee dew
é » @¢ Y ¢ ww
fhe? 5 Fig Pane ~

CML 1 aed 7 SE TT 27) laae COAL mam

‘a, Loved Feat y, oe Cited Lue.’

~~

~
CC. ha 5 ase ee ee

ae oe es yee a ree fae *

i low rhe

tA

hans

ree '

f
oY

Ligh. oa * S /
ant ed lecinua hey flak lOr fber < fan li ew (~a04 ayer lise
. 4
Miia ~ hire feted; Rar
aa ~
oe ‘ <o ap f . : -
sltttae MY La 4 te ef pathy Chanm hero aestre ata

Lert Manst se, shine Cd 20 Creat
Aes Lye neas wens qeenlZy Ole famarse oe “Le

a
Se . _s~—- o « ° gt
Le has Chg Merw oo Chin Had betta. fa ard LO snc satin
Bin oS these gate Pememe B fat ee hie, dg cneen ot ta vow a Sf Gee ha la

=} ¢ s
Hee i, Seem
AC Ae tercean hart ie fae F Coat

g Pia

ae Cia

”

Caractere tee aR FP et Sg

4 haw Pa er fJltaa2 & Comm

s a . J rr
a eee8 Gaad apace ott firmer a.% oa? Si Coeu. tanwuasrent 1A ; Mleusore, roe ee |
ra
4

Nn RMLavnntan ie TAA
: tHe

,
aa, oe en}
¢ f

Meivrcieinanasembla “LD pinky 20s SE of he La? fitwmse Le V or pet Cw
é Y.

i / ae :
Pare] Sftanst Mees fs Bg hi CO Pana, '
4 — i ae

bb

ties

Sneaghis

Oka e "hlae Nana cores £44

4 a, J» _ an
Mer Oh La =? Cae

t
sr?

AA

———»,

Lam

V a3*

fe a 5 a- pt : .
Lew (4 [ele re ew M4a to Cre,
'

O
id i? of Bid liad

-

rs ee adel

¢
as
he

Veck ar’
t oe lod * 4 -
ff
4 C Edt fn i
i Uda dt tC OF


°

seoenl

A HORRIBLE HANGING,

Rope Broke, and Wise County
' Negro Strangled to
Death.

: : e

HIG MONE GAP, VA., August 1.—(8pe-
wlald-Atl Wine tr dav Geotaea KRobertacn,
colored, Wee hunwed fur the murder of
Tom Bates, hia brother-in-law, at Toma
Creek. " Three thousand people came to
town. on account of the henging., The
trap dropped at 10:11 but the rope broke
nnd Mherlf CGhutliiam had to wu lo w hear
by store for a hew one.

4% lL o'clock the negro was again led |
to the acaffold with blood pouring from
hie eare and mouth, tle wan ail) Gone
avlous, and.after belng returned to the
scaffold, said: “It tw awful to be hutcher-
ed in this way, but 1am going to heaven.”

The new rupe wan Anubled ta prevent
breaking, and, in cogeequenvce, the view
View's neck wan not hen. le died of
strangulation, Ile wae nok pronounced
Gend Until thirty Ave minutos had panned,

Wher Arwt On Sthe memMetad Patron tacns
made a talk, admitting the murder and
auying that he hud been a Ureperale
man, Mile courage, which had forsaken

him after hin sentence, returned to bin
Sry ihe dat Nene

Miehard Foy, colored, tha” murderer of
Dayton Miller, wan reprieved by the Qov-
ernor until the 20th of August, when he
will hang unless further clemency be
shown bitin, :

A third negro tu Jail awatting trint,
thinking that thera would be w double

hanging today, ment the fudge wid that
he wiahed to tana with Moy wed Warde
mon,


Cecabareg. Va, 4/9/1860 - -7 age

auged Hrs. Ths Weorning :

a rate ae ko Logi
Prev We pad 07 b ahlrele ¥ Condueley
Lo hs Leary ld . poy iy. sg
Gating IPOS:

Paha al |

Katainh Neuer Oba ¥//¢/ Ke

ROBINSON, George (ROBERTSON), black, hanged Wise CH, Va., 8-1-1902.

