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THE WASHINGTON Post

Defendant
Denies He

Is Kaller

Ja. Man Testifies

In Genetic Trial

By Evelyn Hsu —

Washington Post Staff Writer

Timothy W. Spencer testified on»

his own behalf yesterday, denying
that he killed Susan M. Tucker of
Arlington, as the first murde: case
in Virginia based largely on genetic
evidence wound to a close.

Spencer, 26, was on the witness
stand in Arlington Circuit Court for

_ only a few minutes. He replied “No”
firmly each time as defense attor-
ney Carl J. Womack Jr. asked if he
had broken into Tucker’s home,
raped her and murdered her.

Spencer acknowledged to the
jury that he has three felony con-
victions for burglary.

He also acknowledged that a
green camouflage jacket introduced
as evidence by the prosecution be-
longed to him. But he said he left
the jacket in his Richmond home
and did not wear it when he came to
Arlington over the Thanksgiving
weekend last year.

Spencer’s mother, Thelma Spen-
cer, said Spencer arrived at her Ar-
lington home in the early morning
hours of Thanksgiving Day Nov. 26.
He was driven home to Richmond
on Nov. 29 by a relative, she said on
the witness stand.

An expert testified earlier this
week that a shard of glass found in
the jacket had optical qualities sim-
ilar to a broken basement window in
Tucker’s Fairlington Villages town
house.

Police found Tucker, 44, dead in
the master bedroom of the town

Shas:

SOSA

RIES TERE:

Timothy Spencer, on witness stand, denies raping, killing Fairlington woman.

house last Dec. 1. Her body was
nude, her hands were tied behind
her back and there was a noose
around her neck. An expert said she
died three to five days earlier.
Commonwealth’s Attorney Helen
F. Fahey declined to cross-examine
Spencer. Spencer is charged with
rape and capital murder. He has
pleaded not guilty to the charges.
The prosecution’s case is based
largely on the results of genetic
tests. An expert testified Wednes-
day that semen stains found on
Tucker’s nightgown and on a sleep-
ing bag in her home had the iden-
tical DNA, or genetic makeup, as
blood samples taken from Spencer.
A geneticist has testified that the
chances of another man having the
same DNA characteristics as Spen-
cer is at least one in 135 million.
The defense has said the pros-
ecution’s case is based on circum-
stantial evidence. Virginia is only
the eighth state in the country to
allow genetic evidence in criminal
cases. ta oe
In another development, after a
discussion in open court but out of
the presence of the jury, defense

attorneys agreed to admit to the
jury that they had no evidence that
any of Spencer’s male relatives
committed the crime.

During earlier testimony, the
defense had emphasized the num-
ber of male relatives Spencer has in
the Washington area. This, along
with arguments that the genetic
makeup of relatives may be similar,
would have laid the foundation for
doubts about Spéxcer’s guilt.

Circuit Court Judge Benjamin
N.A. Kendrick said if the defense
attorneys did not make such an ad-
mission, he would allow prosecutors
to refute such doubts by telling the
jury of murder charges Spencer
faces in the killings of two Rich-
mond women.

Prosecutors said the similarities
between the Richmond and Arling-
ton cases would show a “signature”
or pattern tying them to Spencer
and that they should be allowed to
show a relative could not have com-
mitted the Richmond crimes.

Both sides rested their case yes-
terday. Closing arguments are
scheduled for this morning and the
case will then go to the jury.


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Was bin 1g 7h Lose

C4 bee a Juty 13,1988 ++

Defendant

“By a Washington Post Staff Writer

Timothy W. Spencer, on trial in
the rape and strangulation of Susan
Ms-Tucker, asked a detective in
January why he would have to give
a blood sample after he had been
arrésted on burglary charges, an
Arfington County detective testified
yesterday.

Detective Joseph Horgas, who

ar¥péted Spencer in Richmond on
butglary charges stemming from an
Arhrigton case, said that during the
drive back to Arlington he told
Spencer that suspects sometimes
cut themselves on broken window-
paries or similar jagged objects and
leaye blood stains.

Spencer “advised me he did not
cut:himself,” Horgas said.

Then Horgas testified that Spen-
cet, 26, asked him whether the
charge was related to a slaying in the
Fairlington area of Arlington. “He

said he wanted to know because he.

lived i in the area and read the news-
pafrer, that he knew what was going
on;*Horgas said. The body of Tuck-
er 4A, was found bound in her Fair-
lington town house Dec. 2.

wp- Monday, at the beginning ot
the, first Virginia capital murder
case in which the results of genetic
tests will be submitted as evidence,
Sp&acer pleaded not guilty. Circuit
Judge Benjamin Kendrick ruled in a
heating last week that prosecutors
can'fise the genetic typing evidence
that-they say links Spencer to Tuck-
er’s killing.

bag experts testified in last
week’s preliminary hearing that
Spencer’s genetic makeup matches
that-found in semen residue at the
crime scene.

jurors watched while a homicide
investigator held up photographs of
Tucker’s body as it was found in the
upstairs master bedroom. The only
sign of forced entry was a broken
bagement window, police officers
testified.

Frances P. Field, an assistant
stdté medical examiner who per-
formied Tucker’s autopsy, said the
woman had been dead for three to
five ‘days when her body was discov-
ered. Neighbors, who were con-.

’ cefned when they did not see Tucker

for days, had summoned police.

A hair expert testified that hair
samples found in Tucker’s home are
consistent with those of Spencer.
“My. conclusion was that these hairs |
could have originated from this in-
dividual,” said Myron T. Scholberg,

a hair and fiber expert at the North-

ern Virginia crime lab.

Spencer also has been indicted on
charges of raping and murdering
twp-Richmond women.
=

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~


WEDNESDAY, OCTOBER 12, 1988 A9 i

Pardon Urged for Man Convicted of Va. Murder

Washington Lawyer

aying of

. degree murder in February 1985 in:

/0O-(2 -8&

By Dana Priest

New Evidence Links Another to SI

cause of the two death sentences

against him.

exchange for having capital murder

charges against him dropped.

Washington Post Staff Writer

The request for pardon, which
could take months, must go to the

Arlington Commonwealth’s At-
torney Helen F. Fahey said yester-

Fahey said tests of semen found
on Hamm’s body linked the killing

makes a recommendation to the

Thomas J. Kelley, Spencer’s at-

torney during his Arlington trial,

The Tucker case this summer
See PARDON, AQ, Col. 5

governor.
in any court in Arlington linking”

Spencer to Hamm’s death or any

been absolutely nothing presented
other crime in this area.

of guts.” But, he cautioned, “there’s

Virginia Parole Board, which then
said Fahey’s decision “showed a lot

In September, a jury sentenced
him to death for the 1987 rape and
strangulation of Debbie Davis of

Fahey said Spencer would not be
charged with the Hamm slaying be-

murder of Arlington resident Susan
Richmond.

found guilty by an Arlington Circuit
Tucker.

because new evidence links a re- Court jury in July of the rape and

cently convicted murderer with the

crime.

to Timothy J. Spencer, who was

ernor to pardon a man imprisoned
on a murder conviction since 1984
Fahey said she is seeking the re-
lease of 41-year-old David Vasquez,
now serving a 35-year sentence, be-
cause she does not “believe he was
involved” in the slaying of Washing-
-“ton lawyer Carolyn Jean Hamm.

day she plans to ask Virginia’s gov-
Vasquez pleaded guilty to second-

hash ing fon st

Pardon Sought for Man

Convicted tn Va. Murder

PARDON, From Al

was the first in Virginia to rely on
genetic DNA testing to link a sus-
pect to a crime. Fahey said police
were unable to perform DNA tests
in the Hamm case because of the

‘ condition of the four-year-old ev-

idence. But, she said, tests that
identify blood type and other com-
ponents in semen revealed that the
semen found on _Hamm’s body
“matches Spencer’s.”

Fahey said Vasquez’s case was
reopened in December when Ar-
lington police were investigating
Tucker’s murder. She said Arling

The case was the

Jirst in Virginia to
_rely on genetic

DNA testing to link

a suspect to a crime.

ton detectives and FBI investiga-

| tors, who were asked to reexamine
' the evidence in the Vasquez case,

concluded “that whoever committed
the Tucker homicide committed the
Hamm homicide.”

Fahey said Arlington authorities
also have linked Spencer to 15 oth-
er incidents, including eight rapes
‘in 1983 that occurred between the
‘time he was released from a Vir-

_ ginia state prison and rearrested in

Alexandria on a burglary charge in,
January 1984.

Spencer still faces rape and cap-
ital murder charges in the death of,
another Richmond woman and a
Chesterfield County teen-ager.

Spencer was a member of a half-
way house in Richmond that al-
lowed him weekend and night fur-
loughs during the time the Rich-
mond and Arlington slayings were
committed, according to court tes-
timony. He pleaded not guilty in
those cases.

The Hamm case, which began i in
1984, drew considerable commu-
nity attention because of the brutal-
ity of the crime and the complexity
of the case. Police said Hamm’s
nude body was found in the base-
ment of her Arlington home, and
she apparently had been hung from
an overhead water pipe and sexu-
ally assaulted.

Richard J. McCue, Vasquez’s at-
torney, said he spoke to Vasquez
yesterday about the possible par-
don. “He is pleased this step is be-
ing taken, but he’s not going to be
completely relieved until he is re-
leased.”

At the time of Vasquez’s trial,
Henry Hudson, then Arlington’s
commonwealth’s attorney, de-
scribed the case as “undoubtedly
the most complicated” of his career
as a prosecutor. He said at the time
that Vasquez was in a tranceliké
state when he made statements to
police about the slaying, creating “a
case encased with a dream.”

Vasquez is incarcerated at thé
Buckingham Correctional Facility i in
Dillwyn, Va.

LY

4

ai)

(9

Genetic ‘Test Trial Opens in Arlington

Prosecutor Says New Evidence Is Vital to Rape-Murder Case

F—-/2.-&F

By a Washington Post Staff Writer

Prosecutors told jurors in the
capital murder trial of Timothy W.
Spencer yesterday that the results
of genetic tests will be the key ev-
idence that links Spencer to the No-
vember 1987 rape and slaying of
Susan M. Tucker in her Arlington
town house.

In the first day of Virginia’s first
murder prosecution to rely primar-
ily on genetic test results, Com-
monwealth’s Attorney Helen Fahey
told an eight-woman, six-man jury
that semen residue and hair sam-
ples found in Tucker’s bedroom
match genetic components consis-
tent with Spencer’s blood samples.

Tucker’s nude body was found
bound, with a noose around her
neck and her hands tied behind her
back, in the bedroom of her Fair-
lington Villages residence. Police
said Tucker, 44, had been dead for
several days. before her body was
found Dec. 2.

Defense attorney Carl J. Womack
Jr. called the state’s case circum-
stantial and that there are “no spe-
cifics’ that prove Spencer, 26,
killed Tucker. Spencer pleaded not
guilty.

Reginald D. Tucker, the victim’s
husband and the state’s first wit-
ness, choked back tears as he tes-

tified about the last telephone con- -

yersation he had with his wife of 18
years. The couple had decided in
late 1987 to move back to his native
home of Wales, and Reginald Tuck-
er was in England at the time of his
wife’s slaying to search for work
and a place to live, he told the
court.

They spoke frequently by tele-
phone, the last time on Nov. 27, a
Friday. The Tuckers decided to talk
again on Monday. When Reginald
Tucker didn’t hear from his wife, he
first became angry, he said, then
worried when he wasn’t able to
reach her by Tuesday night, he
said.

“I called every five minutes, ev-
ery two minutes until 1m the morn-
ing,” he testified. At 3 a.m. some-
one finally answered, a police offi-
cer, who said, “ ‘Bad news, sir, your
wife is dead,’” Reginald Tucker
said.

Audrey Sizelove, a neighbor of
the Tuckers’, testified that she be-
came worried when Susan Tucker
did not show up to go grocery shop-
ping. Susan Tucker did not drive
and relied on the Sizeloves to take
her to the market every Monday.

As Sizelove and her husband .

walked past the Tucker house Mon-
day evening, they noticed the mas-
ter bedroom window open “an ex~

cessive amount for the type of
weather we were having,” she tes-
tified. “I thought she might be
away, but she was very meticulous
about leaving things closed up,

turned off,” she said.

On Tuesday morning, Sizelove —
again noticed the open window and
after consulting with friends sum- —
moned police. .

Prosecutors said they probably
would call more than a dozen wit- —
nesses: during the trial, which they
said might Yast until the middle of
next week. :

Several geneticists testified in a
hearing Jast week that so-called
DNA priating, a method of genetic
testing for criminal identification —
that is becoming increasingly ac-
cepted in courts across the country,
is the most accurate means of sin-
gling out suspects because no two .
people share the same genetic com- .
position except identical twins. ;

Circuit Judge Benjamin Kendrick
ruled that DNA test results are ad-
missible as evidence in Spencer’s |
trial, putting Virginia among seven —
other states that have accepted ge-
netic typing as evidence in a capital
murder trial, a procedure lawyers
predict will become standard. |

Spencer also has been indicted on
charges of raping and murdering ~
two Richmond women.


In a First, Virginia Puts to Death
A Killer Convicted on DNA Tests

Special to The New York Times

JARRATT, Va., April 28 — Timo-
thy W. Spencer died Wednesday night
_in Virginia’s electric chair, becoming
‘the first person executed in the Unit-
‘ed States for a conviction based on
‘the DNA-matching technology popu-
larly known as genetic fingerprinting.
' Mr. Spencer, 32, known here as
“the Southside Strangler,” was con-
victed of raping and strangling four
women over 11 weeks in 1987. None of
the victims survived to identify him,
no fingerprints were found and no one.
confessed. Then, DNA tests linked
-gemen from the crime scenes with.
“Mr. Spencer's blood.

The clock above -Mr. Spencer's
head read 11:13 P.M. when he died at
the Greensville Correctional Center,

60 miles south of Richmond.

Less than a half-hour earlier, the
United States Supreme Court reject-
ed a last-minute appeal by Mr. Spen-
cer’s lawyers for a retesting of the
genetic evidence. A court spokesman
said Justice Harry A. Blackmun had
cast the lone dissenting vote.

Mr. Spencer’s execution was ex-
pected to be the first of many such
sentences imposed as a result of DNA
matching.

DNA, the body’s genetic code, can
be used to tie suspects to crimes by
matching strands of DNA in samples
of their blood to ‘strands found in
semen or blood stains found at the
scene of a crime. Scientists have tes-
tified that such matches can be made
with a high degree of certainty, esti-
mating the odds of an error at one in
millions. Such evidence, not intro-
duced in United States courts until
1986, is now in wide use and has been
the basis of many capital convictions.

As is the case with most issues
related to the death penalty, genetic

allel attracts passionate de-
ate.

“It’s peace of mind for prosecu-
tors,” said Virginia’s Attorney Gen-
eral, James S. Gilmore 3d, who ar-
gues that DNA matching minimizes
the likelihood that innocent people
will be executed.

But defense lawyers assert that the
technology can ‘be too: complex for
juries to understand. And court-ap-
pointed lawyers often cannot afford
the scientific expertise to challenge
the prosecution scientists.

Mr. Spencer’s victims all were
killed while he was living at a Rich-
mond halfway house after being re-,
leased from a state prison where he
had served three years of a 10-year
-sentence for burglary. The slayings
took place on weekends when Mr.’
Spencer was signed out of the half-
-way house.

Mr. Spencer’s case has also drawn

- attention because of a protest by the;

chief doctor of the Virginia Depart-

ment of Corrections, who took a vaca-
tion day on Wednesday. —

Arapist left no

witnesses but did

leave a genetic clue.

State law requires a doctor em-:
ployed by the Corrections Depart-'
ment to be present when a death;
sentence is carried out. But last:

month, the American M dical Associ-

ation said its ethics code proffibited
doctors from participating in execu-
tions. Jt called on state licensing and
disciplinary boards ‘‘to treat partici-
pation in executions as grounds for
active disciplinary proceedings, in-
cluding license revocation.”

N.Y, TIMES
FRI, 4-29-94


Kapil is the first doctor in the country to refuse Ben Hawkins, 4 spokesman for the corrections .
to attend an execution since the AMA's March 23 department, confirmed that Kapil will be unavail-
— ruling, said Leigh Dingerson, director of the able April 27.

The state of Virginia will electrocute a four- Washington-based National Coalition to Abolish “It won't be the first time that Dr. Kapil has not

By Carlos Sanchez
Washington Post Staff Writer

time murderer next week, but the prison system’s the Death Penalty. participated,” he said.

head physician says he will not be there to per- There have been three executions nationwide Hawkins added that the department has not
form his traditional role and pronounce the prison- _ since that time. : linked Kapil’s absence and the AMA pronounce-
er dead. 3 As attending physician, Kapil would have been ment.

Balvir L. Kapil has said he is worried about los- called on to pronounce the inmate dead after cor- ein a
ing his. license to practice, now that the American rections officials delivered a surge of electricity, a 2 pe a nb Mos ‘ fr a Spicer
Medical Association and other groups have ruled. role that certain health professionals say is unethi-. cian until an official complaint ae been filed

that any physician who participates an execu- Maryland, which is preparing to —

Last month the AMA, the American College of doctor faces the possibility of finding the inmat@ first execution 10 30 years during the week of

the American Public Health Association issued a‘ tioners finish their job.

statement that executions “contradict the funda- Dingerson said that is precisely. what happened lic Safety and Correctional Services said one will
mental role of the health care professional as heal- in August 1991 in Virginia, when a jolt of electric- be there to pronounce death.

er and comforter.” : ity failed to kill Derick Peterson and officials were Israel Weiner, the chairman of Maryland's
“1 will be on holiday for three days,” Kapil said forced to deliver a second jolt. -medical licensing authority, said that although
yesterday, adding that he had “been told by the di- Kapil, who has witnessed a dozen executions, 2 ethical dilemma could arise at executions, he
rector [of corrections] not to talk to reporters.” was not present for that one, Dingerson said. doubts that the board would take any action

Kapil was scheduled to attend the April 27 exe- Kapil has told colleagues that he wants to re against a physician who pronounces an inmate

cution of Timothy Spencer, ‘who was convicted of flect on his role-in executions and talk to Virgin- dead. 5
| killing three women in Richmond and one woman ia’s Board of Medicine, which licenses doctors, “] favor capital punishment, but I would not par-

in Arlington in 1987. | | sources said. ticipate personally,” he said.

eo ee ee


\W
Victims’ Families
Forgo Invitation

To.Va. Execution

For the first time, Virginia
opened the doors of its death
chamber last week to the families
of crime victims.

But no one came.

After all the heart-wrenching
debate among lawmakers over the
new policy, not a single relative of
a victim contacted Attorney Gen-
eral James S. Gilmore III about
witnessing Wednesday night’s
electrocution of Timothy Wilson
Spencer in Jarrett, Va.

Spencer, known as the “South-
side Strangler,” raped and mur-
dered four women before he was
‘caught thanks to DNA genetic
testing.

Josephine Dudley, whose
daughter, Debbie, was Spencer’s
first victim, said she had no desire
to see Spencer again, even on his
_ dying day.

Dudley sat through every day
of his trial and found the sight of
him excruciating. Shortly before
his execution, she said in an inter-
view that witnessing his death
would be unbearable.

“| just don’t want to watch,” she _

said. “All this time, I’ve been
dreaming about him, and that
would only keep him in my
-dreams.”

| The new policy on witnessing
executions resulted from a bill in-
troduced during this year’s Gen-
eral Assembly session. Supporters
of the legislation said the families
of murder victims should be given
the opportunity to watch the
death of the killer who had caused
them such pain.

Although it was approved by
the House of Delegates, the bill
was defeated in the Senate after a
tense debate and a tiebreaking
vote by Lt. Gov. Donald S. Beyer
Jr. However, Gov. George Allen
announced that he would change
the state policy by executive or-
der, effective for the duration of
his four-year term.

Although no relatives attended
last week's execution, one person
selected as an impartial witness
was Del. Robert F. McDonnell (R-

‘Virginia Beach), sponsor of the
bill on witnessing executions.

After the execution, McDonnell
walked out of Greensville Correc-
tional Center looking ashen. He

Post 5-3744

said he was moved by the experi-
ence, although it had not changed
his mind about capital punish-
ment.

“There’s no joy in seeing anoth-
er human being die,” he said. “It
was easier to think of an execu-
tion in a sterile setting, until they
actually brought him in five min-
utes before, and then you saw a
young and vibrant man, and two
minutes later, he’s dead. It’s an
awesome thing.”

— Peter Baker

Letters
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Letters ma
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andin

way superior to
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mself.

MICHELE McCAUSLAND

Y you are in
Mr. Spencer hi

A10 San Francisco Chronicle xx ee. THURSDAY, APRIL 28, 1994 |

Virginia Executes Killer
— DNA Convicted Him

Associated Press

Jarratt, Va.

gler,” had consistently maintained ‘

. his innocence. He made no state-

Timothy W. Spencer, a serial
killer and rapist who was the first
person convicted of murder on the
basis of DNA evidence, was execut-
ed last night after a last flurry of
appeals failed.

The 92-year-old Spencer, :

known as the “Southside Stran-:~

ment before being put to death in
the electric chair for the first of

four rape-murders he was convict-.

ed of committing. He was pro-
nounced dead at 11:13 p.m.

At 10:45 p.m., the Supreme
Court turned down a request from
Spencer’s lawyers to halt the exe-
cution. A court spokesman said
Justice Harry Blackmun cast the
lone dissenting vote.

Spencer. was condemned for.

the murder of Debbie Dudley Da-
vis, the first of four women who
were killed in a series of break-ins
during three months in 1987. The
victims were bound with clothing
and household items, then raped
and strangled or hanged.

Spencer was arrested in Arling-
ton, Va., 100 miles away.

During his trial in 1988, prose-
cutors cited evidence from three-
criminal laboratories that conclud-
ed that semen found at all the

crime scenes came from Spencer.

Scientists said the chance that the
semen could match someone else
was one in 705 million.

At the time, testing based on
DNA, the molecule that carries ge-
netic information, had been tried
in a few criminal and paternity
cases but never in a murder trial.

“Without DNA, I don’t think
there’s any question he wouldn't
have been convicted,” said Dr.
Paul Ferrara, Virginia’s chief fo-
rensic scientist.

Since Spencer’s convictions,
DNA testing has been used by law
enforcement agencies worldwide. .

Spencer was the 24th person
executed in Virginia and the 235th
nationwide since the Supreme
Court allowed states to reinstate
capital punishment in 1976.

oS TS NN: SFR. 0ST!


ch, Richmond Times-Dispa

Richmond, VA
Circulation: M-Sat a.m.
140,250, Sun 242,582

UNDER CLOSE GUARD — Convicted murderer
Timothy W. Spencer was under heavy guard

Staff photo by Wallace Huey Clark

when entering and leaving Chesterfield Circuit
Court during his trial this week.

Chesterfield County jury convicts
Spencer of Cho rape and murder

Continued from first page

stains left at each crime scene. .

. DNA, or deoxyribonucleic acid, is the basic genetic
material found in each cell. Each person is believed to
have a unique DNA pattern, with the exception of identi-
cal twins.

~The DNA fingerprinting, however, couldn’t be per-
formed on stain samples from the Cho crime scene
because they were contaminated with bacteria.

Dr. Edward Blake, a California genetic specialist and
co-founder of Forensics Science Associates, testified
Thursday that he helped to develop amplified DNA
typing and uses it extensively as a forensics tool, particu-
larly if samples of body fluid have been contaminated.

The procedure allows scientists to type such a sample
through a procedure that artificially replicates the dam-
aged DNA molecule and makes copies of it, Dr. Blake
Said. The molecule is then genetically typed and com-
pared with the genetic pattern of the suspect.