"tt HORRIBLE HANGING: ROBE BROKE AND WISE COUNTY NEGRO STRANGLED TO
DEATH: Big Stone Gap, Va., Aug. 1. - (Special) - At Wise to-day,

Georee Robertson, colored, was hanged for the murder of Tom Bates,

, his brother-in-law, at Toms Creek, Three thousand veople came to
town on account of the hanging. The trap dropped at 10:11 but the
rope broke and Sheriff Guilliam had to so to a nearby store for a
new one,
"at 11 ltclock the negro was again led to the scaffold with blood
pouring from his ears snd mouth. He was still conscious and after
peing returned to the scaffold, said: ‘It is awful to be butchered
in this wav, but I am going to Heaven.’

"Me new rope was doubled to prevent breaking, and in consequence
the victim's neck was not broken. He died of strangulation , He was REE
not pronounced déad until ¥KXKK¥ASAR 35 minutes had passed.

"When first on the scaffold Robertson made a talk, admatting the murder
and saying that he had been a desperate man. His courage, which had for-
saken him after his sentence, returned to him in his last hour.
"Richard Foy, colored, the murderer af Dayton Miller, was reprieved

by the Governor until the 29h of August, when he will hang

unless further clemency is shown him.

"a third negro in jail awaiting trial, thing that there would be a
double hanging to-day, sent the judge word that he wished to hang
with Foy and Robertsob," DISPATCH, Richmand, VA, 8-2-1902 (p. 1.)


A IA filers CarcscSy oss kK

i

Sade Ae ed ae aa  Bchormun att LEZ Y

ce Macy LOM be s3e, [Bek THe ene ku wnd ae O fiie pang OMS fe LY tp teem —
(0 7au4A fbkon a ek. LrLerus fo - t vg Taxy Com , (er eae ee
Suade & lane fas han. hh hte? ae Foe C2 Lf? 68s ee SOO
day Sifplieanl- (PZ, Frere Dear ony Aneel bbe t I isc:

ae /
ee aaa he. FG edb gy nPicdh
fl" Va Iicekcs Ze

Ly Pk | eae Be O20 i
aoe Meee z AT ibe. Gree p aad 2 nd

7 co an KE Sag

.


ROBINSON, Jim and WHITE, Benjamin, blacks, hanged at Manassas, Va.,qn
April 27, 189.

"TWO NECKS BROKEN: BEN WHITE AND JIM ROBINSON HANCED AT MANASSAS:

Alexandria, Va., April 27. - Ben White and Jim Robinson, both colored,

were hanged in the jail yard st Manassas at 7:32 o'clock this morning
for criminally assaulting two white women near Manassas late on the

night of the 13th of last January. The two men, who had been confined
in jail in this city since their conviction, were taken to Manassas
Wednesday night and kept in jail there till this morning. They slept

but little last night and spent most of their time on the floor of
their cell under their cots. This morning they ate no breakfast,

and, after prayer in their cell, walked with firm steps to the

gallows in the vard., A force of twenty deputies, armed with guns,

was present, but no disorder occurred. The hanging was witnessed by

about 50 persons. On the scaffold after the knots hed been adjusted

they esked to be given a few moments tn pray,and, while engaged in

prayer, the drop fell, The necks of both men were broken and life

was pronounced extinct by the doctors in eight minutes,"

THE CONSTITUTION, Atlanta, Georgia, l|-28-189) (1:7)


ep

Portsmouth Peo

Sa tiaveesetow ”

e€

e) Tra ee oe a
POS Sh age pes

Most Portsmouth N ,

eigen

‘

on

y

‘

[ote NB

“

MONDAY, APRIL 9, 19

, =

RGINIA

| ao

PORTSMOUTH,

pay N EEL NI rea ar:
oe" sa. ae
SEA

nn hooe ” en ; i ' seni = .

c+ —

th}

en Deai

Draper and De-

the d

f. Hustings: tg receive

¥

by Deputy. Sh: riff C.

P. Brockwell on his way to the Court o

iv

nG

(Staff Photo by Oliver )iisi

SO
is shown flanked

Im

Rob

” Robinson

“Cocky Joe

tective A.