Dr. Blake said the samples he tested from the Cho
crime scene matched the genetic pattern in samples
taken from Spencer. In addition, Dr. Blake said, other
factors in Spencer’s biological makeup helped him nar-
row the field of possible suspects to less than 1 percent of
the population.

During vesterdav’s sentencing hearing defense law-

testify on her son’s behalf. She began to cry when Ever-
hart asked her if she had anything to say to the jury.

“Yes,” she answered, sobbing quietly. “I still love my
son.”

Everhart told the jury that Spencer can’t be consid-
ered a danger to society because he’s already received
three death sentences for the murders and three life
sentences for the rapes associated with them. Because of
that, Spencer would never be eligible for parole.

“You can give him the death penalty, and stack them
up to the top of Mount Everest, but you can only kill him
once,” Everhart said. In effect, Spencer “is a walking
dead man. I know that sounds harsh and callous, but
calling it a different name doesn’t make it different.”

Von Schuch told the jury that the brutality of the crime
alone is basis enough for Spencer’s execution. That,
coupled with his criminal record, is a strong endorse-
ment for maximum punishment.

“Any gauge you have [of Spencer’s danger] is what he
did in the past,” Von Schuch said. “Mr. Everhart is asking
you to gamble that another jury will not have to face
another Mrs. Cho,” the victim’s mother. —

“In any moral society, the punishment fits the crime,”
Von Schuch said. “The only proper punishment is the
ultimate punishment.”

Jurors shouldn’t feel guilty, as Everhart suggested,
about calling for the death penalty, Von Schuch said. “If
Timathe Qi nnnne ~ane a ba AVA nba an AAT. 8 oa '’


Date

A Clipping From
Virginia Press Services
News Clipping Bureau
P.O. Box C-32015

Richmond, VA 23261-2015

The Fairfax Journal
Fairfax, VA
Circulation: 53,859

MAY 45 1999

Spencer again .« |
sentenced

Convicted.
offourth: |

murder |

RICHMOND

For the fourth time, prosecu-
tors have used genetic evidence
to convict Timothy W. Spencer of
rape and capital murder.

Spencer, already sentenced to
death for his convictions in the
three previous cases, including a

murder in Arlington, got the same,

sentence after his conviction Fri-
day in the Nov. 22, 1987, death of
Diane Cho. :

The 15-year-old Manchester
-High School student was attacked
in her bedroom. :

A Chesterfield County Circuit
Court.jury deliberated for 3%
hours over two days before con-
victing Spencer of capital mur-
der, rape and breaking and enter-
ing with intent to commit rape in
the slaying of the teen-ager,

The nine-woman, three-man
panel recommended a life sen-
tence for the rape conviction and
20 years in prison for the break-
ing and entering count.

After hearing evidence in the
capital murder sentencing phase
of the trial, the jury said Spencer
should die in Virginia’s eléctric
chair.

‘Deputy Commonwealth’s At-

torney Warren B. Von Schuch fin- -
ished his case Thursday with tes- .

timony from geneticist Edward T.
Blake.
Blake said genetic evidence

matching blood and semen found

-¢

_ Timothy W. Spencer

Raped, killed Richmond teen

at. the scene of the murder with
Spencer's body fluids showed
that the chance of someone other
than Spencer being the intruder
was less than 1 in 100.

DNA testing also was used to
convict Spencer, 27, in the mur-
der of an Arlington County wom-
an, Susan M. Tucker, 44, on Nov.
27, 1987, and in the the rape-
murders of two women from
Richmond’s South Side: 35-year-
old Debbie Dudley Davis on Sept.
19, 1987, and‘32-year-old Dr. Su-
san Elizabeth Hellams on Oct. 3,
1987. Lo

Spencer, a convicted burglar,
was living in a south Richmond
halfway house under a work-re-
lease program at the time of the
murders.

In all four cases, the women
were bound, raped, sodomized
and strangled.

Associated Press

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By Hugh Robertson b [Io 4 A
News Leader staff writer
» Timothy W. Spencer was sentenced
today to death in the electric chair for
the 1987 rape and strangulation of
Chesterfield County teen-ager Diane
ho.
’ The sentence was the fourth death
penalty Spencer, called “The South
Side Strangler,” has received.
; In pronouncing sentence, ‘Judge
Join F. Daffron Jr. of Chesterfield
Circuit Court followed the recom-
mendations of a nine-woman, three-
man jury that found Spencer guilty
May 12 on a capital murder charge.
The jury took 47 minutes to decide
Spencer should die for the crime.
~ Spencer also faces maximum sen-
tences imposed by the jury of life in
prison for rape and 20 years for bur-
glary.
~, Miss Cho, a 15-year-old Manchester
High School student, was raped and
strangled shortly after midnight on
Nov. 22, 1987, in her bedroom in the
apartment she shared with her par-
ents and younger brother at 7501 Ga-
vilan Court.

In today’s sentencing, Deputy Com-
monwealth’s Attorney Warren B. Von
Schuch told Daffron that Spencer
should die because he is a continuing
threat to society and because of the
vileness of his crime.

Daffron said he agreed and im-
‘posed the death sentence.

Spencer spoke briefly today, noting
the appeals of his convictions that
have been filed. He predicted he will
be back in the Chesterfield court-
room.

Spencer already had been convict-
ed and sentenced to die for the rapes
and murders of two South Richmond
women, Debbie Dudley Davis, 35, of
4520 Devonshire Road, the night of
Sept. 18-19, 1987, and Dr. Susan Eliza-
beth Hellams, 32, of 514 W. 31st St., the
night of Oct. 2-3, 1987.

His first conviction and death sen-
tence was for the rape and murder of
an Arlington County woman, Susan
M. Tucker, 44, the night of Nov. 27-28,
1987. The attack occurred while Spen-
cer was on a Thanksgiving holiday
furlough from a South Richmond
halfway house.

_ Inall four trials, Spencer was con-
victed largely on the basis of DNA
testing, a relatively new laboratory

ASS

Yon
an

fo death fourth time |

technique that ‘matches body: fluids
found at the scene of a crime with

blood samples from the defendant.
: Because of the newness of the tech-

nique, the question of allowing its use
as evidence is proving to be the basis
of Spencer’s appeals of the death sen-
tences to the Virginia Supreme Court.

Spencer’s trial for Miss Cho’s death
also relied upon DNA testing but on a
technique even more sophisticated
than tests used in the three previous
trials. County prosecutors initially
had thought that because of contami-
nation of a stain found at the crime
scene, the sample would be useless
for DNA testing.

Another unusual aspect of the trial
was the decision by Daffron that pros-

ecutors should have the opportunity _

to introduce evidence from the three
previous slayings to show a pattern of
behavior. :

- ‘The four victims all were attacked
in their homes,-bound, raped and then

‘strangled with such devices as belts
or cords looped around. their necks. |
There also was evidence the victims

had been sodomized.

Police believe Miss Cho was fol-
lowed to her home by Spencer after
he spotted her with friends that eve-
ning at nearby Cloverleaf Mall. Her
parents’ apartment is located in the
Chesterfield Village complex adja-
cent to Beaufont Mall across Midlo-
thian Turnpike from Cloverleaf Mall.

Miss Cho was strangled with a
rope, and her wrists had been bound
behind her back. Police believe the
slip noose around her neck had been

— connected to her bound wrists.

The attack on Miss Cho was differ-
ent in one respect from the others. In
the previous murders, the three wom-
en all had been alone in their homes.

However, Miss Cho was strangled
in her bedroom just a few yards from
the bedrooms in which her parents
and brother were sleeping.

Se

WARAIOHATOLKLEAIUINAAAT


Chesterfield jury convicts
Spencer of Cho murder

By Joseph Williams
Times-Dispatch staff writer

A Chesterfield County jury yesterday convicted Timo-
thy W. Spencer of capital murder, breaking and entering
and rape for the slaying of 15-year-old Diane Cho, who
was found strangled in her family’s apartment in No-
vember 1987.

The jury sentenced Spencer to death on the capital
murder charge, life in prison on the rape charge and 20
years in prison on the burglary charge. Each sentence
was the maximum allowed by law.

Miss Cho, of 7501 Galivan Court, was found bound and |

raped on her bed on Nov. 22, 1987. Her mouth was
covered with duct tape and she had been choked with a
rope.

Spencer has received three other death sentences for
the South Richmond murders of Debbie Dudley Davis, 35,
and Dr. Susan Elizabeth Hellams-Slag, 32, and the Ar-
lington County slaying of Susan Tucker, 44. All of the
victims had been raped, bound and strangled by an
assailant who broke into the homes through a window.

The jury heard from nearly two dozen witnesses and
viewed more than 70 items of evidence during the week-
long trial. That evidence included a new, more advanced
genetic typing method — called amplified PCR DNA
typing — which matched body fluid stains found at the
scene to samples taken from Spencer.

Deliberations began Thursday evening but were sus-
pended for the night after about 90 minutes. The panel
resumed its discussions yesterday at about 9:20 a.m. and

the verdict was reached shortly before 11 a.m.

The decision, to send Spencer to the electric chair was
made despite an emotional plea from his mother, Thel-
ma Spencer, that his life be spared. Several jurors wept
during her request, made during a brief sentencing
hearing after the verdict was announced.

Under state law, only two sentences are possible after
a capital murder conviction — life in prison or death.
Before deciding, the jury heard evidence on whether
Spencer is a future danger to society and if the crime
was heinous enough to warrant death as punishment. ©

The jury’s decisions on the guilty verdicts and the
sentencing were unanimous. Spencer, dressed in dark
slacks and a white dress shirt, sat quietly at the defense
table as the verdict was read.

Prosecutors Warren Von Schuch and William Daven-
port centered their case around the similarities between
the Cho slaying and the three other murders. Each of the
victims had relatively similar, stocky body types, each
was overcome quickly by the assailant, and each body
was somehow covered or hidden after the attack.

Records also showed that Spencer was absent from his
room in a South Richmond halfway house when each of
the murders was committed and returned shortly before
each body was discovered.

In the three previous cases, Spencer was convicted
largely on the strength of genetic “fingerprinting,” or
identifying matching DNA patterns. The laboratory
technique matched Spencer’s DNA patterns to semen

Continued on page 5, col. 1

acon ert

acasun Je Acpat4yes


eer

SPENCER, Ti ;
. » timothy W., black, elec. VA (Richmond cg) April 27, 1994,

ae — ae ee e
Southside Slayer terrorized Richmond

d environs. Three of victims were Diane

Cho (I.), Rena G. Chapouris (center) and Dr. Susan Hellams (r.). M.O.’s
were significant, as were DNA tests later presented when serial killer was tried

Neatness was the
killer’s nemesis in the case of

VIRGINIAS
RAMPAGING
‘SERIAL
~ RAPE-SIAVER!

by BARRY BENEDICT

Special Investigator for
OFFICIAL DETECTIVE

prowl killer was loose on the dark

streets of Richmond, Virginia.
Called the Southside Slayer, he went
about his murderous work with brutal,
single-minded professionalism.

His victims were white females. They
were assaulted while asleep, helpless
and unable to defend themselves against
his horrifying onslaught.

The killer knew this, of course. That
was how he wanted them—alone, help-
less, vulnerable.

The Southside Slayer was not the
only serial killer to stalk the history-rich
neighborhoods of this old city, which

1E THE autumn of 1987, a hot-

22 Official Detective

was once the capital of the Old South. In
the fall of 1987, however, he was the
most feared and the most hunted.

Two dozen highly trained detectives
were pulled from other cases to find the
Southside Slayer. Their mighty efforts
produced a casebook with over 600
clues and testimony of 300 questioned
witnesses, over 30 of them possible sus-
pects. ;

The commonwealth attorney later
called it one of the most thorough and
exhaustive investigations ever con-
ducted in the county.

The Southside Slayer proved to be a
crafty adversary. He left behind few
clues—and no witnesses. He might still
be free if it weren’t for one detective’s
long memory and a new identification
tool that traced evil to its genetic make-

up.

The case began on September 17,
1987, with the report of an abandoned
car in front of a South Richmond home.
The doors were locked and the engine
was still running. Apparently the driver
had simply parked the automobile and
walked away.

The vehicle was registered to Debbie

Dudley Davis, a 35-year-old employee

of a local magazine. A police officer
went to her first-floor apartment on De-
vonshire Road to check on the situation.
Knocking repeatedly and receiving no
answer, he tried the next-door neighbor.

The neighbor said she was a good
friend of Debbie’s but hadn’t seen her
since the night before. Nonetheless, she
did have a key to Davis’ apartment; she
gave it to’ the officer.

Entering the apartment, the detective
spotted a broken window in the kitchen
and an empty purse on the living room
floor. To his keen, unblinking eye, these
conditions indicated a burglary.

But it was a bit more serious than
that, as the police officer discovered
upon entering the bedroom. What he
saw sprawled on the bed was the limp
form of Debbie Davis. She was naked;
her hands were tied behind her back and
a long pantyhose was wrapped around
her neck.

A team of detectives was quickly dis-
patched to the scene. They soon deter-
mined that the pretty, dark-haired
woman had slipped into her night-
clothes and had been sound asleep when
the intruder entered her apartment
through the kitchen window.

Ripping-the frilly garment from her
shoulders, he tied her hands with rope
he’d apparently brought along, pushed
her onto the bed, and raped and started
to strangle her.

Then he tied the pantyhose around
her neck, looping it through the rope
that bound her hands behind her back in
such a manner that her slightest move-
ment caused the makeshift noose to
tighten.

After searching her bedroom and
purse he left, leaving Debbie Davis to
suffer a slow, agonizing death.

Lab technicians combed the tidy,
neatly organized apartment and her car,
abandoned almost one mile from the
murder scene. They came away without
a Single fingerprint or other incriminat-
ing evidence that could be linked to the
killer.

Residents told police that Debbie
Davis was a good neighbor, always
careful whom she let into her apartment
and always making sure the doors and
windows were locked before she went

ue]
~

SEPP TI tbiddl

OFFICIAL DETECTIVE, June, 1989

the task of setting the penalty for.a de-
fendant they have convicted of capital
murder. The jurors took little more than
an hour to decide it—death in the gas
chamber. They.had turned a deaf ear to
the now formally convicted killer’s plea
when he took the stand on his own be-
half during the penalty phase of the pro-
ceedings. “‘I didn’t kill the lady,’’
Spencer pleaded. “I feel sorry for her
family. Sentence me to anything besides
sentencing me to death.”

Seven witnesses had testified on
Spencer’s behalf, describing him as a
loner as a child and as “‘friendly, quiet,
and always with a smile on his face.”

However, as he was being led out of-

the courtroom after adjournment,

Spencer displayed another aspect of his

personality when he made an obscene
gesture to the judge with his middle fin-
ger.

Prosecutor Fahey told an Arlington:

Journal reporter that the-conviction and
death sentence was a victory for the use
of DNA as evidence and an appropriate
punishment for Spencer who she por-
trayed as a serial killer who would con-
tinue killing if freed.

In her closing arguments to the jury,
she had told the jurors: ‘“‘There’s some-

thing terribly wrong with Timothy
Spencer. He tortured, raped and mur-
dered Susan Tucker as a crime of hatred
toward women.”

Although Virginia is one of the few
States in the country that actually carries
out death sentences, knowledgeable ob-
servers of the criminal-justice scene,
point out that it will be some time be-
fore Timothy Spencer is actually exey
cuted in view of the unprecedented legal
questions presented by his case. These
will have to be reviewed by the Virginia
Supreme Court and passed on before the
death sentence can be carried out.

On September 7, 1988, Spencer was
convicted of the September 19, 1987,
rape-murder in Richmond, Virginia, of

-Debbie Davis whose body was found

with a sock wound around her neck. He
also faces rape and murder charges in
the ‘death of another Richmond woman
and a Chesterfield County teenager. In
accordance with the American legal tra-
dition, he must be presumed innocent of

those crimes until convicted in court.

Something that is most disconcerting
to the lawmen assigned to investigate
the crimes attributed to Timothy Spen-
cer is the fact that he was already a
prisoner of the Virginia Department of

Corrections when he was committing
them. They feel that supervision of half-
way house prisoners obviously leaves
something to be desired in view of what
happened.

For his part, Detective Joe Horgas

‘found himself the recipient of a singular

tribute penned by a professor of crimi-
nal law at the George Washington Uni-
versity School of Law and editor of The
Scientific Sleuthing Newsletter. Wrote
the professor: “There ought to be a Hall
of Fame for law enforcement officers. If
there were, Detective Joe Horgas of the
Arlington County, Virginia, police
would be in the front and center rank of
those first to be enrolled. Without a
flicker of a doubt, but for the law enfor-
cement perspicacity and pluck of Detec-
tive Horgas, Timothy Spencer would
still be on the Virginia streets burglariz-
ing, raping and murdering in the serial
way that had become his signa-
ture.” @

EDITOR’S NOTE:

Dorothy Thomas is not the real name
of the person so named in the foregoing
story. A fictitious name has been used
because there is no reason for public in-
terest in the identity of this person.

“Impersonating a judge, your honor!”

54 Inside Detective

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to bed. No one had heard any screams or
other sounds of disturbance the night
before. Most of them were long-term
tenants of the complex and had experi-
enced little trouble.

Two weeks later, while police were
still searching for leads, another woman
was raped and murdered. Dr. Susan
Hellams was a 32-year-old neurosurg-
ery resident at Medical College of Vir-
ginia Hospitals. The pretty blonde
physician lived in a two-story home on

had left the hospital on Friday evening,
October 2nd, and headed homg, plan-
ning to spend the weekend with her hus-
band.

As far as police could determine, she
reached home without incident, cooked

‘ dinner and enjoyed a glass of wine be-

fore going to bed. Several hours later,
she was tied up, brutally raped and
strangled.

During their inspection of the scene,
the detectives discovered a broken win-

Announcing capture of slayer to press.are (center) Atty. Aubrey Davis, with Police
Chief Frank Duling (I.), Maj. V. Stuart Cook (r.) and standing, Capt. Kenneth K Jenkins

West 31st Street with her husband, a law
student at George Washington Univer-

_Sity in Washington, D.C.
On October 3rd, her husband came ©

home and found his wife’s partly
clothed and bound corpse stuffed into
the master bedroom closet. He imme-
diately called the police. ;

Patrol officers were the first to arrive,
following by homicide investigators and
a deputy coroner. With the crime scene
sealed off, the sleuths began a top-to-
bottom search of the elegant apartment.
They also questioned neighbors, as well
as her/husband and hospital co-workers.

Detectives learned that Dr. Hellams

24 Official Detective

dow in the basement. The husband did

not remember the window being bro- -

ken; police assumed that it was smashed
by the murderer.

Sleuths figured that the killer claimed
the stairs to the first floor, where he ap-

parently. rifled a purse and stole grocery |

money stuffed in a kitchen jar. Then he
went up a flight of stairs to the second-
story bedroom. — 2

An examination of the corpse indi-
cated that the assault had been long and
brutal, with the victim being sexually at-
tacked several times before she was
strangled.

Sex-crimes detectives quickly noted

similarities between the murder of the
Dr. Susan Hellams and the earlier slay-
ing of Debbie Davis. Both were white
women who were attacked while alone
in their homes on weekends within two
weeks of each other.

Both victims had apparently been
asleep in their bedrooms when they
were attacked; both had been bound
with their hands behind their back and
strangled with a garment taken from the
house. And the homes of both had been
robbed.

As far as police could ascertain, Deb-
bie Davis and Susan Hellams did not
know each other or move in the same
social circles. Detectives speculated that
the victims had been selected at random,
perhaps even followed by the rapist in a
plan to learn their habits and to be sure
they would be alone when he entered
their homes. And this made him unusu-
ally dangerous.

Hard pressed for leads, detectives
turned to the criminal files, searching
for crimes that showed similarities to
the South Richmond rape-murders.

They had barely begun this procedure
when another woman was raped and
murdered. Diane Cho was a 15-year-old
freshman at Manchester High School in
suburban Chesterfield. Dark-haired and
pretty, she lived in a comfortable mid-
dle-class home on Gavilan Court.

On November 22nd she was found
bound and naked in her bedroom. She
had been sexually assaulted and stran-
gled.

Though the pretty high school student
was much younger and lived 15 miles
south of the other victims, it was appar-
ent to detectives that she had been as-
saulted by the same person.

Aware that a serial killer-rapist was
loose and had struck three times within
just ‘six weeks, Richmond Police Chief
Frank S. Duling formed a task force to
work the cases full time. Heading the in-
vestigative team of handpicked detec-
tives was Major V. Stuart Cook and
Captain Kenneth Jenkins.

The investigators prepared a long list
to be checked out; it consisted of crimi-
nals who had been convicted of sex of-

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three of the Idaho killings.”

Rhoades claimed that he had been in
Salt Lake City only once, but Salt Lake
police have proven he was in the city on
several occasions and that he even
worked for a construction company
there. He was fired from his job one day
before one of the Utah women was mur-
dered.

Salt Lake police say the same .38-cal-
iber pistol killed all three Salt Lake vic-
tims, though the ballistics on that
weapon do not match the .38-caliber

slugs used in the Idaho killings. Officers.

have evidence that Rhoades had in his

possession a pistol stolen ina Salt Lake
burglary. That pistol was later recovered
in Idaho Falls, but the ballistics failed to
match it to the Salt Lake killings either.

“We are aggressively investigating
Mr. Rhoades anywhere we can locate
him in the United States,” said Salt
Lake Homicide Lieutenant Don Bell. “‘I
think when we’re done, we’re going to
see that Rhoades is responsible for a lot
of murders.”

*“We know he did one in Nevada, but
we can’t find a victim,” said Detective
Shaw. “He had fresh blood all-over bim
when he was arrested there.” took

Rampaging Rape-Slayer (from page 24)

fenses or had committed violent crimes
and either lived or worked in the neigh-
borhoods where the three women were
slain.

The sleuths also contacted the FBI of-
ficer in Richmond to request a psychi-
atric profile of killers whose method of
operation matched the man detectives
were now calling ‘“‘The Southside
Slayer.”

The request was turned over to the
agency’s crack Psychological Behav-
ioral unit in Washington, D.C. Detec-
tives later received a lengthy form that
included detailed questions about the
crime scene, victim description and oth-
er details learned during the investiga-
tions. The form was returned to the FBI.
By then, however, police had another
murder on their hands.

On January 6, 1988, Rena G: Chap-
ouris was found in her Grove Avenue
apartment in South Richmond. The
shapely 26-year-old brunette was strip-
ped naked and bound with her hands be-
hind her back. She had also been
strangled and bludgeoned. A bloodied
claw hammer was found beside the bed.

The police officers first on the scene
spotted the telltale signs and were'con-
vinced the Southside Slayer had struck
again. Task force investigators, who

were more familiar with the case,’

weten’t so sure.

For one thing, there was the hammer.

The victim had been struck repeatedly
in the side of the head, spewing enor-
mous amounts of blood on the bed and
walls, cracking her head like an egg-
shell.

None of the other victims had been
bludgeoned. In fact, those crime scenes
were almost. blood-free.

And, unlike the others, Chapouris,

70 Official Detective

though completely naked, did not ap-
pear to have been raped or sexually as-
saulted.

As detectives searched the small,
tastefully decorated apartment and
questioned startled, disbelieving neigh-
bors, another corpse was discovered.
The victim was Michael St. Hilaire, 29.
He was found in his West Main Street
basement apartment, nude and hanging
from a wire wtapped around his neck
and attached to a pipe.

Hilaire lived just a few blocks from
Chapouris. According to the coroner’s
report, he had committed suicide within
approximately the same time frame as
when Chapouris was murdered..

“Tt might be a coincidence,” a detec-
tive told a reporter. “But then, there
might be a Santa Claus, too!”

The task-force investigators didn’t
believe in coincidences or Santa Claus.
Searching Hilaire’s apartment, they dis-
covered a diary in which Hilaire had
hastily scrawled the message, ‘‘Need
money. Plan to do something dangerous
to get it. If not successful, I will kill my-
self.”

- That he had done. Police and coro-
ner’s investigators both concluded that
Hilaire had hanged himself.

The coroner’s report also showed that
Hilaire was a drug addict who was like-
ly going through withdrawal when he
wrapped the wire around his neck.

During the intense search of the tiny
basement apartment, investigators
found a string of newspaper clippings
on the murders of Debbie Davis and Dr.
_Susan Hellams and the hunt for the
Southside Killer. The clips detailed how
the women had been found nude with
their hands tied behind their backs.

‘‘Looks like we have a copycat

killer,” one detective remarked.

Physical evidence corroborated that
suspicion. Fibers from St. Hilaire’s
clothing matched fibers found on the
sheet where the nude body of Rena

Chapouris was discovered. Likewise, fi- -

bers from her clothes were found on St.
Hilaire’s clothing.

Detectives concluded that, desperate
for money, Hilaire had broken into
Chapouris’ apartment looking for cash.
Confronted or surprised by the pretty
brunette, he smashed her in the head
with a hammer, then searched the apart-
ment.

To throw the police off, St. Hilaire
had stripped and bound the lifeless body
to make the murder appear that it was
committed by the Southside Slayer.

What St. Hilaire hadn’t counted on
was the guilt.

“Tt appears he couldn’t stand to live
with what he did, so he killed himself,”
a detective noted.

Police found nothing linking St.
Hilaire to the other rape murders. The

‘official conclusion was that he was just

a frantic drug addict driven mad by his
habit and who decided to circumvent
the judicial system by being his own
judge, jury and executioner.

, Though one murder case was marked
solved, the task-force investigators had
been unable to make much headway
with the others. The FBI profile hadn’t
been much help; the questioning of hun-
dreds of witnesses hadn’t resulted in an
arrest. .

Then, in late January 1988, police got
a tip. It came from police in Arlington,

_ Virginia, seeking information on a 25-

year-old convicted burglar arrested on a

Yape-murder charge.

The victim was Susan Tucker, 44, an
employee with the U.S. Department of
Agriculture. On December 2, 1987, a
friend contacted police and told them
she had not seen Susan since Thanks-
giving. She’d called Susan’s friends and
gone to her home, but was unable to
reach her.

Police officers paid a welfare call to

Susan Tucker’s two-story condominium ~

in the exclusive Fairlington section of
suburban Arlington. After finding the
woman’s car in the underground parking
lot, they tried the door. When no one an-
swered, one of the officers climbed
through a window.

Susan Tucker was discovered in the
master bedroom. Her nude body lay
face down on the bed with a sleeping
bag thrown over the upper half of her
body. She had been raped and

SORES TS

sodomized
most a week
Entry int¢
made throu
which had
open. The ki
to the bedr«
had apparen
Police co
gation. Neig
ers were que
grilled and |
the slightest
The clue
open came |
tive who sai
scene remin:
glar he had
The burg!
25. A nati’
Spencer had
ary and rob
leased to a |
The detec
“cool, slipr
out of break
cupants w¢
showed, ho
were succes

I June |
a two-year
ing. Parole
turned to pr
being conv
nection wit
in.

Then, on
rested and «
home in Ak
cident, a m
up and saw
He later id
prowler.

Spencer
as well as |
the same e
prison. He °
house in R
1984,

Spencer
inches tall
When his n
Tucker’s ne
him. His p1
the house a
offense con

* Acting ¢
hunch, inve
Spencer to
knew about

On Janu:

" lice Detec

Richmond


234

at 4-5, (E.D.Va. Jan. 21, 1993) (supplying
additional reasoning for rejecting claim).
Further, we doubt very much from the rec-
ord we have in front of us that Spencer is
correct when he charges in his brief that his
attorneys did not read the current literature.
Spencer has the burden of proof on the issue
of deficiency, and he has not carried it. We
note that the attorneys even attended Spenc-
er’s Arlington trial in these serial killings and
had a blind DNA test run by an independent
laboratory, which only corroborated the
Commonwealth’s evidence.°

Issue 3—Voir Dire

[7] Spencer charges that his counsel’s
performance was deficient because they did
not conduct voir dire on the issue of racial
bias. The affidavit submitted by Spencer’s
attorneys shows that they made a strategy
decision not to conduct voir dire on this
issue:

Prior to trial, because of the publicity
from the first Richmond trial, we asked for
and obtained a change of venire and the
jury selection actually took place in Nar-
folk. We also asked for and obtained indi-»
vidual voir dire. During jury selection, the
questions we asked any given juror were
based upon our combined professional
judgment as to how best to determine
whether the juror was impartial or would
be favorable or unfavorable to the defense.
If a prospective juror’s answers gave us
any doubt about his or her impartiality, we
either challenged the juror for cause or
followed up with additional questions until,
in our judgment, the doubt was removed
or we believed the juror’s answers war-
ranted a challenge for cause. In our view,
particularly because of the change of veni-

5. In addition to the murder of Miss Davis, which
was before us in our earlier case reported at 5
F.3d 758, Spencer was tried and ccnvicted of the
capital murder of Susan Tucker in Arlington
County. We referred to the Arlington trial in our
earlier reported opinion, and an appeal concern-
ing that trial is pending on our docket as Case
Number 93-4004.

6. Spencer argues that his trial counsel erred in
making this determination in light of Turner v.
Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d
27 (1986), which holds that a capital murder

defendant ‘“‘accused of an interracial crime is

18 FEDERAL.REPORTER, 3d. SERIES

re, race was simply not an issue in the
case. We had no reasan to believe “that
any prospective juror harbored any racial
bias against Spencer, and our decision not
to ask any questions on voir dire that
might have injected race into the case was
a matter of trial tactics.

Under Strickland, we defer to counsel’s
sound trial strategy decisions. 466 U.S. at
689, 104 S.Ct. at 2065.°

Issue 6—Mitigating Evidence

Spencer also argues that his counsel were
ineffective because if they had adequately
investigated his case, they would have discov-
ered that his presentence report, school his-
tory, and Department of Corrections reports
show that he was a troubled child, that he
was emotionally damaged by being told his
father was dead when he in fact was alive,
that he used a dangerous drug, PCP, and
that he may suffer from organic brain dam-
age. He also argues that they failed to seek
the appointment of a psychologist to evaluate
his mental state. Once again, we turn to
counsel’s affidavit.

[8] The record shows that they conduct-
ed a thorough investigation of Spencer’s
background, both personally and through the
use of a private investigator. Counsel or
their investigator interviewed family mem-
bers, neighbors, teachers, employers, and
halfway house personnel.’ We therefore re-
ject Spencer’s claim of deficient investigation.
In addition, counsel had observed the mitiga-
tion witnesses in the Arlington trial and in
the first Richmond trial. To the extent that
Spencer argues that there were witnesses
other than mental health experts who should
have been presented, Spencer’s attorneys

entitled to have prospective jurors informed of
the race of the victim and questioned on the issue
of racial bias.” 476 U.S. at 36-37, 106 S.Ct. at
1688. Turner does not apply to Spencer's case,
for in Tumer the trial judge refused to allow
questioning on bias after defense counsel re-
quested it. Tumer specifically states that a court
does not have to raise the question sua sponte
and that the issue of whether such questioning is
appropriate is left to the discretion of counsel.
- 476 U.S. at 37 & n. 10, 106 S.Ct. at 1688 n. 10.

7. Spencer was living in a halfway house in Rich-
mond when he murdered Dr. Hellams.

Seepie a EYE: TMB Og Sp coe
TOPR Rue, See Me 7 Ee te CRI Th a!

awe PY

formulated a

“combined px
mine which 4
nesses and
nesses.”

[9] As fo
mental state,
they never
experiences iz
sanity or his
at the times
never encoun’
other than
house that hg

Spencer’s <
neys who rep
ton trial had
psychologist 1
of any mitig
lington atto
further beca
information 4
Rather than
pert in the
first asked m
nal defense b
Spencer’s atta
Dr. Mullaney
his first Richy
nothing of 2
However, the
that Spencer’
and his imp
future dange
Spencer’s att
Dr. Mullaney.
in their affid

We decided

a witness:

“plus” of hii

opinion tha

ness would.
prison. In

8. - The habeas
is difficult t
This claim is
tion, which q
district court
defaulted. 3
slip op. at 3°
claim appear
as part of C
which was C

lettering erro


elie at
any racial
lecision not
dire that
he case ‘was

Oo counsel’s
466 U.S. at

lence

ounsel were
adequately
have discov-
;, school his-
tions reports
hild, that he
eing told his
ct was alive,
g, PCP, and
c brain dam-
failed to seek
st to evaluate
, we turn to

they conduct-
of Spencer’s
d through the
Counsei or
family mem-
nployers, and
» therefore re-
t investigation.
ved the mitiga-
mm trial and in
the extent that
vere witnesses
rts who should
rer’s attorneys

rors informed of
oned on the issue
—37, 106 S.Ct. at
o Spencer's case,
refused to allow
ense counsel re-
states that a court
estion sua sponte
ich questioning is
retion of counsel.
Ct. at 1688 n. 10.

vay e in Rich- ©

Hearains.

to

ns Soi in ate ees 9 Saheb ph rage eee
MORE ve

pet
eS

“combined professional judgment to deter-
mine which persons would make good wit-
nesses and which ones would be poor wit-
nesses.”

[9] As for Spencer’s claims about his
mental state, Spencer’s attorneys assert that
they never had any reason from their own
experiences in talking with him to doubt his
sanity or his ability to recall his whereabouts
at the times of the crimes. They also had
never encountered any evidence of drug use,
other than two urinalyses in the halfway
house that had shown marijuana use.

Spencer’s attorneys knew that the attor-
neys who represented Spencer in the Arling-
ton trial had hired both a psychiatrist and a
psychologist who had found a complete lack
of any mitigating circumstances. The Ar-
lington attorneys did not want to inquire
further because they feared they would find
information that would harm the defense.
Rather than request a court-appointed ex-
pert in the case, Spencer’s Richmond counsel
first asked members of the Richmond crimi-
nal defense bar to recommend a psychiatrist.
Spencer’s attorneys then hired a psychiatrist,
Dr. Mullaney, who evaluated Spencer before
his first Richmond trial. Dr. Mullaney found
nothing of any real help to the defense.
However, the report did contain an opinion
that Spencer’s crimes were “victim specific,”
and his imprisonment would minimize his
future dangerousness to society. However,
Spencer’s attorneys decided against using
Dr. Mullaney. Their reasoning is spelled out
in their affidavit:

We decided ... not to use Dr. Mullaney as

a witness for several reasons. The sole
“plus” of his testimony would have been an
opinion that Spencer’s future dangerous-
ness would be minimized if he were kept in
prison. In our judgment, this “plus” was

8. - The habeas petition filed with the district court
is difficult to construe.
This claim is embedded in Claim K of the peti-
tion, which concerns discovery violations. The
district court held that Claim K was procedurally
defaulted. Spencer v. Murray, No. 3:92CV160,
slip op. at 3 (E.D.Va. Jan. 21, 1993). The same
claim appears in the brief submitted to this court
as part of Claim 7 concerning DNA evidence,
which was Claim III and Claim N, because of a
lettering error, on habeas appeal to the Virginia

SPENCER v. MURRAY 935
Cite as 18 F.3d 229 (4th Cir. 1994)

formulated a trial strategy based on their

negligible and we were able to argue that
same theory to the jury everf without Dr.
Mullaney’s testimony. Moreover, the min-
imal “plus” was outweighed by the fact
that, if Mullaney were to testify at the
penalty stage, the jury would have already
found that Spencer committed the offense,
and Mullaney would have to admit that
Spencer continued to deny his guilt and
had shown absolutely no remorse.

Further,

we knew that if we wanted to use Dr.
Mullaney, then pursuant to Virginia Code
§ 19.2-264.3:1F the prosecution would be
entitled to have Spencer evaluated by its
own expert. Based upon what we knew
about Spencer and his offenses, we had no
doubt that the state’s experts would render
an opinion that Spencer was, in fact, “fu-
ture dangerous.” We affirmatively wanted
to avoid an expert opinion to that effect.
Based upon all of this information we made
a strategic decision not to request a court-

appointed expert and not to present any

mental health evidence at the penalty
stage.

In light of the reasonable strategy decision
made by Spencer’s counsel, we do not find
their performance deficient.

Claim 7—Deficient Handling
of DNA Evidence

[10] Spencer's final claim is that his
counsel were ineffective because they “were
unable to cope with the tremendous volume
of DNA evidence presented by the Common-
yrealth through its witnesses.” 8 The affida-
vit submitted by counsel once again belies
the claim.

Counsel conducted a thorough investiga-
tion of DNA evidence. They contacted sev-

Supreme Court. The Virginia Supreme Court
specifically excepted the question of ineffective
assistance of counsel from its procedural default
ruling. Spencer v. Murray, No. 910252 (Va. June
4, 1991). We address this claim to give Spencer
the benefit of any doubt in light of the Virginia
Supreme Court's ruling, but we do not mean our
finding to be a comment on the admirable job
the district court did in sorting out a confusing
and ambiguous petition.

£ iy
PANS

WHE Se

236 18 FEDERAL REPORTER, 3d SERIES

eral experts, and even had expert help
throughout the trial from experts unwilling
to testify. A claim of ineffective assistance of
counsel requires us to look at counsel’s con-
duct, not at the experts who aided counsel.
See Pruett v. Thompson, 996 F.2d 1560, 1573
(4th Cir.), cert. denied, —- U.S. ——, 114
S.Ct. 487, 126 L.Ed.2d 487 (U.S.1993).
Spencer would have us find fault with his
counsel’s conduct because they could not
bring to light arguable flaws in DNA testing
that the experts in the field did not them-
selves know about at the time and that are
still far from certain today. We cannot fault
Spencer’s lawyers for an inability to find
something that did not then exist. Their
conduct was not deficient, and Spencer there-
fore cannot prevail under Strickland.

B.

Actual Innocence Claim

[11] Spencer claims that he is “actually
innocent” of the crime for which he was
sentenced to death, and he would not have
been convicted if the “prejudicial injection of
astronomical probability ratios” into the trial
had hot occurred. Spencer’s specific fault.
finding with the probability statistics is a
claim that is procedurally defaulted because
not presented to the Virginia Supreme Court
on direct appeal. See Part II, supra. If we

construe Spencer’s claim as an assertion that

he is innocent of the crime for which he was
convicted, we cannot entertain his claim be-
cause “a claim of ‘actual innocence’ is not
itself a constitutional claim, but instead a
gateway through which a habeas petitioner
must pass to have his otherwise barred con-
stitutional claim heard on the merits.” Herr-
era v. Collins, —— U.S. ——, — , 118 S.Ct.
853, 862, 122 L.Ed.2d 203 (U.S.1993). A
claim of factual innocence, in the I-didn’t-do-
it sense, and actual innocence, which excuses
procedural default of a constitutional claim,
are two different things. See Spencer, 5
F.3d at 765. We have very limited discre-
tion, if any, to consider claims of factual
innocence, and Spencer has not produced any
evidence that would cause us to undertake

9. Actually, the district court discussed Sawyer in

the context of Spencer’s factual innocence claim. _

This is understandable because the district court

such. an inquiry. See id. at 765-66. There-
fore, we must assume that Spencer is assert-
ing actual innocence in an attempt to have
the merits of his defaulted probability claim
heard.

[12] At the outset, we note that the dis-
trict court was concerned that we may hold
that the actual innocence test for defaulted
claims under Sawyer v. Whitley, — U.S.
——, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S.
1992), applies only to penalty-phase errors
and not to guilt-phase errors. See Spencer
v. Murray, No. 3:92CV160, slip op. at 8 n. 13
(E.D.Va. Jan. 21, 1993). We have implicitly
held that Sawyer is not so limited by apply-
ing it to guilt-phase errors in Pruett v.
Thompson, 996 F.2d 1560, 1568 (4th Cir.),
cert. denied, —— U.S. ——, 114 S.Ct. 487, 126
L.Ed.2d 437 (U.S.1993), and we now explicit-
ly hold that Sawyer applies to such errors.

Spencer’s claim is that he would not have
been convicted if the probability statistics
had not been admitted. To have a defaulted
claim reviewed, a petitioner must first prove,
under the actual innocence test of Sawyer,
“by clear and convincing evidence that but

>for a constitutional error, no reasonable juror
would have found the petitioner eligible for
the death penalty under the applicable state
law.” Sawyer, US. \ , 112 S.Ct.
2514, 2515, 120 L.Ed.2d 269 (U.S.1992).
Spencer’s claim fails at the outset because he

cannot show a constitutional error that could

have infected the jury’s verdict.

The question of whether the probability
statistics should have been admitted is a
question of state law that does not involve a
federal constitutional issue. It is only in
extraordirlary circumstances that federal re-
view of these questions is warranted. Grun-
dler v. North Carolina, 283 F.2d 798, 802
(4th Cir.1960); see also Spencer, 5 F.3d at
762. Here, we find that the state trial court
carefully considered the DNA evidence, in-
cluding the population statistics. Spencer’s
counsel cross-examined the Commonwealth’s
experts about the Hardy-Weinberg equilibri-

issued its opinion before the Supreme Court de-
cided Herrera.

Pr EET Ue
BH? hale

Spies . 53

um, and the
the transcript
New York w
wealth’s DNA
fied. The sta
mation about :
along with the
DNA evidence
tistics. We si
tional error in
and we therefo
tation to react
probability sta
yer actual inr
Even if his c
result would n
our holding in
tions to the =:

We hold tha
not ineffective
land v. Washr
2052, 80 L.Ec
hold that Spen
does not state
the extent that
have the merr
statistics claim
entitled to hav

The judgme
cordingly

AFFIRMEL

10. The formu
laboratory, ar
Spencer's <
monwealth’s ©
population sta:
ing held, by ag
and in the ot


dis- .
hold
ulted

US.
(U.S.

rrors

encer
n. 13
licitly
npply-
ett v.
Cir.),
7, 126
plicit-

pryOrs.

have
atistics
ault
pro
awyer,
at but
e juror
ble for
e state
2 S.Ct.
S.1992).
ause he
at could

ed is a
mvolve a
only in
Heral re-
. Grun-
798, 802
F.3d at
ial court
ence, in-
Spencer's
nwealth’s

equith :

Cou

“baal he

Asiababness

ops gg RES eee aly ree an ee Bit a
SEES ARNE EY AERA BE OEE Sete

potrds

aX: RRR eT te oe

ill

We hold that Spencer’s trial counsel were
not ineffective within the meaning of Strick-
land v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). We further
hold that Spencer’s claim of actual innocence
does not state a constitutional clatm, and to
the extent that his argument is an attempt to
have the merits of his defaulted probability
statistics claim heard, we find that he is not
entitled to have that claim reviewed.

The judgment of the district court is ac-
cordingly

AFFIRMED.

W
° ee NUMBER SYSTEM

10. The formula by which Lifecodes, the DNA
laboratory, arrived at its population statistics.
Spencer's counsel cross-examined the Com-
monwealth's DNA witness with reference to the
population statistics in a joint suppression hear-
ing held, by agreement of the parties, in this case
and in the other Richmond case involving the

SPENCER v. MURRAY
Cite as 18 F.3d 237 (4th Cir. 1994)

um,!° and they had obtained and reviewed
the transcripts from cases in Florida and
New York where some of the Common-
wealth’s DNA experts had previously testi-
fied. The state trial court heard the infor-
mation about the limitations of the statistics
along with the rest of the information about
DNA evidence and decided to admit the sta-
tistics. We simply cannot find any constitu-
tional error in the admission of the statistics,
and we therefore must decline Spencer’s invi-
tation to reach the underlying merits of the
probability statistics either through the Saw-
yer actual innocence inquiry or otherwise.
Even if his claim were not defaulted, the
result would not be any different, for under
our holding in Grundler we leave these ques-
tions to the state courts.

237

Timothy W. SPENCER, Petitioner-
Appellant,

Vv.

Edward W. MURRAY, Director,
Respondent—Appellee.

No. 93-4004.

United States Court of Appeals,
Fourth Circuit.

Argued Dec. 7, 1993.
Decided March 1, 1994.

Convictions for capital murder and rape,
and death sentence imposed, were affirmed,
988 Va. 275, 384 S.E.2d 775. Petitioner
sought writ of habeas corpus. The United
States District Court for the Eastern District
of Virginia, Robert R. Merhige, Jr., Senior
District Judge, denied petition, and petition-
er appealed. The Court of Appeals, Widen-
er, Circuit Judge, held that: (1) petitioner
failed to exhaust state remedies as to claims
regarding jury instructions and verdict form
and regarding alleged inadequacy of state’s
appellate review of death sentences; (2) peti-
tioner failed to state federal claim with re-
spect to his allegations that forensic deoxyri-
bonucleic acid (DNA) profiling was unrelia-
ble; and (8) claim that counsel was ‘ineffec-
tive in dealing with DNA evidence was
barred for failing to exhaust state remedies.

Affirmed.

1. Habeas Corpus ¢=366

Federal habeas relief as to claim that
jury instructions and verdict form at sentenc-
ing phase of capital murder trial did not
adequately address. mitigating evidence was
barred for failure to exhaust state remedies,
where petitioner failed to raise claim on di-
rect appeal to state Supreme Court. 28
US.C.A. § 2254(b).

murder of Miss Davis. Spencer's counsel also
cross-examined the Commonwealth's DNA wit-
ness with reference to the population statistics at
the trial of this case in the presence of the jury.
The transcript of the joint suppression hearing is
a part of the state record, both in this case and in
the case involving the murder of Miss Davis.


> SPENCER v. MURRAY
Cite as 5 F.3d 758 (4th Cir. 1993)

1984), cert. denied, 470 U.S.--1088,:105'S:Ct:
1855,.85 L.Ed.2d 152° (1985). We not’“otily

have’no “authority to depart ‘from our prior

holdings‘ On ‘this point, see Caldwell: v: Ogden
- Sea Transp.,. Inc. 618 ‘F.2d 1087, 1041" (4th
Cir.1980); sée also U.S. Dep't of Healih'&
Human Servs. v. FLRA, 983 F.2d 578; 583
(4th Cir.1992) (Judge Murnaghan, : concurring
and: dissenting) (collecting” cases), we ‘are not

inclined to'do.so:and-decide the argument is
without merit. ~—

IV

Actual Innocence Claims |

[6] Spencer's. argument. (issue ». ‘ghout
the problems with the reliability . of DNA
evidence is. proffered in his brief as not being
procedurally, barred, because ‘it: is “RELE-
VANT .TO .THE. CONSIDERATION. OF
THE ‘ACTUAL..INNOCENCE’ OF..TIMO-
THY SPENCER.”: Spencer argues: that the
DNA. evidence against-him at. trial was cru-
cial -and: that the Commonwealth’ otherwise
‘ould have. been: unable to convict him.

pencer further argues that because of the
alleged errors in the testing process®: his
DNA results were flawed and he is: “actually
innocent.” Spencer’s argument misses the
point.of the actual. innocence inquiry. “[A]
claim . of ‘actual innocence’ -is- not vitself..a
constitutional claim,;-.but. instead:.a_ gateway
through which.a:habeas petitioner. must pass
to have his .otherwise-:barred. constitutional:

5. " Specifically, Spencer points toa ‘laundry list of
problems that might ‘have occurred! with his DNA
“ including: <=;

1. Bandshifting that. may ‘have ‘ocgithed be-
_ Cause the. tests. were.-not.run on same gel;
> 2 Cross-contamination or bacterial contami-
nation of the samples because ‘Lifecodes’ ‘p “pro-
cedures do not guard against these threats;
3. Invalidity because of ‘the lack of data on
the reliability of DNA testing of. ‘degraded. -
‘rénisic samples;-
74. . Incorrect matching’ because visual ingpéc:
. "tion, -rather than computer calculations,.were
“used to. declare a match; F
-'5: Invalidity that may have resulted aN po-
tentially Poor quality control or Proficiency
"standards; °
6." Tinpossibility~ ‘of ‘verifying’ results’ Gidiize
‘ Lifécodes’ ‘did not record what voltage they
‘Spplied ‘to'gel; ~~
‘7. “Inability to know whether Lifecodes prop-
erly performed tests: ‘because there are no stan-

dards for licensure“or required tests that labs
must complete;

views and scientific journals.

claim: considered: ‘on the’ 'merits.” Herveréi v.