MEMBER ASSOCIATED PRESS

}
|

Pa
K 4
4 ,
‘ ae Y 5 > ‘ ‘ -


Le

(YR T er Try h Me WT: ] 1 1 CF ya
RUBINOUN, yonn Henry, black, hanged Bowlin g Green, Va.

May jo a 1878.

ROBINSON, John Henry
(Possibly William Henry. ROBINSON)
John Henry Robinson was hanged at Bowling Green, Va
- on May 31, 1878, for the mrder of Eliza Roy ike had
- refused to marry him, He was. visited by: three of her
brothers to whom he expressed the deepest regrets and
asked for forgiveness. The scaffold was erected in a
eae eed passing directly through the middle of
ete sa suai. exectuion was witnessed by not more

NATIONAL POLICE GAZETTE, June 8, 1878 (10)
"Hay 31-The execution of Wm. H. Robinson:
° colored, f
murder of Eliza Ray, colored, 2 years since, Sock’ place ‘at
Bowling Green today in the presence of 00 persons, The

ome fh’

. pr WILE ACMOASSAGCEG AES RCAYHEFYS FO BEWaPre—o a
-_and adhere to the teachings of their parents, He acknow-
leged he committed the deed for which he was to suffer and
“said he was prepared to meet God.” “ft 12-0 clock the cap
_was drawn over his face, and the unfortunate man was _
launched into eternity. He died easily, his neck beingbro-
_ -ken~-by~-the-faii,"'-COURIER_JOURNAL,, Louisvitie, KY, June,

1878 (1:h.) :

A Sanguinary Lover's Execution.
eee Oe: | Bow.1vo Gargn, Va., May 31.—This morning a a
John Henry Robinson was hanged for the mur- Ix

ea.
dér of Eliza Roy, who had refused to marry him. 7s ra /
He was visited by three of the brothers of Eliza, H Flheou ol 420.

to whom he expressed the deepest: regret and . ¥ nee
ed their forgiveness. The scaffold was lies 7 OA pLht

erected in the centre of a large hallway passing |e Z, 7 f :
directly through the middle of the jail building. AH ren Lf, /& i
Not more than four hundred persons witneseed

the execution.

j
,
2)
oe
ah

sone 7% rss ial

‘Cour "Assigns ©
Lawyert to Man

J oseph Robinson Held a
\On Various ape
in Portsmouth -

t - Joseph Robinson, ieee “Cocky
Joe,” Negro,. waived trial by jury
- yesterday in the Portsmouth Court
jof Hustings on a charge of murder,
two charges of armed robbery and
jone charge of felonious assault.

are

ree e

iby Judge Floyd .E. Kellam, of the
| Portsmouth Circuit Court, presid-
ing for Judge Lawrence W. l’Anson,

‘|}whether he.pleaded guilty, or not.

{A directed plea of not. guilty was
entered and Attorney Leo P, Blair,
appointed by the court-to defend
|Robinson, submitted the cases
‘directly to the court. es

+ Another charge of maimmg that
‘stands against Robinson was con-
‘tinued generally on motion of Com-
monwealth’s Attorney J.’ Alden
Oast.

Evidence was - ‘heard ‘by | ‘Judge
Kellam after which the cases were
referred to the parole officer, for
jpre-sentence reports. °°
4 Robinson was tried yesterday on
jan indictment charging him with
ithe murder‘of Mare A, Terrell,
Negro, » manager. of the Capitol
Theater, 608 lffingham Street, on

.|May 11, 1943. .“ferrell mortally

wounded and robbed when he en-

‘tered the theater with a cash box.

‘ He also was tried for the robbery
| April 19, 1943, of Al Green, pro-
jprietor’ of a store at 201 Green
1Street; for the robbery of John

“\Campbell, Negro, and for a feloni-

‘ous, assault on Mrs.. Mary. Green,

‘also on the same date.

Margaret Fowler Barnes, Negro,
; was tried by the court recently on
| the same charges, She, like Robin-

hah ae

we ope:

“Robinson stood mute when asked}

= Se ai a meio et

gon, stood mute, but gave 4 rather
detailed account of their brief erlme
wave in Portsmouth. They were
brought back Jast month from New
York, ‘where ak ran pete of the!

law eae ig le a tals
iv ah oe i x :

RY Ae ee

Et re’

18—The Portsmouth ‘Stars: Tuesday: Merch 13, 1951

| Probation Officer’ $ Report t

Not until the probation officer
reports will decision as to the fate

-of Joseph Robinson, alias “Cocky
. Joe,” charged with the pistol slay-

’ ing of Marc A,.Terrell, Portsmouth

ORE NEG OTE Ee AE on coe ms

-of. the Capital Theater.