Collins, —°U.S: —, ——= 113 serial "S68,
862, 122 L.Ed. 2d':203 (US. 1993)

Spencer's. ‘argument boils, down to an .as-

-sertion that the DNA results, were flawed

and he was wrongly convicted. This.. dis a
claim of Factual innocence. The errors he
points to—potential errors in, the- results of
the. DNA test—are errors. of fact, not. law.

We first: note: that the potential errors to
which Spencer points are not,:as he contends,

newly discovered evidence ®-in the sénse that

he has produced affidavits from‘ potential wit-
nesses or otherwise, but instead: has. prof-
fered rulings from other cases and: courts
and pre- and post-trial articles from:law:e-
“Even: if we
construe his articles and cases as newly dis-

covered evidence, he is not entitled to. a

hearing or «habeas relief. The Supreme
Court recently instructed:in Herrera v. -Col-:
lins,; — US...——, 113 S.Ct. 853; :°122
L.Ed.2d 203 (U,S.1998), that “[eJlaims of. ac-
tual. innocence. based. on newly discovered
evidence: have never been held to state: a
ground- for. federal.-habeas :relief absent an
independent constitutional :violation: occurring

in the underlying state. proceeding.” Herr-,

era, —.U.S.. at ——,. VHS S.Chak 2600 The
Court then..stated: .

wteiaes ai:

. We may-assume, Sr sake of ‘argumanit iz in .

“deciding this - case, ‘that i in a capital’ vase a

8. toncooe testimony. at trial shout, the s sta.
tistical likelihood of finding | someone else’ ‘with
same DNA type because-of potentially i improp-
-er application ofthe :product nile;. <°" 2:

.9. Lack of validation studies ‘to prove reliabil-

ity of DNA testing. -in forensic Setting and .of .

using sperm to: DNA ‘type; “and

“10. Possible inaccuracies resuleihg from Life-
codes’ use’ of certain ‘probes.’ ~ 22

‘For an-explanation, of. DNA testing. dnd dhs pare,

niques used therein, see the trial‘ court's, pinion.
in People v. Castro," 144° -Misc.2d_ 956, 545
N.Y.S. 2d 985 W. Y. Sup: Ct. “Bronx County 1989).

6. Spenose repeatedly has ae in his brief ak

at oral argument; ‘that’ ‘the main: réason* ‘the ‘DNA’
evidencé i in this’c case ‘was fourid't to “be ai

cized, because the’ criticisms were’ published’ af-

“ter his trial, and because Spencer ‘was, according
to counsel, the first person éver convicted with
DNA | evidence i in Virginia. -  . .

Abe Go 2 8

i sible Ay
is because it was: “too, new" to have been ‘ criti-


SPENCER v. MURRAY ag
Citeas5 F.3d 758 (4th Cir. 1993)

bility test of O'Dell v. Commonwealth, 234
Va. 672, 364 S.E.2d 491, cert. denied, 488
U.S. 871, 109 S.Ct. 186, 102 L.Ed2d 154

(1988), and specifically found DNA evidence

in general and in this case in particular to be
admissible. After reviewing the trial record,
the Court noted:

The record is replete with uncontradict-
ed expert testimony that no “dissent what-
soever [exists] in the scientific community”
concerning the reliability of the DNA
printing technique. Unrebutted expert
testimony further established that the test-
ing procedure performed in this case was
conducted in a reliable manner.

Spencer, 384 S.E.2d at 797 (emphasis added).
Further, the New York trial court case of
People v. Castro, 144 Mise.2d 956, 545
N.Y.S.2d 985 (N.Y.Sup.Ct. Bronx County
1989), on which Spencer relies for its argu-
ment that DNA tests performed by Life-
codes are inherently suspect does not sup-
port that proposition and also is decided un-
der New York law. The errors in Castro—
contaminated DNA probes, bacterially con-
taminated samples, and procedures used in
that particular test—do not appear in the
record of Spencer’s case.

After a review of the record with respect
to the admissibility of the DNA evidence,
which includes 150 pages on the motion to
prohibit the introduction of the evidence, con-
sisting largely of expert testimony, and 230
pages at trial, again consisting largely of
expert testimony, the state Supreme Court

affirmed ‘the trial court’s holding that the

evidence was admissible under the test in
O’Dell, that the test was reliable: After a
review of the same record, we think the
decisions of the state courts are not only free
from constitutional error under the due pro-
cess clause, no “error at all has come to our
attention. Three expert witnesses from Life-
codes, including the people who performed
the tests, testified, as did three independent
experts not connected with Lifecodes. The
gist of all of their testimony was that the
tests were reliable ‘and properly performed,

_ and that the DNA evidence showed Spencer

to have been the man whose seminal fluid
was found in Miss Davis’s bed. With the
district court, we see nothing improper’ or

fraudulent about the DNA test results or any
evidence of improper procedures i in this case.

We are of opinion the DNA evidence was
constitutionally admitted, and so hold.

Batson Claim
[4] Spencer’s next challenge is to the

Commonwealth’s use of a peremptory chal-

lenge to strike Miss Chrita Shelton from the
jury. The record reveals the following ex-
change on voir dire between Miss Shelton,
the trial court, and Mr. gis rahe one of
Spencer’s attorneys:

THE COURT: ....

This case involves, allegedly, the burgla-
ry, rape and murder. The victim’s name is
Debbie D. Davis. It happened in the
Southside of Richmond September, last.
The defendant’s name is Timothy Spencer.
The press has—not necessarily Mr. Spenc-
er, but the person who committed these

- crimes—has given them the name of the
Southside Strangler.

Have you heard eb rachis. about these
cases?

MS. SHELTON: No.

THE COURT: You haven't read or
heard anything about the cases at all?

MS. SHELTON: No. .

THE COURT: Then you :could: sit i im-
partially?

MS. SHELTON: Yes.

MR. EVERHART: Ma’am, you Say you
haven’t heard anything about this case?
MS. SHELTON: No. ;
MR. EVERHART: Have you read any
. articles or heard any reports about a scien-
‘tific process called DNA fingerprinting, or
DNA printing?
MS. SHELTON: No. . .
MR. EVERHART: .You don’t recall
that, and you advised [the trial judge] you
don’t have any predisposition against .the
death penalty, is that correct, ma’am?
MS. SHELTON: - Yes.
The Commonwealth’s Attorney later exer-

cised one of his peremptory challenges to
strike Miss Shelton. When Spencer’s coun-
sel made a Batson motion concerning Miss


SESS SSESeSaSeDaSO INAS

764

rey ahs eg ae F Jee? ‘ dee eS ee 8
Shelton and three other potential jurors
whidse exclusions are not raised'to this court,
the Commonwealth’s ‘Attorney ‘explained: his
striking Miss Shelton .as:followstt. 9° -

Next, we had Chrita Shelton, who hadn’t

heard anythihig’-about-‘the case. Quite
: frankly, I. am _.cancerned about the literacy
and the educational level of someone,-who
_ has not heard anything about either DNA,
_or anything about the Southside Strangler,
or Timothy Spencer. by now in this juris-
diction... The. publicity has been extensive,
and I am afraid if you heard: nothing, as
She indicated, she is not an informed citi-
zen. So I did not want that type of indi-
_ Vidual'on the jury. _
Spencer argues that the Commonwealth’s
Attorney's reasons. are. race-based,._ He ar-
gues that any questions about the degree of
Miss, Shelton’s literacy or that she is .not
properly educated is evidence of veiled racial
bias. In addition, Spencer argiies that the
objection that Miss Shelton had not heard of
DNA fingerprinting was improper because
almost none ‘of the potential jurors had heard
of it. er Saad
We are mindful of our obligation to pre-
vent the use of racially-based ‘motives in the
exercise ‘of peremptory thallenges: See Bat-
son v. Kentucky, 476°U.S. 79, 106 S.Ct: 1712,
90 L.Ed:2d 69 (1986)?! Howéver; we find that
the Commonwealth’s Attorney ‘offered: a
“neutral explanation.” for’. challenging’: [Miss
Shelton].” Batson, 476 U.S. at 97, 106 S.Ct.
at'1723. Although there; may, be times, when
a. prosecutot’s questions and statements dur-
ing voir dire examination may support an
inference of discriminatory purpose, see. Bat-
son, 476 U.S.\at 97-98, 106 ‘S.Ct. ‘at 1728, this
is not one of those times. After a review of
the jury selection proceedings, we’ note that
virtually all of the other members of the jury
panel had at least heard something‘about the
Southside ‘Strangler. --The Commonwealth’s
Attorney‘‘was entitled to’ strike a'potenitial
juror if-he found’ it odd: that a juror ‘had
heard nothing about a highly publicized case,
whether because he’ believed ‘the: potential

4. “ Spencer's reference to the Commonwealth's’ At-
torney’s: remark ‘that ‘he wanted: to’ get a jury. of
_ “elevated intelligence” also.takes the remark out
of context. The Commonwealth's Attorney made
the remark after

giving his“reasons for each

5 FEDERAL, REPORTER, $d ‘SERIES

juror was’ not being candid. with the court or
merely. found such , obliviousness _ strange,
Batsoi prohibits only the use of dierimina
tory motives when exercising challenges
nothing more dnd nothing less. We find’ no
evidence of improper motive here. Spencer’s
argument ‘about the Commonwealth's Attor-
ney’s references to DNA arid education takes
the remarks out: of context, and he” offered
nothing to the ‘trial court ‘to show that the
Commonwealth’s ‘Attorney's stated’ reasons
weré pretextual or showed any evidence of
discriminatory motive. See United States v.
Joe, 928 F.2d 99, 102 (4th “Cir.), cért’ de-
med, — US. —, 112 SCL 71, 116
L.Ed:2d 45 (1991); see also Hernandez v,
New York, — U.S. —, 111 S.Ct. 1859, 114
L.Ed.2d 895 (U.S.1991). Accordingly, we af-
firm ‘the district court’s ‘finding that: there
was-no merit to Spencer’s Batson claim. -::

Constitutional Challenge to
a Aggravating: Factor”
[5] Spencer. also challenges the future
dangerousness aggravating factor contained

as

in Va.Code Ann. § 19.2-264.2.. The relevant
part of that statute. provides: -
In assessing the penalty of any person
_ convicted of an offense for which the death
"Penalty ‘may be imposed, a sentence of
death shall not be imposed unless the court
_ or jury shall ... find that.there is a proba.
_ bility that the defendant’ would commit .
criminal acts of violence that would consti-
_ tute a continuing serious ‘threat to. soci-
Rs reece meee? i ee be
Va.Code Ann,.§ .19,.2-264:2: Spencer argues
that this provision. has. not-been meaningfully:
construed: by . the.: Virginia:. Supreme. Court
and that the provision. fails to channel the
jury's: discretion in .sentencing.... We-rejected
an almost identical. challenge. in-Giarratano
v. Procunier, 891 F.2d 483, 489-90 (4th..Cir.
1989), . cert... denied, 498 U.S. 881, 111..S.Ct.
222, 112 L.Ed.2d 178 (1990),.and have,previ-
ously rejected like challenges.; Seej.e.g., Bri-
ley v.. Bass, 750 F.2d_-1238, ;.1245-(4th Cir;
individual strike, and he was’commenting on ihe
fact that. another one-iof ‘the ‘jurors he struck
apparently did: not know :thé meaning - of the
word “impartial.” :


166 5 FEDERAL REPORTER, 34 SERIES

truly .persuasive demonstration. of “actual
innocence” made after trial would render
the execution; of a defendant unconstitu-
tional, and warrant federal habeas relief if
‘there’ were no state avenue open to process
such a Claim. “But because of the’ very
disruptive effect that entertaining claims of
‘actual innocence would have on the need
for finality in capital cases; and the enor-
mous burden that having to retry cases
‘based on often stale evidence would place
on the States, the: threshold showing for
such an assumed right: would: necessarily
be: extraordinarily high. 4
— US. at ——, 118 S.Ct..at 869. The
Court then decided: that Herrera’s evidence,
which ‘tended to. show that. his ‘brother had
committed the crime..and which consisted of
sworn “affidavits. from his: brother’s son and
his: brother’s lawyer, did not meet the ex-
traordinarily high burden the Court had _as-

sumed: -—— U.S. at ——, 113 S.Gt. at 869.

Although the Supreme Court did not artic-
ulate a standard for the “extraordinarily high
burden” a defendant claiming: factual inno-
cence would have to show, we conclude with
little trouble that-Spencer has ‘not met it.”
His “evidence”. of ‘innocence consists of con-

jecture from ‘articles about: potential prob-
lems with DNA testing. Spencer also prof-

fers the Supreme Court ‘of:‘New* York for
Bronx County’s trial court decision in People
v. Castro,:144 Misc.2d 956, 545 N-Y.S.2d 985
(1989), a case which: took place after Spenc-
er’s trial: “As we discussed § supra, ‘the Castro
decision. does not hold that Lifecodes’ meth-
ods are so. flawed that: its test results are
inadmissible. The Castro.court. was faced
with flaws in the particular test at. issue
there. .There is not.a shred of evidence. that
those flaws occurred. here. Further, in their
affidavit submitted to‘the state habeas ‘court,
Spencer’s trial ‘attorneys in this case ‘noted
that they had ‘worked with the attorneys who
represented Spencer in an earlier murder

7. We express, ‘No..view. on. "whether. Spencer has
any, ‘state, avenue open.. to. process [his] claim.”
: Herrera, — er US. ‘at ——, 113 S.Ct. at 869, Be-
cause he has’ not met ‘his burden of | proving his
entitlement to a a hearing, it is not necessary for us

| ‘to take up the” question of Possible state relief.

8. Once again, Spencer's «brief does not make
clear in exactly what context Spencer asserts this

case in the same series. of serial killings:in
Arlington. Spencer’s attorneys had attended
the trial and had.access to all. of the Arling-

ton attorneys’ data, including all of:the:prose-

cution evidence, which: included information
about. the murder of Miss. Davis involved
here.” Affidavit 115,-7, 9, J.A. at 264-65... In
addition, the Arlington | Attorneys: had. been

Pras y)

an independent DNA test from a different :

laboratory, Cellmark, which confirmed. the
results from Lifecodes. Affidavit 19, J.A. at
265. However, Spencer’s trial attorneys in
this case still kept looking into Lifecodes’
testing and submitted the DNA sample to
Lifecodes “under a fictitious name and in the
guise of a fictitious paternity case.” Affida-
vit 112, J.A. at 266-67. “The results of this
‘blind’ testing, however, only confirmed. Life-
codes’ previous conclusion that the DNA. pat:
tern from Spencer’s blood’matched the DNA
pattern from the DNA found in the body
fluids at the crime scene.” Jd. - Despite all
of Spencer’s attorneys’ efforts, it is clear that
there is no reason to believe-that Lifecodes’
procedures were in error in this’ case.
Spencer is not entitled to another hearing or
habeas relief under the factual i innocence ex-
ception of Herrera. :

To the extent that Spates has argied

ineffective assistance of -counsel because of

his trial counsel’s ‘performance in contesting
the DNA evidence,® the affidavit submitted
to the state habeas court belies such a claim.
To thoroughly discuss his trial counsel’s ef-
fectiveness would require us to overlook the

_ fact that the claim is defaulted, which we are
not willing to do, but -we are sure:that the -

outcome would not’ 'be any different if’ we
were to reach the merits. =

Sawyer Claim

7 ‘Finally, Spencer ‘asks us. to. reach. the
merits of.-his defaulted’:claim that. defense
counsel was denied ‘an’ ‘opportunity’ aiéquate-
ly to defend against” the DNA evidence be-

»-claim. Whether proffered as part of: his. factual:

innocence claim, as. a. freestanding « constitutional
_ claim, or as excuse for his. procedural. default,. the

claim must be exhausted before ' we can entertain

it, which Spencer has failed to do: in. this ‘case.

See, . e.g.,, Murray: v. Carrier, 477.U.S. 478, 106
S.Ct. 2639, 91 L.Ed.2d. 397. (1986).


- ees

Wilder Dela

le -2AZ~%A2
By Bill Miller

Washangton Post Sta Writer

Virginia Gov. L. Douglas Wilder
yesterday indefinitely delayed next
Wednesday's scheduled execution
of Charles S. Stamper, a convicted
killer confined to a wheelchair after
a 1988 prison fight.

Wilder said he wanted more in-
formation about Stamper's medical
condition before deciding on a bid
for clemency filed on the prisoner's
behalf. He set no timetable for mak-
ing a decision, but yesterday's ac-
tion means that, under state law,
Stamper cannot be put to death for
at least 30 days.

Stamper, 39, would be the first
Physically disabled person to be put
to death since the U.S, Supreme
Court restored the death penalty in
1976. Corrections workers would
have to wheel him to the death
chamber, and death penalty oppo-
nents said his electrocution would
be barbaric.

Stamper, his attorney and others

ys the Execution of Disabled Man

have argued that Stamper deserves
mercy because of his medical con-
dition. They contend that Stamper
should be given a life prison term
because he suffered pain and vio-
lence while in prison and because he
is not a danger to society,

Although Wilder said yesterday
that proof of Stamper's incapacita-
tion might not result in clemency,
the governor buoyed defenders’
hopes because he did not declare
Stamper’s disability to be irrele-
vant.

The governor did not say why he
believes the issue is important.

“The evidence available to me
++ «at this time is neither clear nor
conclusive,” Wilder said in a state-
ment issued yesterday afternoon. “I
am unable at this time to reach a
resolution as to the actual physical
condition.”

Stamper has spent the past two
weeks in the L Building, or “death

houses the electric chair, His attor-
ney, Dennis W. Dohnal, said he 2s-
Sumes that Stamper will be moved
to a prison infirmary,

“I obviously appreciate the gove
ernor doing what he did,” Dehnal
said. “Charles Stamper as well cer-
tainly wants this issue put to rest,
and he is grateful the governor
taking the time."

Stamper has been on death row
since 1979, longer than any of the
other 47 men awaiting execution.
He was convicted of fatally shooting
three co-workers at a Shoney's
Restaurant in Richmond in 1978
during a robbery. He suffered his
disabling injuries in a fight with an-
other death row prisoner in Sep-
tember 1988.

In the clemency petition, Dohnal
submitted a report from a neuro-
surgeon who concluded that Stamp-
er suffered a severe spinal cord in-
jury that left him partially and irre-

house,” at the Greensville Correc- versibly paralyzed.

tional Center in Jarratt, Va., living Stamper cannot stand without leg

in a cell 25 feet from the room that braces and a walker and he has lim-
THE Wasniscron Post

ited use of his arms and legs. Ex-
cept for a few minutes of exercise
Caily, he has been confined to his
wheelchair at various infirmaries
the past four years.

Dohnal said that some correc-
tions workers questioned the extent
of Stamper’s injuries in affidavits
submitted in response to the clem-
ency petition. After learning of
their doubts last week, he hired a
rehabilitation specialist from Rich-
mond to examine Stamper at Jarratt
on Wednesday.

The specialist's findings will not
be available until Monday, however,
and Dohnal called Wilder's staff
yesterday morning to ask for a stay.

When he granted the request,
Wilder said that he also wanted
more information from corrections
workers, doctors and others famil-
iar with Stamper's condition.

Since taking office in 1990, Wil-
der has granted clemency in two
cases; both prisoners raised ques-
tions about evidence, Eight others
were denied,

Over

+t Tvespay, OcToBer 20,1992

Condemned Va. Man’s Disabilit

y Offers Last Chance to Survive

By Bill Miller
Washington Post Sturt! Writer

JARRATT, Va., Oct. 19—Charles S,
Stamper has thought a lot about his im-
pending execution, and of this he is cer-
tain: No matter what it takes, he will walk
those last few Steps to Virginia's electric
chair.

Making that final trip will be no easy

* matter,

| Except for a few minutes of exercise

| each day, Stamper has spent the last four

| Years in a wheelchair—the result of a spi-

Nal injury suffered in a 1988 prison fight.

| With steel leg braces and a walker, he can

| shuffle a few steps—just enough, he said

| today, to let him seat himself in the chair

| once he gets to the death chamber.

| But guards will have to wheel him from

' his. celfblock at the Greensville Correc-

; tional Center to the death chamber,
Stamper said,

| “After that, I can manage the rest,” he

said in an interview in the Prison’s waiti

; Foom, only a few doors from the chair.

' “Put me in sight of it, and I'll make it
there. I have some braces that I use that
attach to shoes for exercise purposes. If |
get those on, I can make it, With a walker,

“I won't make them carry me.” he
added,

Stamper, 39, is scheduled to be put to
death Oct. 28 for the Slayings of three
co-workers in a 1978 robbery at a
Shoney's Restaurant. in Richmond. His
legal appeals appear exhausted, and he has
pinned his hopes of avoiding execution on
a plea to Gov. L. Douglas Wilder for clem-
ency. If that fails, he will be the first phys-
ically disabled person to be executed in
the United States since 1900.

His medical condition is central to his
clemency Petition, filed last month by his
lawyer, Dennis W. Dohnal, who argued
that Stampers injury has “effectively ren-
dered him a paraplegic.” The petition asks
Wilder to show “simple mercy” by sen-
tencing him to life in Prison.

Death penalty opponents, already con-
cerned at the speed with which Virginia is
dispatching inmates to the electric chair,
are speaking out in Stamper's behalf.

“The notion that the state can find no
other way [than execution] to keep people
safe from a man in a wheelchair ... is a
charade,” said Leigh Dingerson, executive
director of the National Coalition to Abol-
ish the Death Penalty. “It’s Srotesque. It's
just a grisly picture.”

The fight that landed Stamper in a
wheelchair and has kept him in prison in-
firmaries since September 1988 occurred

with a fellow death row Prisoner at the
Mecklenburg Correctional Center.

Stamper would not discuss details to-
day, saying the fight involved minor dif-
ferences.

“As far as I'm concerned, it’s over
with,” he said.

According to Dohnal, Stamper, ho has
lost 50 pounds since the injury and weighs
about 140, was bedridden for nearly a
year after the fight. Now he can manage
to walk 15 feet with the help of braces and
a walker, but the journey takes five
minutes.

In a telephone interview last week, the
man who fought with Stamper four years
ago said he wished him luck, adding that
his case is being followed closely by most
of the 47 men on Virginia's death row.

Wayne DeLong, 36, said he never
meant to injure Stamper so severely when
they fought in a prison day room.

“It was one-on-one, Straight up,” said
DeLong, who is awaiting execution for
killing a police officer,

“I kind of did the old... fingers-in-the-
eyeballs and picked him up and slammed
him down... . Unfortunately, things went
awry. He hit the concrete. . . . When he
hit, he hit his head and his back. The pa-
ralysis was a freak accident. I just feet that
the concrete floors and the force of the

slam and the Hows combined, and in 25
Seconds, it was over.

“L hope to hell he gets clemency. I'm in
Support of anybody on death row,” De-
Long said. “If you're going to wheel some-
one who's like a Paraplegic to his death,
it’s barbaric... . Tell him Of Buffalo—
that’s my nickname from the streets, and
it's been my nickname since the 1970s—
Said good fuck.”

Stamper would be the fourth prisoner
put to death in Virginia this year and the
ninth since the beginning of 1990. Since
taking office in 1990, Wilder has granted
clemency in only two cases: He permitted
convicted killers Joseph M. Giarratano and
Herbert R. Bassette Jr. to serve life terms
instead.

Stamper, who has been on death row
longer than any other of the state’s con-
demned prisoners, was convicted in 1979
of killing three co-workers in a robbery,
He would not discuss the case, but said he
was innocent.

Stamper, a cook at the restaurant, was
convicted of fatally shooting the assistant
manager and two other employees before
the restaurant opened for breakfast one
morning. He tonk about $4,000 from a
restaurant safe ard went on a spending
Spree soon after the killings, testimony
showed.

Numerous state and federal appes!s
have been made in Stamper’s behalf since
1979, all to no avail. Stamper said he wes
seeking clemency only because his per-
ents, two brothers and a sister wanted
him to do so.

For a week and a half, he has been in
Greensville’s L Building—known as the
“death house"—which was modified with a
wooden wheelchair ramp for his use. A
nurse has been assigned to tend to him
during the day and is on call at night.

He is partially paralyzed and has limited
use of his arms and legs. He has mobihty
in only the thumb and index finger on his
right hand, for example; the other fingers
are curled like a claw,

Stamper said he takes 16 pills a day to
Prevent pain and spasms, and he Popped a
handful during the interview. He said he
spends his days reading, watching televi-
sion and playing computerized chess,

“This finjury} has exceeded anything
they could do to me on death row,” Stamp
er said. “Every day is a constant battle. |
think I've already received the death pen-
alty tenfold.”

He added, “I don't pin any hopes on
Governor Wilder or anyone else. Hope is
something I seem to have lost a long time
ago.”


ranma

354 129 SOUTHEASTERN REPORTER (Va

subject of this assignment has been thor-
oughly considered by this court in a number
of recent cases. Without quoting from any
of them, reference is made to the cases of
Doyle v. Commonwealth, 100 Va. 808, 40
S. FE. 925, and Bowles v. Commonwealth, 103
Va. 816, 48 S. E. 527. In both of these cases,
where the circumstances were identical with
the circumstances here, this court, speak-
ing in the first case through Judge Keith and
in the second through Judge Cardwell, while
such conduct was deplored and condemned,
it was held that, as the misconduct of the
spectators received at the hands of the pre-
siding judge a prompt and vigorous rebuke,
sufficient to prevent its recurrence, the as-
signment of error was without merit. And
so we hold here, especially as, in addition
to rebuking the spectators, the presiding
judge in this case instructed the jury to dis-
regard the demonstration.

For the foregoing reasons, we are of opin-
ion to aflirm the judgment of the trial court.

Affirmed.

MEADOWS v. MEADOWS.

(Supreme Court of Appeals of Virginia.
Sept. 17, 1925.)

1. Estoppel €=70(2)—Failure to claim ease-
ment during negotiations as to partition
agreement as to a new road held not an es-
toppel.

Where person claiming and using road was
not party to partition agreement between heirs
of person over whose land road ran relative to

a new road, he was not bound by such agree-

ment, so that no estoppel could be based on his

standing by without making claim to old road.

2. Estoppel €—118—Conflicting evidence held
not sufficient to defeat claim to roadway by
estoppel amounting to charge of fraud.

In suit to enjoin obstruction of private
right of way, where character of estoppel
sought to be enforced against plaintiff amounted
to charge of fraud, conflicting evidence relating
thereto was not sufficient to support estoppel.

3. Estoppel ¢=116—Party relying on estoppel
by conduct of another has burden of proving
conduct relied on, and that party to be es-

land on both sides of private way failed te
prove that such parcels of land were opposite
each other, or, if they were, that he hat
fences extending to right of way on each side
thereof, he was not entitled to erect gate across
road.

Appeal from Circuit Court, Washington
County.

Suit for injunction by A. W. Meadows, Sr.,
against A. W. Meadows, Jr. From a final
decree perpetuating a preliminary injune-
tion, defendant appeals. Affirmed.

Hutton & Hutton and M. H. Honaker, all

of Abingdon, for appellant.
L. P. Summers, of Abingdon, for appellee.

BURKS, J. This was a suit in chancery
by A. W. Meadows, Sr., against A. W. Mead-
ows, Jr., to enjoin the latter from erecting
gates across a private right of way owned
by the complainant. The trial court granted
a preliminary injunction which it perpetuat-
ed by its final decree.

Joel Meadows, in his lifetime, owned land
on both sides of the Abingdon-Saltville road,
which, upon his death, descended to his three
sons, A. W. Meadows, Sr., James Meadows,
and John L. Meadows. It does not appear
when Joel Meadows died, but his sons made
partition of the lands between themselves in
1895. Fora long time prior thereto there had
existed a lane, fenced on both sides, running
north from the Abingdon-Saltville road to &
spring, or spring branch near the residence
of A. W. Meadows, Sr. Upon the partition,
John Tu. Meadows acquired the land on the
cast side of this lane, James Meadows got
the land on the west side of the lane, and
A. W. Meadows, Sr., the land north of the
other two tracts and of the termination
of said lane, and also 20 or 30 acres of land
on the south side of the Abingdon-Saltville
road. It is conceded in the petition for
appeal that A. W. Meadows, Sr., had the
right of way along this lane.

James Meadows devised his land, which
wus west of the lane, to the three sons of
John I. Meadows, one of whom was A. Ww.
Meadows, Jr. The date of the death of James
Mendows does not appear from the record,
nor does it appear what part of his tract each
of his nephews got, nor when nor how the

topped had reasonable ground to believe that | division was made.
his conduct would be acted on by such party. John LL. Meadows died intestate, some time

Party relying on estoppel by conduct of

after the death of James, and partition was

another has burden of proof to show clearly | made of his land on the east side of the lane

conduct relied on, and that party to be estopped | among his heirs, one of; whom was

A: W.

had rensonable ground to believe that conduct} yfeadows, Jr. It thu’ appears that A. W.

would be acted on by auch party.

Meadows, Jr., became the owner of part of
the land on both sides of said lane, but what

—_ hrough whose
4. Easements €=58(3)—Party through whos portions of each 1s not shown by the ali

land another claimed private way, falling to
show that he had land on opposite sides of

way, held not entitled to erect gate across It

Under Code 1919, § 2009, relating to erect-

The partition agreement between the heirs of
John L. Meadows is dated May 23, 1919, and
states that the lands thereby divided, were

ing gates across private ways, where owner of

“this day assigned to the respective parties.”

@=>For other cases see same topic and KUY-

NUMBER in all Key-Numbered Digests and Indexes

§
Fi
.

Va) MEADOWS v. MEADOW 5
ease 509 ge a

fee instant suit was brought December 17,
a

Some time prior to this partition, probably
six or seven years, though the record does
net accurately fix the date, the land in the
Inne, near its entrance into the Abingdon-
Saltville road, sank, making a considerable
hole, and making the alley impassable for
horses or vehicles. Afterwards, but when
the record does not disclose, a new road was
opened up through the lands formerly owned
by John L. Meadows, commencing on the
Abingdon-Saltville road about 100 feet east
ef the mouth of the old lane and coming into
the old lane not very far from the spring
en the lands of A, W. Meadows, Sr. This
new road appears to have been opened up by
the family of John L. Meadows, after the
death of John L. Meadows and before the
division of his land among his heirs, but the
record is very indefinite on the subject of
when and by whom it was done, as it is in
other respects. At all events, A. W. Mead-
ews, Sr., was no party to the partition agree-
ment aforesaid, and had nothing to do with
the making of the new road except that he
eonsented to the removal of the gate from
the mouth of the old lane to the new entrance
from the Abingdon-Saltville road and prob-
ably paid for its removal.

For a period of two or three years prior
10 the institution of this suit, A. W. Meadows,
Sr, used the new road, but his account of
the beginning and ending of such use is as
follows:

“19 Q. When that hole fell in up there at the
gate at the Saltville road, what did you do?

A. My sister-in-law said she wouldn't get
any water from down there where they had been
hauling water up the old road, and she asked me
to let her have the gate to put up above the
erchard at the new road to go down there for
water, and I told her she could have it, and she
said I could use the new road when I wanted to.

-0 Q. Now this lady that was talking to you
“ax the mother of A. W. Meadows, Jr., and
the widow ef John TI. Meadows?

vA. Yes, sir; that is right.

21 °Q. Had the John L. Meadows land been
divided at that time?
~ » No, sir; had not. She had possession
me 22 Q. What was put there at the mouth of

ie old lane, if anything, when the gate fell in?

A. There was nothing, because nothing could
ert in there because of that big hole there.

44 ts How long did you use the road that
= + asa Meadows gaye you permission to

“A. I don't k , , i
jase De yaa may have used it two

“#Q. Did you have any right over there?

“A. He stuck up a notice down there and
told me not to use it, not to trespass on his
land at all, and that is what stopped me.

“ory
: 27 Q. Have you ever used the new road
since?

“ 2.
A. No, sir; never been in it.”

After this A. W. Meadows, Sr., made some
|repair to the hole in the old lane so that
horses, but not vehicles, could get over it
and resumed its use. A. W. Meadows, Jr.,
then put a wire fence across it in two places,
which the complainant had cut down. He
then put gates across it in two places, which
resulted in the present suit.

There is much other testimony in the case,
but it consists almost entirely of statements
made either by A. W. Meadows, Jr., or A.
W. Meadows, Sr., and flatly denied by the
other. This is illustrated by the following
questions and answers in the re-examination
of A. W. Meadows, Sr.:

Mr. Meadows, A. W. Meadows, Jr., has tes-
tified that you claimed a right to use that new
road. Did you ever make such a claim?

“A. No, sir; never made it.

“Q. He has also stated that you agreed with
him to tear out the old fences up the old road
and build a fence up the middle of the old road
and for him to clean up the fence rows and
farm it.

“A. Never agreed to it; never di ythi
Bc d anything of

“Q. He also claimed that you stated that you
were done with the old road. I want to know
if you ever made that statement to him,

A. No, sir; that igs the only road I ever had.”

The appellant, A. W. Meadows, Jr., offered
no testimony but his own, and is contradicted
in most of his material statements by the
testimony of A, W. Meadows, Sr., the ap-
pellee.

The appellant relied upon two defenses to
appellee's bill for an injunction: Estoppel
and the right to erect gates under the provi-
sions of section 2009 of the Code,

The grounds of estoppel relied on are ap-
pellee’s —“conduct, acts, and demands for
the use of the old right of way”; (2) his
silence under the circumstances, knowing
that the land of John L. Meadows was being
partitioned with reference to the new road
and saying nothing about his claim to the
old lane; (3) His acceptance of the benefits
of the new roud when he could not use the
old one; (4) his negligence in not notifying
appellant of his claim that he wanted to
use the old right of way; and (5) misleading
the appellant to his damage by his conduct
silence, and acts. ;

‘it No, sir; none at all except she just told |
ae could. Had no rights at all. |
oe -" Q. After the John L. Meadows land was |

+}

ere this new road ran?

eee got part of it and A. W., Jr., got the

70

[{1-3] Appellee was no party to the partition
agreement between the heirs of John I.
Meadows, was not bound by it, and was un-

tided among his children, who got the land | de? no obligation to make continual claim
to a right of way which the appellant knew
existed and the abandonment of which he
: sitively denies. The circums >

GRRERN : pos } le circumstances attend-
Q hy did you stop using the new road? jing and the character of the use made by


ri

* a TOES PEAY 20 pe te Pops g Veh
f ee ithe e (ten ole ee ooo Le AE Gs


SPROUCE, Hudson, white, hanged at Harrisonburg, Vae, on December 10, 182).

"Sprouce, who killed his wife in Fluvanna County was brought to Harrisonburg, tried,
condemned and hung in the woods back of Mr. Rutherford's house, I saw the process~
ion pass on its way to the gallows. Sprouce with several preachers, among them Mr,
Smith who sat beside him on the coffin talking to him. As it was raining Mr. Smith
took off his overcoat and put it around Sprouce's houlders = talking to him and
trying to make him understand his condition, but Sprouce took no heed but was look-=
ing at the crowd. His wagon was surrounded by fifty mounted soldiers well armed,
then came hundreds of men and women whipping up their horses trying to get as near
as they could to the wagon = I could not bear to look at it only for a few moments,
The medical students came from Staunton with a covered carry-all determined to have
Sprouce's body. As soon as the hanging was over they buried the body right under
the gallows. The Harrisonburg students wanted the body and were determined to have
it if they had to fight for it. The Staunton students took up the body as soon as
the people had gone and hid it in some MWaa#KEX brushwood, The Harrisonburg students
after having searched for some time found the body, put it across a horse and went
four or five miles around and on the We. side of the town and hid the body in Mr,
Gibbon's tan house, Afterwards the body was taken to the log house where I went to
school, where it was there skinned and tannedeese" MY RECOLLECTIONS OF ROCKTOWN,
NOW KNOWN AS HARRISONBURG, FROM 1817-1820, by Maria Graham (Koontz) Carr; Published
for the Okd Mill Stone Antique Shop, Harrisonburg, VAe, no date, pp 26-27.

"Staunton, Vire, Oct. 28, 182). = Hudson Sprouce, whose removal from Charlottesville
to Harrisonburg for trial, on the charge of having murdered Susan Sprouce, we
noticed in our last paper, has, we are informed, been convicted of the crime, and
received the sentence of death. He is to be executed in “arrisburg, on the 10th of
December next. The last Rockingham paper relates a melancholy occurrence, which

has grown out of the removal of Sprouce to that town, From the character of the
prisoner it was deemed necessary to place a guard over him at the jail. A centinel,
on duty, rather full of the importance of his business, hailed on Saturday evening
the 16th inst. two young gentlemen who were on thir way to Methodist meeting, and
bringing them to, under the point of the bayonet, commanded them to 'mark time,!
Considering the conduct of the centinel as nothing more than a jest, the young
gentlemen carelessly replied they would 'mark time’ to the Meeting-house, and arm
in arm, turned up in that direction, While crossing the street, they were ordered
several times to stop = but not obeying, the sergeant of the guard commanded the
centinel to fires which he accordingly did, and unfortunately, lodged eight buckshot
or slugs in and immediately above the ancle of one of the gentlemen, Mr, William |
McWilliams, The R,gister observes that "the wound was of a dangerous nature,’

and it was not certain whether amputation might be dispensed with, The sergeant,
George O'Ferrell, and the centinel, Edward Newby, were committed to jail, Since

the above was in type, we have been informed that O'Ferrell ang Newby were tried on
Monday last before a Called Court, and ACQUITTED." COURIER, C arleston, South
Carolina, 11-10-182) (272.0


TUESDAY, FEBRUARY 2, 1993

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aL oe BY KEN BENNETTFOR THE WARHIRIGION POST
Charles S. Stamper at Virginia’s Greensville Correctional Center, three months before his execution

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Rickey Ray Rector

ASSOCIATED PRESS

ASSOCIATED PRESS


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WASHINGTON POST HEALTH/FEBRUARY 2, 1993

| (yexecuted. Perry, a schizophrenic, was con-

eye Sm,
ae we ne 8 te we “OE ey

More of: a straitjacket. -There are knotty
| issues. Punishment is supposed to be a mor-
,al act, rather than just an act of coercion.
- That does require a certain status on the
“* part of-the offender. We want him to have
:-:. Control of himself, awareness of his actions,

. pawareness of his punishment.”." 2). -

.. Johnson said cases such.as. Bird's; Rec-

’tor’s,"Perty’s and Stamper’s raise doubts

:. ‘ Stamper’s attorney said he could find no
-~’, legal precedent forbidding an execution of a
_ disabled prisoner. He therefore. petitioned

Virginia Gov. L. Douglas Wilder for clem-

"were given clemency in Virginia during the
:1930s for physical impairments, . including
an invalid, an epileptic and a man with a
~ head injury. Another 19 people were given
- Clemency during this century for feeble-
“mindedness, Dohnal said. - ps

_ which was scheduled for October, and ot-
- dered an‘-investigation. After an - unusual

: cluded last month that he could: not over-
.Jook Stamper’s crimes. ©; - pate
“A spokeswoman for

ats

Stamper said: “I’m having a very difficult time accepting what has happened

Fs.

EXECUTE, From Page 10 "s+ bad a history of mental problems, he withdrew

; his plea of not guilty by reason’ of insanity and |
longer a danger to society. In a recent inter- — was found competent to stand trial, <2."
view, she contended that executing disabled =. - But after being convicted and sentenced to:

criminals “refutes all the ideas of people be-:,
ing so afraid of these guys and their future

dangerousness.” ER

u Rickey Ray‘ Rector,’ 40, who was exe- a
cuted by lethal injection in Arkansas in Jan-'>
uary 1992, despite claims ‘by his attorneys -
that he was mentally unfit. After killing a .
police officer in 1981, Rector had turned
the gun on himself, destroying parts of his
brain. As governor of Arkansas, Bill Clinton
denied a request for clemency after review-
ing the case. Courts ruled that Rector was
able to understand what was happening and

‘ Was mentally competent.

= Michael Owen Perry, 37, who has so far
avoided Louisiana’s death penalty because he
was found to be insane and incompetent to be ©

death, Perry was found not sane eriough. to be .
executed unless he ‘was-'given antipsychotic

‘Stamper had been ordered executed after
his ‘conviction for‘killing three coworkers in
“1978 robbery at a Shoney’s restaurant in
‘Richmond. A’ cook there, Stamper was ac-
cused of killing the assistant manager and
two other employees: shortly before. the
_, business ,was to open for breakfast.. About
‘»” $4,000 was taken from a safe.

Testimony at his trial showed that Stamper

«Victed of murdering his mother, father, neph- went on a spending spree after the killings,

‘

“Few” and’ two cousins in 1983. Although Perry

“Death is death,” Johnson says. “There is
no sort of variation in the death penalty. It’s... . payiti¥ an outstanding jewelry bill, Paying his .

about: whether their executions are “vio- -
- lence, rather than punishment.” °°." * *..

ency. According to Dohnal, three people :

“, Wilder postponed Stamper’s execution, ©

. 12-week medical investigation, Wilder con--.

_ him into the chamber. ... . .

rent, making a down payment on a watch and

’ visiting a local automobile dealer:

The crime was not Stamper’s first. He was
paroled in 1976 after serving time for shooting
a gas station attendant in the-head during a
1971 robbery in Richmond. According to court
records, the injury permanently impaired the
victim’s walk, speech, hearing and sight, leav-
ing the man unable to work.

Hugo Adam Bedau, a philosophy professor
at Tufts University, has written extensively
about capital punishment. He said Stamper’s
condition was worthy of consideration since
his “capacity to endanger others was either
zero or very slight” and because the State had
a serious: moral obligation to Stamiper be-
cause he was injured while in custody.

‘He also argued that Stamper might de-
serve clemency because of sheer pity. “Be-
fore we took the politically correct view
toward the physically impaired, it used to be
correct:to pity people who were in this con-
dition,” Bedau said. “It seems tome that
we're.a little less than human if we don’t
even consider that argument.”

-; But among those who disagreed is Peggy

Bendrick, 68, from Richmond, who frequent-

ly lobbies state legislators on issues concern-
ing rights of the’ disabled. In this case, she

called Wilder’s office ‘to say Stamper de-
served no special consideration. Bendrick,
who has been a’ paraplegic since an autorno-
bile accident 28: years ago,. contended that
Stamper’s pleas were nothing but “baloney.”

‘Tm willing to fight. like heck for anyone
who deserves it,” Bendrick said. “He annoyed

: me. He was using this disability without jus-
.” tification, He -was judged before he. ot. hurt.

_.And even if he had been in a wheelchaifat'the

a

© time of the killing’ I would still say go for.
- ward, It’s irrelevant to the issue.” *&":

. Russ Ford, the prison chaplain Who'.coun-

_seled Stamper and hugged him just’ before
‘¢ his execution, said Stamper wanted ‘to walk
“to the death chamber with the “aid ‘of ‘his

walker and braces, but prison officials’ de-
nied the request. Wayne Brown? the pris-
on’s operations officer, said that officials did
not believe Stamper had enough strength to
make it to the electric chair, and they

feared that his legs would go into spasms.
He tried to walk anyway. Three corrections
officers surrounded him, one at each side and
one directly behind him, and they attempted to
keep his feet to the floor as they half-dragged,
half-walked him into the chamber. But they
abandoned the idea after Stamper’s legs went
into spasms, They lifted him up and carried
oe 6 Wee _


BY BILL MILLER

or those opposed to capital punish-
ment, it seemed an especially grue-
_ | some spectacle;:three Virginia cor-

_ rections officers ‘carried a disabled
prisoner. front his ‘cell and into the
death chamber. at. the ‘Greensville
. Correctional Center in Jarrett,
where they placed him in the élec-
~ tric chair at 11 p.m:Jan.19. |
_« There, Charles Sylvester Stamp-
er, who killed three people in a res-
taurant robbery, became the first person -in a wheel-
chair to be put to death since the Supreme Court ruling
in 1976 that reinstated capital punishment. Because of
his disabilities, which resulted. from. a‘ prison fight, his

case generated national attention and debate about ex-

ecuting the infirm.

Whether for or .against capital’ punishment, those .

who follow death penalty cases said Stamper’s death
forced people to examine the underlying ‘philosophies

behind executions: that the condemned. are killed in:

retribution for terrible crimes that take. away life; to
eliminate the potential for future danger; and to serve
as a deterrent to crime in-the community. get

Those in favor of capital punishment said that justice
was done in Stamper’s case on all three fronts. But op-

ponents of the death penalty said Stamper’s execution. —

was purely retribution. The symbol.of using the death
penalty to execute criminals loses its effectiveness
when the condemned are disabled and pose little future

threat, they said. °°

“There's no.legitimate reason: we have other than ven-...

geance to kill this person,” said: Marie Deans; director of ° *

the Virginia. Coalition on Jails'and:Prisons, a group that °

works with prisoners and opposes ¢apital punishment.

inmate on Virginia's death row,.He suffered a severe spinal

ily paralyzed in September 1988. ~
after he was thrown: to the-floor:in-a fight“with another . ~

injury that left-him unable to: walk, except with the aid of .

leg braces and a walker, and’ then. only for a few shuffling --...:

steps. He was unable-to’ stand without’ support and lost
most of the movement in his righthand. ©

“Where does it stop?” asked Kica Matos, research’ ”

director for the NAACP Legal Defense and Educational.” ;
Fund’s capital punishment project, “Does he have tobe  *

a quadriplegic? Does he have'to have both legs ampu-

tated? How much more inhumane can we get?”
Many death penalty supporters, however, argued that
Stamper’s medical ‘condition was: irrelevant, especially in
light of the circumstances surrounding the injury.
“He’s not being executed for being disabled. He’s
being executed for killing three. people.and damaging
the lives of the families of all the.victims,”:said James S.

Gilmore, .the .commonwealth’s. attorney: of Henrico.

County, where Stamper’s case was tried.“I take no joy
or glee in executions. I don’t. But you have‘to hold the
line. It’s the absolute reaffirmation of civilized behav-
ior, of civilized standards in our. society. Otherwise,
anything goes.” ;

Had Stamper been given clemency, he said, it would
have been an invitation to others on:death row to at-
tempt to disable themselves to avoid execution. .