1943,
. &ro, :

Nexra theater manager, be re-
vealed by Judge Floyd E. Kellam,
who sat in Court of Hustings yes-
terday for Judge I’Anson, °
The slaying of . the manager
allegedly
eccurred May. 11,° 1943,- when he
entered the theater with. a cash
box.
The defendant also was~ tried
on two charges of armed robbery
and one charge of felonious as-
sault. These cases likewise were
referred to the probation. officer
for pre-sentence report. ‘
Robinson allegedly-: robbed — Al
Green,. also on the same date.’ ‘i
201 :Green street on April 19,
and. John Campbell, Ne-
and assaulted ‘Mrs. Mary
Green, also n the same date.
Another. charge of: maiming
against Robinson was’ continued
generally on motion, of Common-
wealth’s Attorney J. Alden Oast.
Robinson stood ‘mute when
asked by the court whether he
pleaded guilty or not to the mur-
der charge. A directed plea of
not. guilty was entered and At-
torney Leo P. Blair, appointed

by Judge Kellam to defend Rob-

inson, submitted the cases. di-
rectly to the court. eet
Tells of Crime Wave
Margaret Fowler Barnes, Ne-
gro, allegedly ‘Robinson's 'accom-
plice, Nacachleh ate 28, was tried _

- Holds Fe ate Of J oe. Robinson

the “court on the same charges.
She, like Robinson, stood mute,
but later on the witness stand
gave a detailed account of their

brief crime wave in Portsmouth.
They were brought back last
month from New York, where
they were sentenced for robbery.
They were extradited from prison
there to face trial here.

The Barnes woman. testified] -
she waited at the rear of the
Effingham street theater from 9
p.'m. until Terrell, the manager.|:
erilered and picked up the cash}:
box-at 10 p. m. She stated she
took the cash box from ‘him as}
Robinson threatened him with a
As she started out of .the]’

gun.
theater, she said she heard a shot]:
and saw the manager lying on}:
the floor.

She claimed  Woblasen fired
twice into the floor to clear away

the crowd blocking the. exit. She
told the court she ran down an
alley where she was later joined
by Robinson .and they walked|~
a long time and finally stopped! .
behind a one-story farme store.| ;
There, she said, Robinson broke
open the cash box, took out the
money and buried the box tn the}:
ground. Then they caught a trol-|’
ley to Norfolk, where. the pair}.
had breakfast and went to see aj,
movie until night, when they
caught a bus to New York.
They were arrested for robbery
oy New York authorities on May
11,.1944, later. found -guilty dur-}’

PO Ree CES SOE a
Sere ee

ing’ trial ‘and sentenced to prison.|'

Bae Soaks Seam


‘froomson Given -
Death In: lectric

Chair For M urder

By TOM FULGHAM
Joseph “Cocky Joe” Robinson, convicted of murdering
Mark A. Terrell, Negro theatre manager here, was sentenced
to death in the electric chair this morning by Judge F. E.
Kellam in the Court of Hustings, who was peeing for Judge
Lawrence W. T’Anson.
Robinson’s execution date was set for May 11, 1951.

- Before rendering his decision Judge Kellam told Robin-
son, “from the evidence presented here it is apparent that
you have a heart of steel.” Continuing the Judge declared,
“every unpunished murderer takes away some of the security
from every man’s life. You should pay the penalty.”

tence, Robinson was.also sentenced
to 10-years in the penitentiary
for the assault on Mrs. Mary
Green; life for the robbery of Al
Green’s store, and 30 years for the
robbery of John Campbell.
Attorney Leo P. Blair, appoint-
ed by the court to defend Robin-
son, stated that Robinson had
never had a chance in society.
As an illegitimate he was cast
adrift by society and that so-
ciety has played & part—a prom-
inent part in the predicament in

'his concluding plea, Blair asked

the court to “temper ras with
imercy.’” 4

7 tate

: Called Menace’

“This was as brutal a crime
as I have ever triedZ’ said J, Oast,
attorney for the Commonwealth.
“He is 2a menace to society and 28

mains free.” ~...'

Before passing pes diath: sen-
tence Judge Kellam asked the Ne-

in dejection mumbled so that it
was hardly audible, “I didn’t shoot
\him, ” referring to Terrell. The Ne-
‘gro also stated he was not guilty
‘of the charges of ropbing John
Campbell. He made no statement

on the charge of assaulting Mary
Green. io

Motion for a new trial was de-

nied, on the charges of. assault

and robbery, however, defense):

counsel was allowed a 60-day stay
of execution, if he wished to ap-
peal the: death: sentence to the!
Supreme Court of Virginia.

; It was hard. to. imagine what
-was in Robinson’s mind as he sat
‘in an almost empty courtroom
and listened to the charges made;
against him. Gone was his BITO-
gance and cocky attitude. -

a. Robinson “was convicted . and}

sentenced to death for the murder
of M. A. Terrell, whom he shot
as the. theatre manager entered
the theater on May 11, 1943, with
@ cash box. Robinson and his ac-
complice, Margaret Fowler Barnes,
made off with $700 and Terrell
died five days later. - >

_. Several weeks before Terrell
was robbed and killed, two per-
sons (later identified as Robin-
‘son and Barnes) entered Al

* In addition to the. deatir sen-}-

'which he now finds himself; Inj

potential killer aS long BS. he Ter :

aa

gro if he wanted to make a state-}.
ment. Robinson, with. head low}.

Green’s store on 1201 Green St.|
They drew guns, knocked Mrs. |


Wbdinson ~

, Continued from Page One

Green over the head, shot one
boy . and - made Se tara, Viole
$1,000, ° ne We oon *

Lieut. L C. Ellis sald the ue

Following an investigation he went

nied the charges.

In 1946 after careful investi-
gation Lieut. Ellis returned to
New York and ‘obtained signed
confessions ‘from Robinson ‘con-
cerning the Portsmouth crimes.

resented the Commonwealth.
Were Serving Time

Both of the fugitives were sServ-
ing time in New York for crimes
before they were extradited here.

Margaret Fowler . Barnes, 32,
was sentenced to three life terms
in prison for her seunensiania
in the crimes. : :

In addition to vobbing Green’s
store, John Campbell, Negro, tes-
tified that he walked into the store
while the robbery was taking
place and was robbed of $35.
Campbell testified Robinson said,
“I ought to kill you because I
know you.” Campbell said he had
known Robinson for many years
and had once played ball with
him. en : qn

Robinson ts also ane ‘in Nor-
folk on charges of murder, assault,
rape and robbery. The pair was
accused of killing John Clark, 45,
Negro, who was beaten with an
iron pipe and shot three times

der and robbery seemed to tie in.}.

to New York in 1944, where the}:
pair were being held by the New};
York authorities, but the pair de-|:

Robinson and = his accomplice!:
Barnes were returned here where}
legal proceedings were started by|'
Attorney J. Alden Oast, who rep-|

with a .32 caliber revolver. Ac-
cording to testimony Clarke al-|
legedly was beaten with the pipei
by Margaret Barnes before he was.
shot to death. |

W. Hodges Baker, clerk of the:
Court of Hustings, says that in
the 20 years that he has been
clerk of the court, he cannot re-
member when a person has receiv-
ed the death penalty and actually
executed.

On December 21, 1936, Richard
Polk was sentenced to die:in the
electric chair but before the exe-

muted to Hfe in uae by —
governor.