Other prosecutors shared Gilmore's. view. “One of

the reasons for the death penalty is so that society
doesn’t have ‘to maintain these people for the rest of
their lives,” said-Paul B. Ebert, commonwealth’s attor-

ney-of Prince William County. “A physical malady, to.

‘my way of thinking, favors the death penalty.”

... The families of the three people Stamper killed also

‘were united in calling for Stamper’s death:

‘Treating the Condemned ©

Executions tended.to be state concerns until the late

“1950s, when the ‘federal courts began intervening. A .

series of Supreme Court ‘rulings in’ the 1960s and

Wy ae

Since the restoration of
| the death penalty 17. |
years ago, the physical.
| and mental health of
~ condemned prisoners
has been a key issue |.
inthe debate over =
executions.

oe A cet dpeys - ety
fee i

robbery. News accounts

4

“ple ina 1951

“It doesn’t happen that frequently,” said Watt’ Espy,'
~.who keeps files’ of ‘thousands of: executions, dating ‘to'

_ 1608, as director ‘of the Capital’Punishment Research

- Project, in Headland, Ala: “But it’s not unprecedented.” "
Since the restoration of the death-penalty 17 years ago,

been a key issue in the debate aver executions; *' °°"
». The.U.S. Supreme Court has barred the execution of

‘the physical and mental health of condemned prisoners, has

the insane, saying. that it: violates the’ Eighth Amend- -
- ment’s prohibition*of cruél’and unusual punishment: It’

‘has not barred the: execution of:the mentally retarded,
-although it ruled that retardation should be considered
at sentencing: as:a mitigating factor. ee
=: Dennis ‘W. Dohnal, Stamper’s attorney, said he found
-no. legal basis to argue‘against executing the physically
disabled.: But he .believes. the state had an ethical re-

=by:a gunshotifired by police after he had killed two peo- |:

said his lawyers .Hard Cases

lost an appeal based on his physical condition. «°°"": °""

uit sponsibility to cancel the execution because of Stamp-
> er’s physical health and because his injuries were sus-
’ ~ tained while in prison.

“If ever there was a situation for mercy, surely this
was the premier example,” Dohnal said last month.
“The idea that, ‘Well, they shoot horses with broken
legs, don’t they?”—I thought we were beyond that.”

Stamper’s is not the only recent case with unique
medical circumstances. As their appeals work their way
through the process, condemned prisoners grow old
and can become ill. As a result, a significant number
become mentally or physically disabled while in prison.
Stamper was the 190th prisoner executed in the United
States since 1976. But 61 others died of natural causes
while awaiting their execution or killed themselves,
‘according to Matos of the NAACP Legal Defense and

in- —- - Educational Fund.

. But the health issue can put states in the awkward
“position of rehabilitating prisoners so that they can be
- killed. For instance, Stamper was bedridden for nearly
_a.year after his injury and went through therapy to
..learn to walk again.
In an interview last fall, Stamper said he appreciated the
“ medical assistance. “There were so many of these people
who had worked with me on the medical staff since my
operation, when I could move nothing below my neck,” he
said, “They shared in the battles I overcame. I thought that -
some of these people on the medical staff were as happy as
I was when I was able to first sit up in a chair. My cast was
taken off. My brace was taken off my neck. I was able to
function with my left hand and do a few things on my own.
The less I had'to call on: them, the more I felt I had some
reason to continue on. At first there didn’t seem to be any
..* purpose to it”. .
.”. Eventually he was able:to.light.a pipe, play comput-
“>).,erized:chess games and attain:a small degree of inde-
“~~ pendence—factors that he believed ultimately were
_ used against him when the state decided he was healthy
_/ enough to kill, - ar a
“ic “I’m having a very difficult time accepting what has
.:,, happened to me,” Stamper said last fall; “and-I’m pretty
.., Close-minded about the fact that‘J’ve-exceeded what

',2,gould be termed punishment by’

. According to Espy and.other -experts on the death
_ > . penalty, Stamper ‘was ‘one ‘of: four disabled prisoners
"++, Whose cases have recently: generated controversy. The
_ others are:. nom ty! wht : help et ®
:.. @ Jerry Joe Bird, 54, who was put to:death ‘by lethal
:injection: in: Texas in June.1991,°eight-days after suf-
ering a stroke in-his prison. cell. ‘He was denied a com-
‘ mutation.or postponement because ‘of his health. Bird
~ oc, had been on death row in Texas for ‘17 years, convicted
of killing an.antique-gun collector. during a burglary at
the victim’s house in Harlingen, Tex.
__ Eden Harrington, a lawyer who handled Bird’s case,
said the stroke left Bird’s right arm and right leg partially
. paralyzed, caused his speech to be slurred and affected
his ability to think clearly. She argued that Bird was no

See EXECUTE, Page 12


/ BY FRANK GREEN ©
‘TiMES-DISPATCH STAFF WRITER

The prospect of a highly unusual
__ if not macabre —. execution in
_ Virginia apparently has the state con-

tending that murderer Charles Syl-
vester Stamper has. been faking, at
least to some degree, his need for a
wheelchair. Re we”

Stamper’s lawyer, Dennis W: Doh-
nal, said hewas told by officials this
week that the state is challenging the
severity of Stamper’s disabilities, ar-
guing, “that, in essence, he is faking
his condition to a significant extent.”

“Tt would be absolutely tragic if
[Gov. Wilder] were forced to make a
decision on his clemency petition

Joe 7 7 -

without the accurate. picture .of the
situation,” said Dohnal, who "met
with Stamper Thursday. ce

A corrections official confirmed
yesterday that the severity of Stamp-
er’s handicap is in dispute, but he
could not provide further detail. ~

Dohnal said that the | governor's
office requested information about

Stamper’s condition from the Correcs.

tions department via the ‘attorney
general’s office. i Pat)
A spokesman for Attorney General
Mary Sue Terry said yesterday that
“we provided factual information deé-
veloped in anticipation of litigation’
at the request of the governor's ‘of-
fee. es mes eer
“We are not advocates in the clem-
ency process and we take no position
in these matters which are exclusive-
ly within the governor's discretion,”

‘spokesman David Parsons said.

He declined to talk of the specifics
in the letter to the governor, other

- PLEASE SEE \NMATE, PAGE BSP

=

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as Friday, October 23, 1992" e°

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néuncement sickening.

“Charles Stamper should go and _

éXplain to my child why his grand-
mother’ s not here,” said Janice L.
Johnson of South Richmond, a daugh-
tét of Ms. Hicks. “He’s pleading for
mercy because he’s in a wheelchair.

‘Tfhe hadn’t done what he done, he

wouldn’t have gone to prison, and he
wouldn’t be injured now.” —

«But death-penalty opponents had
condemned the scheduled execution
as, barbaric.

“Imagine the notion of making the
death house wheelchair accessible,”

said Leigh Dingerson, executive di- -

rector of the National Coalition to
Abolish the Death Penalty.

«Last week the governor’s offic
told Stamper’s lawyer of allegations
oh prison guards and medical work-

s that the convict was faking his
injuries.

B “The evidence available to me at °
. this time is neither clear nor conclu-.
sive,” Wilder said in yesterday after-
hoon’ s statement. “Accordingly, Iam -
sable at this time to reach a Tesolu- ~ - ape:

Gon: as to the actual 1 physical condi-

tion of Charles Sylvester Stamper.”
Wilder said he was ordering an -
night: “The attorney ; general. re-
lic safety, O, Randolph Rollins, aided-.
by the Department of Corrections. —
“For me, it’s just a period of wait-.
_ing,” . Stamper. said. “That still.
*doesn’ accomplish what I wanted to.
accomplish — vindication through i in- ©
, Mocence.T =,
The lawyer said he asked ‘Wilder

investigation by the secretary of pub-

Governor grants : Stee ay

reprieve for medical r review

over r to the governor’ $ ciice.

Attorney General Mary Sue. Terry
said’ ‘through her spokesman last .

Spects the governor's: judgment in.

’ these. matters.’

for the medical examination after be- -
ing told about the allegations that

Stamper “was not as disabled as we
have indicated.”

“When. I told Charles Stamper.

what was being told the governor, he

asked me to repeat it,”. Dohnal said.

s

“He couldn’t believe it. The dumbest
thing I could have done for my client
is to exaggerate.”

- Dohnal ‘asked for a stay esterday
morning after he found out the medi-

cal report wouldn’t be available. until
Monday.

Dohnal says he won't: file a court.

“appeal,: but death-penalty opponents
. ‘could’ ‘intervene on Stamper’s | behalf.

“Marie O. Deans, executive direc-
tor of the Virginia Coalition on Jails
and Prisons, hopes yesterday’ S an-
nouncement is:a ‘first: step: toward
Stamper’s winning life ‘in. Prison.

“I know there had been input Gin
minor players: at the [Corrections
Department] that he’s: malingering,”
she said. “I felt like if we:could get

“information ‘to the governor about:

Charles’ physical ability — really his
oe. oa he — arant. ——

cy.”

Stamper’s - prison — ‘and medical re=°
cords in preparation for a court fight .

_if Stamper were to file a Jast-minute on

An “execution | in Missouri on
Wednesday night was the 26th in the
‘US. this year — the most in any year

State officials had examined Since 1962.

Stamper’s electrocuition would be
Virginia's: third i in four: sg An- :


7Y¥ INMATE FROM PACE B1

‘than to insist that it was “factual
©information.’”

“Tf you are saying we are trying to
oipfluence’ the governor’s decision,

«the answer is absolutely not,” Par-

sons said. :
.__ Capital punishment opponents be-
eve that if Stamper is executed as

scheduled Oct. 28, he could be the g

efirst inmate rolled to the electric
yghair in a wheelchair since the reim-

position of the death penalty in the

;gUnited States in 1976.

-\ Virginia Department of Correc-
;¢ions officials said last month that
=;ntamper would be wheeled to the
~ Chair and lifted into it. However, soon

after that, corrections officials said
olthat was not correct and that no deci-
2Bion' had been reached concerning
etthe way Stamper’s execution will be
X handled. 4

~ Dohnal, in Stamper’s clemency pe-
ufition to Wilder, wrote, “He would
either have to be carried or wheeled
e:ynto the death chamber, or made to
isghuffle in with his walker.” |
s - A neurologist who has examined
_pptamper wrote in a letter filed with
the petition that “there is a disc her-
. Gee between the cervical fourth

~Spinal cord . . . which in effect causes

Mr. Stamper to be paraplegic without |
~taffecting “his” ability to feel pain: — }

ext “There are [those] who would say
vlthat the very caption of this petition
“(+ A Plea for Mercy — is hypocritical
“in that the victims of the subject
“iérimes were not afforded any mer-

cy,” wrote Dohnal in the appeal to
--Wilder.

“But are we to reduce ourselves to
that same level, given the interven-
ing circumstances which have inca-
ipacitated [Stamper] for the rest of his
inatural life?
| What would it s lize

d fifth vertebrae. compressing the |

system and our basic concept of jus-

tice to execute a virtual cripple?”

asked the petition.

Stamper, 39, was sentenced to die
for the March 1978 slayings of three
restaurant workers during a robbery

in Henrico County. He has been on

death row longer than any other in-
mate in the state.

_ He has abandoned his legal appeals
and his life now rests in the gover-
nor’s hands.

_Dohnal said Stamper was left part-
ly paralyzed by fights with two other
death row inmates, Lem Tuggle Jr.
and Wayne Kenneth DeLong, in
1988.

Dohnal said Stamper is a virtual
paraplegic but conceded his. client
can walk with the aid of a walker and
leg braces. Otherwise he has been
confined to a wheelchair for the past
four years.

Dohnal said that he understands
the state will allege Stamper has
been seen getting out of bed on his
own and that he has been able to turn
on his television set and other appli-
ances on his own.

“They don’t add that they’re with-

in reach of his wheelchair. His index

finger works. We have never said
that he is a paraplegic in the strict

_ sense of the word.

“He does have use of lower ex-

‘tremities if you call shuffling along in
that old man gait with a walker,” said

Dohnal.

, Dohnal said that “my impression
‘of the [state’s position] is, for exam-
ple, that he is able to accomplish
certain tasks. We do not dispute that,
but the more important question is
how he is able to complete those
tasks.

“For example, it is alleged that he -
can get out of his bed, or has gotten _

out of his bed, into his wheelchair '
without assistance. That is correct -

... he has been able to do that at
least in the past.

'- “But the way in which he accom-
plishes that task is even more telling,
not only in how long it took, but also
what all he had to do to accomplish '
that” including the use of an over- |
head device.

_ “When he was at Powhatan [Cor- |
rectional Center] he had a trapeze
above his bed and his bed was high

q

VO =| fe oe
in. Dispeteh

[{ich mond- Wg Tie

off the floor so he was able ... by
wiggling around and all that ... he’s
able to swing his legs out over the
bed. With braces on he’s to go down
on the floor and then the wheel-
chair’s next to his bed.

“It’s like the turtle made it across
the highway without adding that it
took him an hour and a half and he
got sideswiped a couple of times.

“That’s just one example of a myr-
iad of allegations all of which are to
the essence that for four years, since
the incident occurred that resulted in
his condition, that he’s been faking
Sag)


hi ile oP pewunahad

' HB Os
3 a

é
: .

" ~ TIMEs-DISPATCH STAFF WRITER
Six days before Charles Stamper was sched-

‘uled to be wheeled to Virginia’s electric chair,
_|he Won.a reprieve from Gov. L. Douglas Wilder
itoallow review of the convict’s physical condi-

tion...“ set ;
“““Pm ‘not pinning any hopes‘on it,” Stamper
said from his cell at the state prison in Jarratt.
“T-guess I’ve been here too long. I’m happy,
‘because the members of my family are going to
&. Wilder didn’t give’a-length for the stay of.
execution, - and said. the -medical information.

 Ridamod, Timer - Dente

np er gets reprieve for medical review

might end up making no difference in his clem-
ency decision.

The 39-year-old uses a wheelchair, wears
leg braces and takes 16 pills a day. He says he

feet at a time. :

’ His lawyer, Dennis W. Dohnal of Richmond, :

said that although Stamper is “not a paraplegic

in the strict sense of the word, he is extremely ~

disabled” as a result of a basketball injury
exacerbated by beatings from fellow inmates in
1988.

At the lawyer’s request, Stamper was exam-
ined for three hours Wednesday by a rehabilita-
tive medicine specialist. Photographs were tak-

4o/23ler

en, and:the specialist was expected to measure
Stamper’s ability to walk and stand.
The report is scheduled to be completed

. Monday.
can use only two fingers and can shufflejust15 .

The execution was set for 11 p.m. Wednes-

day. : wa
Wilder’s willingness to allow the tests — and _
-to put the execution on hold as he awaits the

results — is reminiscent of the 11th-hour lie-
detector test he let Roger ‘Coleman take in
May. Coleman, a coal, miner who went on

‘“Donahue” to proclaim his innocence of rape
‘and murder,. flunked the polygraph and was
electrocuted. ~ ©.

Messages to the governor were running 788

to 1 in favor of changing Stamper’s sentence to
life in prison.
In nearly three years in office, Wilder has

commuted two death sentences and allowed °

eight executions.

Stamper, who was a cook at a Shoney’s
Family Restaurant in Henrico County, was con-
victed of shooting three co-workers to death
during a 6 a.m. robbery in 1978. Stamper was
convicted on circumstantial evidence and says
he’s innocent. ee

Relatives of one of the victims, morning

waitress Agnes Hicks, called -yesterday’s an-,

PLEASE SEE REPRIEVE, PAGE A12 >

op “wed Wels

w/)


3TAMP ER, solomon, hanged Grayson Co., Va., Nov. 24, 1866

AS
NB 4 |e
YO\ OF 4S eS y
QBS Si p
Xs. RePaR y
SF,

eset
COMMONWEALTH of VIRGINIA
C. M. G. BUTTERY, M.D. Department of Health DIVISION OF VITAL —
COMMISSIONER JAMES MADISON BUILDING
Richmond 23208-1000 P. 0. BOX 1000

September 5, 1991

Mr. Watt Espy
Box 277
Headland, AL 36345

Dear Mr. Espy:

We have received your recent request for a copy of the death record for Solomon
Stamper.

A careful search of the files of the Division of Vital Records has been made,
but with the information furnished, no record of the event could be located
during the period of 1865, 1866 and 1868 in Grayson County. The year 1867 is
missing from that file. Death records between 1853 and 1896 are on microfilm
and there is a $5.00 fee for each three-year search for each city or county and
$5.00 for a one-year search for three cities or counties.

It is possible that the event did not occur in Virginia or that a record was not
filed at the time the event occurred. We are required to charge a fee of $5.00
for making a search of the files whether or not a copy of the record is

furnished.

We regret that we cannot be of service to you in this matter.

Sincerely,

ALO RLY”), Lo
Susan B. Hayes
Supervisor
Information Services Section

VP:cl

NOH

Vegi Depariment of Heath

ey 4

SSA
FICATION OF
SaaS

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF HEALTH - DIVISION OF VITAL RECORDS

COMMONWEALTH OF VIRGINIA
STATE BOARD OF HEALTH

“ene 21160.

give its NAME instead
of street and number. }

Residence se:
In City sesso VPS. cnseseeee MOSf.. | Days...

‘MEDICAL CERTIFICATE OF DEATH } §

“

~ "116 DATE OF DEATH -

Jet ge IDS o.

7
.(Day) (Year)

PR 4
in

1915,

7

02 ey,

“ge COUL:

Contributory.
(SECONDARY)

ra ii ae uration) yrs mos.. ds.
(Signed). WAIL a M.D.

e “ ; Bept, 17, 191D adeeddl4 N, 5th _streets

*8tate the Diseask CAUSING DEATH, or, in Ceaths from VIOLENT Causgs, state
(1) Mans OF INJURY; and (2) whether ACCIDENTAL, SUICIDAL or HOMICIDAL,

079 eho a

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ATE OF BURIAL
fos ef ADDRESS, 4
© LOCAL REGISTRAR _Y

——— > eT oD

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This is to certify that this is a true and correct reproduction or abstract of the official record filed with the
Virginia Department of Health, Richmond, Virginia.

ea Ji 5 Raabe

Russell E. Booker, Jr., State Registrar

AUG 49 199)
Any reproduction of thi document is prohibited by statute. Do not accept unless on security ‘paper with seal of Vital
Statistics clearly embossed. Section 32.1-272, Code of Virginia, as amended.

EOE (ANY A <7 RATION 0

4. "2,


-—..

- aE

STANFIELD, sherman, black, 1%,

—s

.
canary sae ee

Negro Old Not Confess Crime Before

.
*
¢
?

sR LT nn neni

~SFANFIELD ELECTROCUTED. |

mermretenneegges’

Dying Yesterday.
' Richmond. Va. Sept. 17.—Sherman |
‘ Sianfield, a negro aged #2 years, went
to the electric chair at day break this
“morning in the penitentiary and paid |
iwith his life for an infamous crime of
iwhich he was convicted in Chatham fn |
' August. He spent the night praying ta |
ithe death house and his stoic nerve!
iaever left li from the moment he!
‘was called for by the wardens, until
he was strapped into the oak chair in|
ithe electrocution chamber.
| Stanfield made no confession today.
‘Major Wood said this afternoon that
‘the last time he talked with the be:
igra he declared his innocence.

' Stanfield was convicted at the last
‘term of the County Circuit Court of
‘brutally mistreating Elizabeth Collie,
a six-year-old girl, and thé daughter
‘of Mr. and Mrs. Ewart. Collie, promi-
| nently connected throughout the coun-
ity, and living near Kentuck. He escap-
‘nd after committing his crime. but

ee

dapree days inter Te was picked up BY,

fa farmer near Laurel Grove, who
‘found the youth hungry, and who plac-
ed him under-arrest and delivered him

i te-the local authorities...Stanfield was

was taken on an afternoon train to
, Lynchburg where he remained fo jail
; Up unti! the time of hia trial at Chat-
‘ham. The negro fold different ver-
sions of the affair. The ‘firat was a
confession, but Jater- he denied it. -

re in jail here for a few hours and

elec, Va. (Pittsykvania) 9/17/1915

its aaa Se nen
ee Deatties G Neat, black, 18, hanged Portsmouth, : Virginia, ink 13.1902

»

|
“BP yfeantime Rev. T.-C: Campoell: Pie aot
the Third Colored Baptist Church, and the = |- a gi
Rev. &. C. Copeland, of Gilmerton, had - ST BACK | ANGED
freee ye arrived at the cell of the condemned man- | f- ?
aa ee aT wed ot he Pic Srbekeme ne me? [Pott tm ok eh :
baker 3 ; “es “<4 et * ‘ Rev. Ps . Jorman, ro 9 from First ¥ 4
Oe. Ey dal ses foeontit reply. to “their quessigne. - onel
eo ely eta eet ait, . @ Stanback,: in x! |
aI BS Si ae, OG eS . woe, g . anil that h ian, and tha -, Joffered a brief, fervent prayer for the soul
ey Er al 10:35 O'clock. } wan prepared to t i The hymn, _ jof the condemned and left the scaffold.
ar pegs Ge ; hy Am a. Child” was then While the straps were being fastened
| Pte . . sung, the prisoner. who: a ine te legs; feet and arms Stanback’s
eRe ams Fi 2 ae Sentence Carried Out Witheat Hitch. Cotte voice, joining ia heartits. although bis art on idly in prayer. Be did not
spake toe oo Penalty trembled. nervously. in ey - | cease to pray as the noose was ced over
eMeioe omecd Men Pore Jest for ised with unshed tears, but be 3 his head and the knot adjusted. Then the
Ae peek aes fis Helnens and Cowardly very straight a i t. fblack cap was slipped over his head an.
ape oe Crime. « The Rev. Norma ben read the i there was a click,
+t " onesie , “The Lord ia “My & and the
SO at . ‘ Want.” The Rev. Campbell th red y the six
Sa Neab Stanback paid with his life this - for the nalvation of ft) foot drop brea : . . oR

morning the just penalty of the law for the was shortly to die. rey dence by the short

" . MAY n of-the prayer the =| There was only a convu

heinous crime of an attempted bine Jeaun is Mine,” dtwo and the body spun around, to all ap-

axsault upon aged Mrs. Pruefer. sane exe : ai knew. all thé—-J pearances lifeless.

wan entirely succen+ful. Society has, v ‘ mg heartily. ° He The crowd followed the attending phyni-

by the gallows, been rid of a misepent anil cell at the end — | cians. Drs. Hancock, Holladay and Jarrett,

vicious life. of the last se returned with &- Jto the foot of the scaffold and crowded
hymn book, anded_ the inthis- ‘| around ax they felt the pulee of the victim.