@
@

cution date his sentence was com-’


A ee So

ery

gst.

ee er er

=e

that a question raised by - Joseph

|murder, is not an issue within its jurisdiction. Robinson contended he
\was not found guilty of murder’ in Portsmouth’s Hustings Court before
|yeferral to a probation officer. ~

. But Judge M: Ray Doubles today
upheld’ a-motion of Assistant At-
torney. General Frederick T. Gray
to-strike the evidence on that is-
sue. ; p PIAS ete eee

other contention.that he was un-
lawfully imprisoned in the State
Penitentiary because he. was
brought to, Virginia without his
consent while serving a 15 to 40-

‘Robinson’s execution was stayed

|by Judge. Doubles late in Septem-

ber’ when counsel for Robinson
petitioned for a writ of habeas cor-
pus. eee tes eh

In a supplementary petition, Rob-
inson asked that his death sent-

cause the Portsmouth . Hustings
Court failed to find him guilty of
murder before referring him to a
probation officer. * ° aie Pers

Gray’s motion, which Doubles

dence presented by the petitioner's
attorneys be stricken on grounds
the matters proven were mostly
matters of error that could be
reached on appeal and could not
be determined on a writ of habeas
corpus in Hustings Court, Part II.

William T. Parker and L. P. Blair,
counsel’ for Robinsan, presented as
evidence records from the Ports-
mouth Court which they argued did
not show that Robinson was found
guilty before the judge ordered a
probation report. They contended
that under Virginia law a finding
of guilty must precede:an order

for a probation report. :

er

year sentence in New York on an}.
jarmed. robbery. conviction.

ence be set aside because he was }:
denied “due process of law” be-|,

sustained today, asked that evi-|

Robinson, sentenced to death for

set for hearing the unlawful im-
prisonment issue, ee a ats

Present in the court today .were
Judge Floyd Kellam and. Clerk Wil-
liam, Hodges Barker,- of the Ports-

“Norfolk-Virginian-Pilot, Tuesday, October 30, 1

BBO TINE LS LET

Ports mouth Death Sent en ee —
‘Upheld by Richmond Court

| “Richmond, Oct. 29 (PA Richmond court ruled, in effect, today

mouth Court.

yr ns PAE Scarce

Judge Doubles continued until a!
‘ljater hearing, however, ‘Robinson's

wee panei as, . ~ a « <p toe ts

District ¢3
_ FRE“SENTENCE REPORT

WAMEs dogeph Robinson, alias Cocky Joa, HATIVITY: Portemouth, Virginia
alias Leroy Jordm, alliage Leroy Jackson, : |
alias The Raven, alias Joseph Newby, alics
Joseph Williams, Joseph Laster
ADDRESS: 537 West Ue nd. street, New York City MARITAL STATUS: Single
SHE) take 6 ee nae HUMBER OF DEPENPANTS: None
RACE: Colored — OCCUPATION: Us. Se Amy
AGE: Thirty-nine — | oe, OFFENSES: lmrder, Robbery (2), Maiming
--. »/QGURT; Hustings Court for the city of Partanouth
DATE OF TREAL: March 12, 1951
2 TEDICTHENT: Murder of Ware A. Terrell, Robbery of A. Green, $525. 0. Ss Cey
Robbery of John Campbell £35.00 ‘. S. Ce, Maiuing of urs. A.
Green. et
TRIFD BYs Court
PLEA: Prisoner stood mute to each indictment and a plea of not guilty was
“entered for hin by the court.
SENT NCEs .The evidence was heard on each of the four indictments. ‘The
case was continued and referred to the probation officer for a
pre-sentence report as required by lay.
JUDG: Hon. Floyd FE. “ellan
COMONSWEALTH'S ATTORNEY: Ur. Je Alden Sast
DEFENSE ATTORNEY: kr. Leo Pe Blair, court appointed
OFPENSE s Although Rebineonts attorney had been over the various. charges with

him several times, the court explained in detail the nature of the
charges and possible punishnent for each instance vroa. arraigment.
The prisoner stood mute to each indictment and indicated in open
court his cesire to waive trial by jury and to ‘suimit his case to the
court. —

on april 19, 19b3, Margaret Fowler farnes and Joseph Robinson, alias,
"Cocky Joo", entered the grocery store of A. Green, at the corner of
Green end Griffin Streets at eight A. uM. with several other customers
and cought two bottles of beer and cigarettes. ‘They received change
for a £10.90 bill and went outside. Ten or fifteen winutes later
they returned. Joseph Robinson came in first with Vargaret close
behind hin. Joseph had two pistols in his hands end told everyone,


Joseph Robinson (Con't)

"This is a stick—up", Mergaret stood by the door with instructions
to let anyone in wh came un, but te let no one out. Margaret hed

& pistol also. Joseph told everyone to lie down on the floor, but
later changed this and ordered them to Lie dorm behind the counter,

fo passers-by would not notice anything aniss. There were about eight
people in the store. Robert ordered lr. A. Green to remove tis trou-
sers in which the noney was brought inte the store. lire Green had
not had tine to sort out this money or put it in the cash drawer.
“Bight hundred and twenty-five dollars was taken fran Mr. Green. The

other custcnere in the store were not robdeds but as custoners entered
the store they were robbed.