‘The trap was sprung at 10:35 o'clock, and : ters, turning to the singularly appropriate — At 10:45 they pronounced stanback dea‘

cution

Eee a RENO rhe n minutes later the physicians pro- wlection, “Tord. T Am Coming Home. atel a few minutes later the body was cut’
oe eee Sigrisherts 2 Lead nounced life ex' Stanback’s neck, was The scene was intensely dramatic, #4 the | down and turned over to Copeland. the
: mee eet) broken, according ° “HT man whgee time on earth was measured by = fy olored undertaker, who removed at to the |
ey The short time a: few. more ticks of the. clock . begged | hine of the boy's parents.

ke
t

Cg ihe commission of t * he himself leading in | Leek
- cution of the manda of the bymn.. —_—_-_ ;
Segh nificant. of the fact t
sition on: the part
State to permit un
and execution of assailants ©
encourage. the. people to. take the law. in near them.
|

their own hands. +
The prixouer executed today has himuelf

oad repeatedly wtated that he deserved hin fute, “Ni only Rope,
my - Stanhack passed rertfully his last night me.” Then the
aoe sega rem. AED earth.and awoke thin morning refreshed well, after Rhenf ¢
‘ oy and? with a gol appetite. Hie breakfast death wufrant, to which 8
Ma} wan nent in from « nearby restaurant, an'l without a tremor. “Trust in the Lord, ate
he ate it with evident relish. truat in. the Lord,” the ministers nad, ‘s
Hin family having taken leave of hin “May God blese and restore you.” % i
some. days Age, hin sweetheart, Tndians The wonts of — the benediction were F ‘ Senne
Wolford, wan the last of those he had fi spoken -ax_the Rey. Campbell, who was to” ‘ Rs BAS
P55 Ps cen Bor known bent, to see him, fe OES accompany the condemned to the scaffold, CMs hee
Be Soh Se Kem / She was permitted to visit him in. his took hin place at. the head of the littl
as Ay te cell lant. night and. this morning she. was: prareantin That warqickiy Torinet— ta TC
si RE be gid there to give him her farewell before th? were Sheriffe Cromwell ad Tawler and”
sia Leas ee ucag e officers of the law arrived to summon him Stanback | between Deputy Sheriffs Uuy-
paper to the wcaffold. ~ Bi bert: and Carmine. :
pu yo At 9:30j0'clock git witnesses of the af- Stanback marched with a firm tread and
fair began to arrive at the jail. They were euiled ae he went dawn stains, _naying ”
kept on the ground floor. The members of gvod bye to all the prisoners he }iineet. He
, the press were ausigned to a little balcony emerged rou. the lowec door witha buogs
Rae pee ee ge Re overlooking the scene of execution and just ant step and did not lineh in the presence «*
‘3 ites pe Oey Seog ae outnide the cell of the condginned.” of the gatlows. Ile aweniled the atepa be- i
EES ES, a At 10 o'clock Sheriff Crofhwell,. of .Nor- wayinig no further evidence of nervousivéed me
eam folk county, and Sheriff Lawler, of Nor-.° Ml than a groping gesture as he felt for the” Rad ena
folk city, had finished the final texts of the pougle caching of the elairway, He took a tien
Te Singh SAG Fae bay PE engine of death, and had adjusted the rope: seat va the waflukd for a moment, arising :
eters ee an around the crossbeam. They then repaired to take his pdace on the trap. hae 3 F :
5 ee eee to Stanback’s cell, where he was being a8- With uplilted baud be (hen said la oe ts Aree:
: siyted into a new suit, shoes and freah «birt strung, Clear voke: “My frieuds, Hf re:
| and low collar, by the prisoners who have Til and sveryhoty here, 1 went you all to tehe -* :
been very kind to him during the month” Tl thie warning aad: Me He :
rhe has paswed nince he wa sentenced. A Lrought me to * :.
eantime on every adjacent use’ i * ; :
toms ric ane of the seaold sould | Loppy beme obere.” Bor. 6 : st
crowds were gathered, although the I 7 : : “a ae aes
} enclosure around two sides of the gallows "{Csatiaved ta Savant Pela.) rake:
d revented-them from: seeing the- details of-- aah
the execution. County street was thronged
and the vacant lot on the north of the jail
wan alwo filled with many colored people. :
The: police force ‘was on* duty about, the. ;
Wuilding, but they had no disorder to com:
weet. + ,
Provided by W.
Walter Eqmonds, Cl i
rk of C
: ) Circuit Court, Portsmouth, 4-15-1985


oe
~
‘

B6- THurspay, SEPTEMBER 28, 1995

THE WASHINGTON Post.

le Governor Is Condemned Man’s Last Hope

B bitsbin
Fo hemes ¢

Associated Press :

JARRATT, Va., Sept. 27—The -

U.S.:Supreme Court refused tonight
toistayithe execution of Dennis W.
Stéckton, two hours before he was
scheduled to die by lethal injection.

‘Stockton, 54, convicted of the
1978'murder-for-hire of Kenneth
Armder-in Patrick County, Va.,’ was
scheduled ‘to be executed at 9 p.m.
at: “Gréenville Correctional Center in
Jarratt:

“{Sfhékton’s attorneys sought to de-
lay: thé execution so they could pre-
sehit ‘affidavits that they say prove
arigther man killed Arnder. The Su-
preme Court issued no comment in

efusing, on an 8 to 0 vote, to grant

a shay , Said Don Harrison, a spokes-
man-for the state attorney general’s
Office, *:

‘That left clemency from Gov.

Coane Allen (R) as Stockton’s last
hope:

eir affidavits, attorneys for.

Randy-G. Bowman say their client
killed Arnder. They have presented
affidavits from. Bowman's ex-wife,
his: 5 Son. and. a former friend saying

that iakein bragged of killing Am |
der.
Prosecutors. said: Stockton: Killed

_Arnder in Patrick’ County, then

moved his body across the state line.
to North Carolina, In 1983, Bowman .-
testified that. he heard Stockton
agree to kill Arnder for $1,500. The’
man who allegedly offered Stockton _

> the deal was arrested but’ never”
tried.

Arnder was killed mometinie She
tween July 20,,1978, ‘when his moth-
er last saw him alive, and’ July 25 of
the same year when his body was
found in a remote area of Surry

County, N.C. He had been shot in

- the head and his hands had been sev-

ered above the wrists, sometimes a
sign of a drug-related killing.

On Monday, U.S. District Judge

Jackson Kiser ‘issued a 60-day stay
based on Stockton’s. affidavits, but
the 4th U.S. Circuit Court of Ap-
peals in Richmond overturned the
stay Tuesday night.,

The three-judge appeals panel cit-
ed another affidavit, from the sheriff

of Surry County, saying that Bow-

et 4

ASSOCIATED PRESS

Attorneys for Dennis w. Stack, convicted in a 1978 murder, say they: have proof another man committed the crime.

man was in jail there wien Amder
was slain. i,
The appeals s icges questioned the:
credibility of Bowman’s ‘three accus-):/
ers and noted that’ their statements: .
had not: been. subjected: to: cross-‘
"examination and were not eyewitness ‘

- argument 12 years after his trial.

‘ment “reflects a formula for eleventh-
- hour relief that is increasingly com-
_ Aon in apical cases. =

accounts. :. They also noted that Stock-
'- ton’s attorneys were presenting’ their

The court said Stockton’s argu

"ath ininate stays on the part of

the federal court represents inter-
‘ference with the orderly processes
“of justice, which should be avoided
“in. all but the most extraordinary
circumstances,” the appellate court —

nage said.

yg

a Man Faces New

| Allegation Surfaces as Suspect Is Jailed for Probation Violation

* ..By John W. Fountain
Psat Washington Post Staff Writer

A convicted child molester arrest-

ed this month in Fairfax County for

Smith made his decision after As-
sistant Commonwealth’s Attorney

Raymond Brownelle :argued that ©’

Walsh remains a threat to the com-

munity. As long as Walsh is an the |

d Abuse Charo

irae Se ae teat
dh Oe

‘tempt to have any contact. with mi-

SL
said last night that the sheriff could
not be reached for comment. +
The alleged Warren County inci-*
dent occurred in June 1992. In

tambhar 1009 Wein ...

bu his probation.”,

MacMeekin; a. »Greenbriar. resident’
testified that she had seen Walsh

"jail time, ad’ 4 Smith, ‘wn did not
mention the Warren « county charges, ‘+.
:\-“Mr, “Walsh; we're .almost’ atithe }'
- ‘end of the string here,” Smith said. | JU).

‘He told Walsh that: he is “not to: ate | a &

‘tors. That:is’a continuing condition’

<." , sAtvyesterday's hearing, Pamiaty fo bs

: Thiof Fires Shots

Of Soda Truck

system:

D.C. De

Gaffi
May of
conspir:
other d
commit
continui
will not

From
said, G:
work o:
guards 2
and cari
prison.

EXECUTION: Virginia executed Dennis Stockton, 54, by in-
jection for the 1978 murder of Kenneth Arnder in Patrick
County. A federal judge ordered a stay to study claims that
someone else confessed, but an appeals court overturned it
saying “last-minute stays” by federal courts are an interfer-
ence with the orderly processes of justice, which should be
avoided in all but the most extraordinary circumstances.

WRONG-TURN SLAYING: A fourth reputed gang mem-
ber was charged with murder in the death of Stephanie Kuhen,
3, whose family’s car was shot up when it mistakenly turned
| down a gang-dominated Los Angeles street on Sept. 17. The 16-
year-old suspect was charged with murder and five counts of

attempted murder. Three others were charged Tuesday. a

ee

ri

| SP

Virginia executes
hired assassin 9-28
JARRATT, VA. A man convi b of a
murder-for-hire plot was executed by
lethal injection Wednesday night, be-
coming the'300th person put to death in
the United States since capital punish-
ment was reinstated in 1976.
Dennis W. Stockton, 54, was con-
_ victed of killing Kenneth Arnder, 18, for
| $1,500 in what police said was a drug-re-
Compiled from Examiner wire reports

4 Ne dell, ai ROOM. alin pete ae .

LATimes”

Oy ¢ w

FRIDAY, SEPTEMBER 29, 1995 Aaa

7

Virginia Killer Executed

JARRATT, Va.—A man who
killed a teen-ager for $1,500 quoted |
the Bible before becoming the
300th person executed since the
U.S.. Supreme Court reinstated
capital punishment 19 yearsago.

Dennis W. Stockton, 54, was
executed by injection for killing
18-year-old Kenneth Arnder in
1978 in what police said was a
drug-related murder-for-hire plot.
Arnder was found shot in the head
and with his hands cut off.

— Associated Press

| 6A+ THURSDAY, SEPTEMB

|

|

i a

ER 28, 1995 - USA TODAY

wl
Virginian Executed (x
For Contract Killing _ py

Jarratt, Va. — Dennis W. Stock- Y.
ton, convicted of committing a VY.
murder for hire, was executed last ¢
night by injection. re)

Stockton, 54, had been con; iN
demned for the killing of 18-year- 5

' old Kenneth Arnder in July 1978 in

Patrick County, Va. Police said he

ing for $1,500. Stockton’s attorneys
sought unsuccessfully to delay the.
execution so they could present af- Oo
fidavits they said proved that an- ¢
other man committed the slaying. y

- carried out the drug-related slay- 3

convicted killers whom Virginia
plans to put to death before the
end of the year. The string of exe- :

Stockton was the first of anal

cutions results from a new state
law, effective July 1, that acceler-

ates appeals. p A /7


/0-2-86
RICHMOND — State Su-
preme Court refused to halt
Friday’s execution of murder-
er Dennis Stockton. Federal
appeal was to be heard today
~ in Roanoke. - © i
C | jo 3-86
ROANOKE — Federal
Q judge gave, murderer: Dennis
Stockton, 45, 30-day stay of exe-

(1986)

cution set for today: oe,

=
aa A 7 Bh gia
bs PORTSMOUTH, — é ea

Contract killer Dennis Stockton


THE WASHINGTON PosT

WEDNESDAY, SEPTEMBER 27, 1995 D5

AROUND THE REGION

LL -

e-Bias Probe

vmmission

has dropped its in-
‘crimination allega-
les planning and
yery and Prince

ital Park and
‘r scrutiny in
ozens of em-
‘y branch of

3} minority
ited, ha-
stice of-
‘ter re-
‘ewing

3 and

The commission has 3,900 employees and an
annual budget of $167 million. It abandoned seg-
regated restroom, lunchroom and changing
room facilitates after eight black employees
complained to the federal Equal Employment
Opportunity Commission in 1974. The commis-
sion signed an agreement in 1977 with the
EEOC to increase hiring and promotion of wom-
en and minority group members. \

Va. Inmate’s Execution to Proceed

w A federal appeals court in Richmond last night
ordered the execution of Dennis Wayne Stock-
ton for a murder-for-hire to proceed as sched-
uled tonights

The 4th U.S. Circuit Court of Appeals over-
turned a stay issued Monday by U.S. District
Judge Jackson Kiser in Roanoke to hear new evi-
dence in the 1983 murder conviction.

Stockton is scheduled to die by lethal injection
for the July 1978 murder-for-hire of Kenneth
Arnder, 18, of North Carolina, who was found
shot in the head and with his hands cut off.

Stockton’s attorneys had urged the appeals
court to leave the stay in effect. They also met
with members of Gov. George Allen’s staff to
argue for clemency.

“We had an interested and receptive audi-
ence, and we hope the governor gives us full and
fair consideration, as I’m sure he will,” said An-
thony King, of Washington, one of Stockton’s at-
torneys.

Stockton is confined near the death chamber
at Greensville Correctional Center in Jarratt, in
southside Virginia, where the state’s executions
are carried out.

Incumbent Quits School P~

a One of only four incumh
Fairfax County Schoo! ”
the race.
Thomas '
public?”
Ty.

|


SSN

SELES ERTL CF NICO EQRQAAAGAGY

We
’ .

¥ .

By Hugh Robertson b [of 4 7
News Leader staff writer
» Timothy W. Spencer was sentenced
today to death in the electric chair for
the 1987 rape and strangulation of
Chesterfield County teen-ager Diane
ho.
: The sentence was the fourth death
penalty Spencer, called “The South
Side Strangler,” has received.
; In pronouncing sentence, Judge
Jotin F. Daffron Jr. of Chesterfield
Circuit Court followed the recom-
mendations of a nine-woman, three-
man jury that found Spencer guilty
May 12 on a capital murder charge.
The jury took 47 minutes to decide
Spencer should die-for the crime.
- Spencer also faces maximum sen-
tences imposed by the jury of life in
prison for rape arid 20 years for bur-
glary.
“; -Miss Cho, a 15-year-old Manchester
High School student, was raped and
strangled shortly after midnight on
Nov. 22, 1987, in her bedroom in the
apartment she shared with her par-
ents and younger brother at 7501 Ga-
vilan Court. ,

In today’s sentencing, Deputy Com-
monwealth’s Attorney Warren B. Von
Schuch told Daffron that Spencer
should die because he is a continuing
threat to society and because of the
vileness of his crime.

Daffron said he agreed and im-
sposed the death sentence.

Spencer spoke briefly today, noting
the appeals of his convictions that
have been filed. He predicted he will
be back in the Chesterfield court-
rcom.

Spencer already had been convict-
ed and sentenced to die for the rapes
and murders of two South Richmond
women, Debbie Dudley Davis, 35, of
4520 Devonshire Road, the night of
Sept. 18-19, 1987, and Dr. Susan Eliza-
beth Hellams, 32, of 514 W. 3lst St., the
night of Oct. 2-3, 1987.

His first conviction and death sen-
tence was for the rape and murder of
an Arlington County woman, Susan
M. Tucker, 44, the night of Nov. 27-28,
1987. The attack occurred while Spen-
cer was on a Thanksgiving holiday
furlough from a South Richmond
halfway house.

_ In all four trials, Spencer was con-
victed largely on the basis of DNA

testing, a relatively new laboratory ,

Spencer sen

ee ate te

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nae
en
aoa Whe

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ae

ten

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to death fourth time

technique that matches body. fluids
found at the scene of a crime with
blood samples from the defendant.

Because of the newness of the tech-
nique, the question of allowing its use
as evidence is proving to be the basis
of Spencer’s appeals of the death sen-
tences to the Virginia Supreme Court.

Spencer’s trial for Miss Cho’s death
also relied upon DNA testing but on a
technique even more sophisticated
than tests used in the three previous
trials. County prosecutors initially
had thought that because of contami-
nation of a stain found at the crime
scene, the sample would be useless
for DNA testing.

Another unusual aspect of the trial
was the decision by Daffron that pros-
ecutors should have the opportunity
to introduce evidence from the three
previous slayings to show a pattern of
behavior. | 7
:, The four victims all were attacked
in their homes-bound, raped and then

‘strangled with such devices as belts

or cords looped around their necks. |
There also was evidence the victims =
had been sodomized.

Police believe Miss Cho was fol-
lowed to her home by Spencer after
he spotted her with friends that eve-
ning at nearby Cloverleaf Mall. Her
parents’ apartment is located in the
Chesterfield Village complex adja-
cent to Beaufont Mall across Midlo-
thian Turnpike from Cloverleaf Mall.

Miss Cho was strangled with a
rope, and her wrists had been bound
behind her back. Police believe the
slip noose around her neck had been

connected to her bound wrists.

The attack on Miss Cho was differ- ||
ent in one respect from the others. In ||
the previous murders, the three wom- |.
en all had been alone in their homes.

However, Miss Cho was strangled
in her bedroom just a few yards from
the bedrooms in which her parents
and brother were sleeping.

WANGKAV GON:


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_V DNA FROM PAGE BI

the seminal stains.
Dr. Kevin McElfresh, the scientist
who did.much.of the work on the

Spencer case for Lifecodes Corp.,.
testified, however, that he-and sever- :

al other experts, including a geneti-
cist who has since won a Nobel prize,

were aware of:the problems: identi-
fied by Spencer's. experts.

‘They nevertheless oatlided th that

Spencer’ S blood en seminal

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Jeffrey D. Ban, who oversees Vir-,
ginia’s DNA data bank, testified that
he had redone. the tests recently

43d009 NVTV Ad»

from photographs of the films. He

said he had no doubts about the. accu-
racy of the trial testimony.

_ Weinstein wanted Wilkinson to au-
thorize a type of DNA test that can be

done quickly and asked Ban . what
harm there would be in retesting. -
Ban responded that the test: sug-

| “gested is less reliable and provides

less detail than the type of tests that

were done: for Spencer’s trials.
Wilkinson ‘said, “I was not at all

impressed with - [the. testimony .. of

legislators have’ supported. measures

Spencer's experts] in light of the tes- .

timony I heard at trial. .. . There’s:no
question in the court’ s mind that the
test -was proper:”: —

Senior Assistant Attorney General

cer’ s behalf.

1994

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Spencer’ s plea for more tests
on DNA rejected by judge —

- gtains left it the murder scenes, -
. McElfresh said.

Donald’ R. Curry said Weinstein’ S
claim was “typical of what we get ina
lot of capital cases ... attempts to
create false doubts of guilt at the last
minute.”

He said the hearing Wilkinson held
over three days this week is “a prime
example. of the type of abuse of the
system and waste of taxpayers’ mon-
ey that would be institutionalized”’ if
inmates were given a chance to raise
claims of new evidence more than 21
days after they are convicted. |

Virginia criminal. procedure: now
generally bars such claims, but: some

to permit them.,

The capital representations “re-
source center, financed by -state: and
federal taxes, paid fees of as much as
$150 an hour plus travel expenses to.
experts it retained to testify on Pe ‘|

Y-~22- Biba i

— |


- Arlin

von

fO-/2 Det, Was

12g+ten

[0S 4-

lon Detective’ s Ht unch Pa

ys Off

in Cisadideticied Murder Case

< By Dana Priest

Washington Post Staff Writer

Something struck Arlington De-

~ tective Robert Carrig the evening

Old Department of Agriculture em-
~. . ployee, was found raped and stran-

_. -again,”
» < partner, Detective Joe Horgas.

_ » gled late last year.

“It’s Carolyn Hamm all over
he said, according to his

Hamm, a Washington lawyer who

HS, ~.- he inspected the gruesome scene ~
where Susan M. Tucker, a 44-year-

three years earlier and David Vas- —

quez, who had confessed to the.».
crime and pleaded guilty to second-
degree murder, had been serving a.

35-year sentence ever since.

This week, after hundreds of ©
hours of reexamining the Hamm.
case and at least 17 other crimes,‘

Arlington Commonwealth’s Attor-*
ney Helen F. Fahey said she.

planned to ask Gov. Gerald L.
Baliles to free Vasquez.
‘Fahey said she and police now

believe that Timothy W. Spencer, :

convicted this summer of murder-

See

ing Tucker, also killed Hamm. She
said she plans to ask the governor
for a conditional pardon, which al-
lows the Virginia Parole Board to
set provisions for his release, such
as supervised parole. It could be
months before a decision is made.
In July, Spencer was found guilty
and sentenced to death by an Ar-
lington Circuit Court jury for Tuck-
er’s rape and murder. In Septem-
ber, a Richmond jury found Spencer
guilty of another rape and murder,
and also delivered the death pen-
alty. He is awaiting trial for two

sony lived in Arlington, had been slain

similar slayings, and has said that
he is not guilty.

Spencer will not be charged with
Hamm’s death, said Fahey, because
of the two death sentences against
him.

Reopening the Hamm case,
which was built on bits of inconclu-
sive evidence and a statement Vas-
quez gave while in a dreamlike
state, has brought home to police,
attorneys and Vasquez the inherent
weakness of criminal cases built on
circumstantial evidence.

As Vasquez’s defense attorney,

1 |

Richard McCue, said yesterday af- “

ter reflecting on the actions of Hen-
ry E. Hudson, then the Arlington
commonwealth’s attorney who
prosecuted Vasquez: “At the time,

‘given the evidence, he had no

choice.”

Vasquez, 41, who is in prison at
the Buckingham Correctional Fa-
cility in Dillwyn, Va., said yesterday
he is happy with Fahey’s decision.

“To me, it feels like a dream,”-he
said. “It’s just hard and all. It’s been
hard on my mother. She feels like
she’s been in here, too.”

It may have been a dream that
got Vasquez so deeply in trouble in
1984.

Vasquez, who grew up in Arizona
and had lived in Arlington since
1962, was working at a McDonald’s
restaurant in Manassas when Ar-,
lington and Prince William police

_ Officers stopped by to question him

because a neighbor reported seeing
him near Hamm’s home on the
night she was killed, according to
court records.

Over the next two days, Vasquez,

See VASQUEZ, D4, Col. 1


Washington host

D4 Tuurspay, Ocroser 13, 1988

Va. Inmate:
‘Tt Feels Like
A Dream’

VASQUEZ, From D1

who was described in court as hav- ~~
ing low-level intelligence’ and was ©.
later examined by psychiatrists ‘to

determine whether he was -fit. to“
stand trial, gave Arlington police . .’
three statements about the’ slaying; ~~
two of which were ultimately’ ruled se

inadmissible in court.

Police testifying at a préliminary and
hearing in the case ‘said Vasquez *'|
told them he had killed Hamm. But" a
he rambled and seemed tobe in‘a~ “
trance as he recounted the crime to — *
detectives as if it were “a ‘horrible ee fl

dream,” court records show.

One detective testified that. he. had‘ *
asked Vasquez “to get himself ina |:
state where he can really think about | |
. force himself a little

the dream .
bit in order to discuss this dream.”

Other evidence included hair and 2
semen samples taken from. the .+|

crime scene. Although prosecutors

said they could have been Vas-.. |.

quez’s, tests -were inconclusive.

Fahey said this week that the blood. :*:|°.

type of the semen sample matched
Spencer’s blood type, which was

compared only after he became a |

suspect in the case.

Two neighbors told police they = |.

had seen Vasquez near Hamm's

house on the night of the murder.

and two days later.

Fahey and police said that in their : .
reexamination of the case, the wit- -

nesses stuck to their statements
and there was no. additional evi-
dence to refute their claims.

McCue said he and Hudson ne- -- 4
gotiated a plea the weekend before’ | °
Vasquez’s trial was scheduled ‘to*«

begin. The prosecution was willing’!
to drop the charges from capital :|

murder to second-degree murder,

and .Vasquez was allowed to main- | —

tain his innocence. ere

Vasquez said yesterday that he >
has forgotten the specifics of his
statement to police, or the refer-
ences to the dreams. “I was repeat-
ing whatever [police] were saying,”
Vasquez said. “I was all confused.
When-they started to talk about the
[death penalty}, I decided to go with
the plea.”