_ Jenn Campbell cane into the store during the robtery after Robinson

had assaulted Urs. Green and hed placed aluost evaryone in the ice box.
Campbell was ordered telind the counter and £35.00 was taken frou his
pocxete. He was tied up and Robingon cut the telephone wires, Robinson

tole Campoell tnt he, (Robinson) mew Campbell and he should in him.
- Campoell pleaded for his life.

Meanwiile ea bread truck helper opened the door but did not come all th
way in. Margaret ordered him in, and when he hesitated, she shot hin.
in the abdomen. He collapsed on the floor. This charge has not been
tried because of the absence of the complaining witnees, who is in

the armed forces, overseas.

The Grand Jury returned "a true vill" on the indictment charginz Robinson
and Margaret with maimins, tut he was not arraigned on this indictment.

Ydward Seupzon, colored, was not rodbed, witnersed the robbery of tr.
Ae Grsen and the essault on Hrs. Green. Turing the rebbery, Urs. Green
entered the store from their 1i ivi quarters on the rear of the store.
She had no idea anything wae wrong until she saw the guns in Robinson's

hands. She screamed when she could not cee her husband, and after
telling her to “shut up*, Robinson hit her over the head «ith ane of
hig pistols. Ehe was knocked doen, bleeding. Robinson put her in the
large walkein ice tox, and then sot the idea of putting all the others
in there too. This was cone.

Oliver Taylor, who wus present, was drinking a bottle of beer. He
witnessed everything until locked up in the "kce box. It was after
this that the bread boy wes shot, but those in the ice box heerd the
shot. Campbell was the only actual witness to the shootin: of the
oread boy by Margaret Fowler Barnes.

Eddie Collins, who operates a crfe across the street from a. Creen's
store on Green Street, testified that just before the robbery, Margaret
and Joseph cane into his cafe and bought coffee while they were waiting
for tr. Green to open the store, Eddie later went to Mr. Green's store
for cigareties and was orcerec to keep still for ten minutes after
Uargaret and Joseph left. After chay left he untied Campoell, opened
the ice box and let the people out.


eu
2 ¥ :
n

SIMRIN PT CIE”
te 2
2% :

«
we

Coy Say eres
*
a

J o¢ Robinson Loses
Ist Round in Fight

CO et ca

4

To Escape Chair

~ RICHMOND (#) — A man
convicted . of. a% 1943. murder
in Portsmouth: has lost the
first-round in an unusual le-

- gal.fight to escape: Virginia's
. electric chair.

: Richmond's Hustings Comins re-

jected Joseph Robinson’s demand

that. he be returned to New York
to complete a 15 to 40- “year sen-

| . tence for robbery.

-’ Robinson, 40, argued that Vir-
ginia has no right to send him to
the electric chair until hé finishes

- Serving: the New. York sentence.

The New York term, he’ ‘contend-
et has priority. « : =

« Robinson was Veonvicted iw
<a ago of slaying Marc A. Ter-
yell; a Portsmouth theater mf&n-
meer, in. 1943.. After > Terrell’s

he: scathgBse ats Ra th cS a a wi tele

salon: Robinson left the state,

eventually to be arrested in New ¥

York.
After Virginia authorities final-

Se Dee ea tes

ly caught up with him, he wasj|>

brought back to the Old Dominion| ".:

under an-agreement worked out

between Gov. Dewey of New York! , *

and Virginia’s: Gov. Battle.
Robinson contended the agree-

iment stipulated that he be re-

turned to New York. In denying

his plea, the court said “it is not x

the function of a court to inquire

into either the reason or wis-

dom of executive action.”

Robinson's ‘lawyers initinated
they will appeal the: case to the
State Supreme Court.

~ ee

SF

f

PORTSMOUTH STAR-JUNE 13, 1953