In the months after the discovery

_ of Tucker’s body on Dec. 1, 1987,
‘ police reexamined the evidence

used to prosecute Vasquez for the
Hamm slaying, this time reversing
their conclusions.

~‘Horgas and other: Arlington: de-
tectives began by checking police
records nationwide for unsolved
crimes that fit the pattern of the
Hamm and Tucker deaths: victims
strangled but no signs of a struggle, -
victims raped, victims’ hands
bound, purses robbed only. of cash,
anassailant and burglar who carried
a:knife and covered his hands with
gloves or socks.

«hey found two matching crimes,
one.in Richmond, the other in Chest-
field County. Then they discovered a
rape victim in Richmond who had
gotten a.look at her assailant. He.

wore a ski mask, carried a knife and

had rope with him, she said.

-“That’s when the light bulb goes
up,”. la recalled yesterday.
“We. knew . : what we were look-

ing.for.”:

Meanwhile, on Jan. 29, Timothy

| Spencer was arrested in Alexandria

for’ burglary. He had socks in his
pocket and carried a knife, Horgas
said.. The jacket he wore matched
thé description given by one of the
Woiiien Arlington officials believe
he ‘assaulted.

“Subsequent DNA tests of Spen-

_cer’s blood linked him to the Tuck-- |.
er slaying and one cot the Richmond vee

rapes.


Stay of Execution Denied

s A federal judge refused yester-
day to halt tonight’s scheduled ex-
ecution of a serial killer convicted
in the first capital murder case
based on DNA evidence.

U.S. District Judge Robert E.
Payne issued a written order deny-
ing the stay sought by Timothy W.

Spencer, who was convicted of -

four rape-murders in 1987.

Lawyers had argued yesterday
about whether DNA evidence that
led to Spencer’s convictions is suf-
ficient to send him to the electric
chair. The state said Spencer’s
questions about the evidence had
been resolved in previous appeals.

“This is a deliberate strategy,”
said Donald R. Curry of the state
attorney general’s office. “These
are claims that were exhausted a
long time ago.”

But Barry Weinstein, an attor-
ney for Spencer, said the appeal
had merit because Spencer is try-
ing to show he is innocent. “This is
not a frivolous, last-minute at-
tempt,” Weinstein said. ;

A Richmond Circuit Court judge

last week turned down Spencer’s
request for new DNA testing, and
the Virginia Supreme Court up-
held the ruling Monday.

Spencer, known as the “South-
side strangler,” raped and killed
two women and a 15-year-old girl
in south Richmond and one woman
in Arlington during a three-month
period in 1987,

He was the first person convict-
ed of capital murder and sentenced
to death based on DNA evidence,
which tied him to all four crimes.
He would be the first person exe-
cuted based on genetic testing.

“This entire case falls on DNA
evidence,” said Weinstein, who had
two witnesses at last week’s hear-
ing raise questions about the DNA
match to Spencer.

Curry said eight DNA experts, ;
including a Nobel Prize winner in ¢
genetics, have determined that
Spencer committed the crimes.

Spencer, 32, is being held at the
Greensville Correctional Center at ;
Jarratt, where he is scheduled t
be executed at 11 p.m.

Meee Trae hots ie : “ASSOCIATED PRES
Timothy W. Spencer is scheduled to be executed tonight in Jarratt, Va.

ee ee


1
s

VIRGINIA —

RICHMOND — A judge rejected

a bid for new genetic tests for
“South Side Strangler” Timothy
Spencer, facing execution Wednes-
ry for ppt Sas of Debbie Da-
ose @: s— :
8,388,000 27%. i i

USA TODAY * FRIDAY, APRIL 22, 1994* 5A

es ee,

USA TODAY « MONDAY, APRIL 25, 1994: 7A.

RICHMOND — Timothy Spen- | ;

cer, who raped and_ killed. four - ;
SO ee ee ~=women, earning himself the name

eRe “Southside Strangler,” is to die in .
the electric chair Wednesday. In

’88, he became the state’s first capi-
tal murder suspect prosecuted us;
ing DNA evidence, officials said.

— The Times Thursday, April 28, 1994 BI

—

oo

‘Genetic evidence’ serial killer executed

JARRATT, Va. — A serial killer, the first person convicted
of murder on the basis of genetic evidence, was put to death in
the electric chair. . a

Timothy W. Spencer, known as the “Southside Strangler,”
was electrocuted Wednesday night at the Greensville
Correctional Center for the first in a series of rapes and

murders.

Spencer had consistently maintained his innocence.

Asked if he had any last words, Spencer said, “Yeah, I
think,” then said nothing.

He.was pronounced dead at 11:13 p.m.

Pr ae s 8 oes © =

er Timothy Wilson Spencer, 32,
the first person in the country.
convicted of.a capital crime’
through DNA testing, died in the |
state electric chair late Wednes-
day night. ee
The man known asthe ©»

Southside Strangler, convicted of
raping and murdering four wom-
en during a 10-week rampage 1n
1987, was pronoun dead at -
11:13 pm. EDT.

eel

A16 Thursday, April 28, 4994 @ The Fresno Bee


x
(

Execution date set for §

She was killed in her apartment at 4520 ©

BY ALAN COOPER
TIMES-DISPATCH STAFF WRITER

Timothy W. Spencer, the South Side
Strangler, probably will be executed on
Apmil 27 for the rape and murder of Debbie
Dudley Davissi2°°0"" ©

Richmond Circuit Judge James B. Wil-
kinson set the date yesterday in a pro-
ceeding that Jasted barely a minute.-

Spencer, wearing’an open-collared Ox-
ford cloth shirt‘with the shirttail hanging
over blue jeans, did not speak.

He appeared somber as he was led from

a Department of Corrections van into the

Manchester Courthouse under the guard

of One officer armed with a shotgun and
another with an M-16 rifle.
Deputy sheriffs and prison guards
ringed the courtroom as Spencer made his
way through the courtroom, his hands

handcuffed behind him and a burly deputy |
* on One arm.

Almost as soon as the handcuffs were
removed and Spencer took his seat to the
left of his attorneys, William T. Linka and

Barry Weinstein of the Virginia Post-Con-

viction Project, Wilkinson set the date.
Davis, 35, was the first of four women

Spencer strangled and Taped in their

homes between Sept. 18 and Nov. 28,

1987.

RicHnowo (va.)
TIMES - Disfare

TUES, HAR. 8,

Ie74

Devonshire Road.
Dr. Susan Elizabeth Hellams, 32, of 514
W. 31st St. was murdered the night of Oct.

- 2-3, and Diane Cho, 15, of 7501 Gavilan

Court, was killed shortly after midnight
Nov. 22. .

The final victim, Susan M. Tucker, 44,
was killed in her Arlington County town
house on Noy. 27 or 28. wa SF

He was sentenced to death in all the
casés, and his appeals of the other three

_convictions are at varying stages of the

federal court system.
Although he appears to have exhausted
all his appellate options in the Davis case,

pencer

Weinstein said after yesterday’s hearing,
“We are pursuing all other legal alterna-
tives that we have on Mr. Spencer's be-
half.”". #7?

He also could ask Gov. George Allen for
clemency.

At the time of the murders, Spencer
was assigned to a halfway house in Rich-
mond operated by. Offender Aid and Res-
toration Inc. after Serving a prison sen-
tence for burglaries committed near his
home in Arlington County.

Tucker’s:murder occurred while he was
home on furlough, and the other victims

PLEASE SEE EXECUTION. PAGE AS >


PEOCE Ey, DV imethen oe

Va. Man Pardoned After Five Years in Prison

Baliles Acts After Evidence Links Murder to Arlington Kiiler

By Dana Priest
Washington Post Staff Writer

LeHashingtan fast Tar, 5 IBF

Virginia Gov. Gerald L. Baliles granted a complete
pardon yesterday to David Vasquez, who pleaded guilty
to murder and has been imprisoned for five years, after
new evidence linked the killing to an Arlington man
convicted of two other murders.

In a written statement released yesterday, Baliles
said his decision followed an “exhaustive analysis” of the

evidence by the Arlington County Police Department .
and the FBI, and he had concluded that “reason and ©

justice” required the pardon, which exonerates Vasquez
of the crime.

“I’m ready to cry,” Vasquez said in an interview from
the Buckingham Correctional Center, from which he
was released early yesterday evening. To Baliles he had
this message: “I love him. I’m glad he did everything
right.” Vasquez said he wanted to hurry to his mother’s
home in Manassas, where he hoped to celebrate a be-
lated Christmas.

Vasquez, who had been imprisoned since Feb. 6,
1984, was accused of killing Washington lawyer Car-
olyn Hamm. who detectives beiieve was raped and then
hanged from a pipe in her basement the month before.
The weekend before the trial began in 1985, V

° ©,

ek Se

; BY RAY LUSTIG—THE WASHINGTON Post
“I’m ready to cry,’ David Vasquez said of the news that
he would be pardoned after serving five years for murder.

tried for capital murder, which carries the death pen- :

alty.

n an unusual move, Arlington Commonwealth’s At-
torney Helen F. Fahey, whose office had prosecuted
Vasquez, asked the governor in October to consider a
pardon. .

Fahey’s request was based on new evidence un- ‘

See VASQUEZ, Al0, Col. 1

7
Ves
i

Virginia Man Exonerated After Five Years in Prison

VASQUEZ, From Al

earthed during the investigation of
another murder, that of Susan
Tucker of Arlington in November
1987.

Police believed that the same
person who killed Tucker aiso killed
Hamm because-of dozens of simi-
larities between the two murders.

The similarities included stran-
gulation but“no signs of struggie,
and that the victims were raped,
their hands bound, their purses
robbed only of cash.

Police also knew that the as-
Sailant in both cases carried a knife
and covered his hands with gloves
or socks.

Relying on genetic DNA testing,
police linked Timothy W. Spencer
to Tucker’s death, and in July, a
jury convicted Spencer and sen-
tenced him to death.

In September, Spencer was sen-
tenced a second time to death for
the rape and murder of Richmond
resident Debbie Dudley Davis, who
was killed in late 1987. .

Fahey said that the blood type of
the semen sample found on Hamm
matched Spencer's blood type,
which was compared only after he
became a suspect in the Tucker
case,

Fahey said Spencer, who faces a
third capital murder trial in Rich-
mond, will not be tried for Hamm’s
death because of the convictions
against him.

Fahey and detectives said they
always believed that Vasquez was
an accomplice to the Hamm mur-
der. He is a slight man, they pointed
out, probably physically unable to
have hanged Hamm.

The main evidence against Vas-
quez at the time of his arrest was a
hair fiber found at the scene that
was consistent with Vasquez’s hair
type, a neighbor who spotted Vas-
quez the night before the crime in
front of the victim’s home and three
long, often rambling conversations
Vasquez had with Arlington detec-
tives after his arrest. The conver-
sations were taped, but only one
was ruled admissible in court.

Police said during a preliminary
hearing that Vasquez, who was de-
scribed in court as having low-level
intelligence, rambled during his
statements. Vasquez seemed to be
in a trance as he recounted the
crime to police, as if it were “a hor-
rible dream,” a detective testified.

The detective testified that he
had asked Vasquez “to get himself
in a state where he can really think
about the dream. . . force himself a

David Vasques, shown recently in his cell, said in an interview of Baliles:

Richard McCue, Vasquez’s attor-
ney at the time, said yesterday that
during the conversations the detec-
tives fed Vasquez bits of informa-
tion about the crime and that Vas-
quez incorporated them into his sto-
ry. For instance, Vasquez first said
he stabbed Hamm, then that he
used a belt to strangle her. Each
time, said McCue, who has listened
to the tapes, detectives told Vas-
quez he had given the wrong an-
swer. Hamm was strangled with the
cord to venetian blinds.

At no point during those conver-

sations did Vasquez request an at-

torney.

McCue said yesterday that Vas-
quez did not understand he had that
right. “He was not capable of fully
understanding his Miranda rights,”
McCue said. '

Vasquez said he was confused
and frightened at the time, that he
“was repeating everything the de-
tectives were saying,” but that he
was innocent of murdering Hamm.

The week before the trial was
scheduled to begin, Arlington Cir-
cuit Court Judge William L. Winston
ruled that the third tape was admis-
sible as evidence and that McCue
would be restricted in what he told
the jury about how the detectives
had conducted the conversations.

s:;,:1::-_.

‘ ° * ‘

“I love him. I'm giad he did everything right.”

SY RAY LUBTIG— Tie WiAsHINQTON POST

"last night that he “felt great” about
the pardon,

Vasquez said he plans to ask the
state to compensate him for what
he estimated to be $250,000 in lost
wages from the fast food job he held
at the time of his arrest.

Imelda Shapiro, Vasquez’s moth-
er, said while choking back tears yes-
terday that she had kept her Christ-
mas tree up and packages wrapped in
expectation of her son’s freedom.

Asked what she wanted to do upon
his return, she said: “Just love him
and hug him and thank God he’s
home. He’s suffered too much.”


Spencer
execution

scheduled

VY EXECUTION FROM PAGE Al

lived within a few miles of the house.
- Davis’ parents, William and Jose-
phine Dudley, filed a $9 million law-
suit against OAR. They alleged that
their daughter would not have been
killed if the agency had supervised
Spencer properly. Eventually, the
case was settled.

OAR no longer operates halfway
houses.

'W. Ray Williams, the lead Rich-
mond detective in the case, was the

only member of the original prosecu-

tion team in court yesterday.

‘Now a patrolman, Williams said
after the hearing, “I have mixed feel-
ings about the death penalty. I don’t
take any pleasure in seeing some-
body die in the electric chair. But in
these cases, the death penalty is
completely justified and warranted.”

Williams noted that Spencer never
would have been convicted had it not
been for DNA evidence.

Seminal fluid from all four rape
scenes was matched with blood sam-
ples from Spencer.

Spencer’s lawyers have argued
that DNA testing — known as genet-
ic fingerprinting — is unreliable.
That argument has been rejected at
every step of the appeals process.

e

478.3."
CN tae
Mn oat

SILENCE. Timothy Spencer was silent
left the Manchester Courthouse after |


Richmond J ury Recommends

‘3rd Death Penalty for Killer

Associated Press

RICHMOND, Jan. 20—A Rich-
mond Circuit Court jury recom-
mended today that Timothy W.
Spencer be sentenced to death for
the October 1987 slaying of Dr.
Susan Elizabeth Hellams inher
Richmond home.

Spencer already has been con-
victed of two 1987 murders, one
the slaying of Arlington resident
Susan M. Tucker, and received a
death sentence in each case. He
faces a fourth murder charge for
the November 1987 strangling of a
15-year-old Chesterfield County
girl.

Hellams, 32, a neurosurgery res-
ident at Medical College of Virginia
Hospital, was bound and strangled
with a belt. Her husband found her
body in their bedroom closet when
he returned home from law school
in Washington.

Jurors deliberated for about an
hour this morning before recom-
mending that Spencer die in Vir-
ginia’s electric chair for killing Hel-
lams. Spencer’s attorney had urged
the jury to recommend a life sen-
tence instead of death. .

Richmond Commonwealth’s At-
torney Aubrey M. Davis Jr. sought
the death sentence for Spencer,
saying Spencer poses -a continuing
threat to others.

Spencer, 26, showed no emotion
as Circuit Judge James B. Wilkinson
read the jury’s recommendation and
set sentencing for Feb. 27.

During the four-day trial on
charges of capital murder, rape,

sodomy and burglary, prosecutors

relied heavily on DNA evidence
linking Spencer to the crime. Ev-
idence was presented showing that
DNA patterns in his blood matched
patterns in semen found on Hel-
lams’ slip. : .

DNA testing, a procedure devel-
oped in the mid-1980s, is beginning
to be used in criminal trials as a
means of identification that scien-
tists say is more certain than blood
testing or fingerprinting. Every
person, with the exception of iden-
tical twins, has a unique pattern ‘of
DNA, the basic genetic material
found in the cells of body tissues,
blood and other fluids.

Four genetics experts testified at
Spencer’s trial that tests used to

produce X-ray film prints of his —

DNA patterns are accurate and ac-
cepted procedure in the scientific
community worldwide.
DNA evidence also played a role
in Spencer’s other two convictions.
He was found guilty last year of rap-
ing and strangling Tucker, 44, in
her Arlington home in November
1987, and of murdering Debbie
Dudley Davis, 35, in her Richmond
apartment in September 1987.
Spencer also is charged with cap-
ital murder and rape in the stran-
gling of Diane Cho, 15, in her Ches-
terfield County home on Nov. 22,
1987. *
All four slayings occurred during a
three-month period while Spencer
was living at a South Richmond half-
way house after being transferred
from prison in September 1987.

- THe WASHINGTON Post

TUESDAY, FEBRUARY 28, 1989 Dit.

AROUND THE REGION

Virginia Killer Is Sentenced
Yo Death for the Third Time

-, Timothy Spencer, already under two death sen-

tences for strangling women in Arlington and Rich-

- mond, was sentenced yesterday to be electrocuted
| ‘for the slaying of a Richmond doctor.

Richmond Circuit Judge James Wilkinson ordered

- that Spencer be put to death for the October 1987

rape and murder of Dr. Susan Hellams. He also was

j ES sentenced to two life terms for rape and sodomy and

ssp years in prison for breaking and entering.
Hellams, a neurosurgery resident at the Medical

College of Virginia, was found by her husband in the
“ bedroom of their home on Oct. 3, 1987. She had
- been bound and a belt was tied around her neck.

Spencer has already been sentenced to die for the

- Thanksgiving 1987 killing of Susan Tucker, 44, of

Arlington and the Sept. 19, 1987, slaying of Debbie
Davis, 35, of Richmond.

Spencer was the first person to be convicted: in
Virginia based on the sophisticated laboratory anal-
ysis of DNA, the basic genetic material found in each
cell. Each person is believed to have a unique genetic
pattern, with the exception of identical twins.

Spencer still faces trial for the slaying of Diane _
Cho, 15, of Chesterfield County.

the, Washs — fo<—q-

_ Rapist- Slayer i in Virginia
’ Given 2nd Death Sentence —

By Dana Priest _

Washington Post Staff Writer

8.
9

For the second time this week,
“Timothy W. Spencer was sentenced

Bm

-yesterday to die in Virginia’s elec-

xtric chair for rape and murder.

Arlington Circuit Judge Benjamin

'N.A. Kendrick sentenced Spencer
‘to die March 27, 1989, for the
‘strangulation and rape of ‘Arlington
‘resident Susait Tucker. On Wednes-
‘day, a Richmond judge imposed the
ideath penalty. on Spencer ‘for the
rape ‘and killing of a Richmond wo-
man. :

* Spencer,’ 26, who faces’ a third
capital murder trial in Richmond
early next -year and has been

charged in the slaying of a-Chester-..

field County girl, has been. de-

scribed as a serial killer by prose-

cutors and detectives. The officials
have recently. presented evidence

“that they say links-Spencer with the

deaths of two more Virginia women

and a dozen other crimes, including
- eight rapes.
The FBI defines a serial killer as »

one’-who has killed at least three

people at different times and places
and: ‘generally with a sexual aes
7 Vallone 22":
; "Speaking at length for the: first
‘time at either trial, Spencer yester- .
‘day.told the Arlington court: “I
‘would just like to say I.am sorry
that ‘my family is going through
‘this. I feel sorry for the-person who
- got ‘killed and-her family. I would

like to get a chance to prove e that I
ain’t this sort of person.”
The two death penalty verdicts
. will be automatically appealed, ‘a
process that can take several years.
Evidence presented to Gov. Ger- ||
ald L. Baliles and state courts of: |.

‘Spencer’s involvement in.» other

murders includes:

w During the sentencing. portion of
Spencer’s trials in Richmond. and.}
Arlington, prosecutors told ‘the -
courts that DNA evidence from_se-

men traces found at- the crime

scene linked Spencer.'to: the rape

--and murder of Richmond physician |

Susan Hellams, who was found late

‘Jast year ‘stuffed in. a. closet. and”

strangled with belts... . a ene
Defense ‘attorney’ eft: Evertirt
said Spencer, who will be tried Jan. |

-, 17. for Hellam’s murder, does not |

have an alibi in the ‘case, and ‘his
co-counsel ‘David. Johnson said. the ::
See SPENCER, B7, Col. 4

SPENCER, From B1

DNA evidence presented “a huge .

hurdle.”

The Tucker case was the first i in

Virginia to allow DNA tests as ev-
idence in a murder trial.
w Last week Arlington Common-
wealth’s Attorney Helen Fahey sent
Baliles a file on the January 1984
slaying of Washington lawyer Car-
olyn Jean Hamm, whose-nude body
was found in her Arlington base-
ment.

The report says that blood, hair’

and other circumstantial evidence
link Spencer to that crime.

Fahey has asked the governor to
grant a conditional pardon to David
Vasquez, who had pleaded guilty to
the Hamm slaying and has spent the
last four years in jail for the crime.
w Spencer also has been indicted
for the murder of a 15-year-old
Chesterfield County girl. No trial
date has been set for this case.

At Spencer’s sentencing yester-
day, defense attorney Thomas J.
Kelley said, “Absolutely no one, not
one single person has ever been
able . . . to say, ‘I knew he was go-
ing to end up like that.’ ”

| Spencer Faces a 3rd Trial for Richmond Murder :

ASSOCIATED PRESS

Timothy .W. Spencer, in handcuffs, is escorted from murder trial in Richmond. ~

OVER >


~ Timothy Spree (cor't)

He said that although Spencer

was diagnosed as emotionally dis-
turbed at age 10, there were no
detectable traumas that contributed
to his state of mind. — ae

He argued that little was known

generally about the human psyche |
and that “the only way we're going -
to obtain that knowledge [about

Spencer’s motives] is if we sen-
tence him to life’ rather than the
electric chair. ~

Spencer said yesterday in court

that Arlington detective Joe Horgas

“set me up because this is nothing ”

but fake for what Iam being sen-
_tenced to today.”

He explained, “I’ve gone through.

two trials already,” when asked why

the death penalty should not be im- _
posed. “I done seen how he did it.” —
Horgas gathered evidence con-

necting a series of rapes in 1983

with the homicides committed late’

last year in Richmond and Arlington
that led to Spencer’s arrest and
convictions.

Spencer had been jailed from Jan-
uary 1984 to September 1987 ona
burglary charge in Alexandria. He
was released to a Richmond halfway
house, where he was living at the
time of the Richmond and Arlington
killings.

Horgas said he began to make

connections - between’. the 1983

cases and Spencer last year when a
"Richmond detective told him about
_ a rape case in which the assailant
carried burglary tools and a rope to ©
tie up his victims, clues‘that had

surfaced in, the Tucker and Hamm

ces: * my
That evidence “was the light

bulb,” he said yesterday. '
~ Horgas said he searched the rec-

ords of “Arlington’s unsolved. rape
cases as far back as the 1983 attack

- in Alexandria, in which the victim - ~
was stuffed into the trunk of a Car

that was then set afire.

a fire in the 1970s. “All I could re-

member was [the name] Timmy,”
he said yesterday. That recollec-

tion, he said, eventually led him to
Timothy Spencer... .
He compared Spencer’s incarcer-

~ ation record with the dates of the

murders and rapes.

‘In the three months that followed
Spencer’s release from jail in Sep-
tember 1987, Hellams and Debbie

He said he then remembered a
‘case in which a 10-year-old had set

'. not true.

[ashineron Pag

Dudley ; Davis, who lived within:
walking distance of the Richmond:

~ halfway house, were killed. So were-

15-year-old Diane Cho, who lived.,
five miles away, and Tucker, who-,
lived several blocks from the Spen-.,
cer family home in Arlington where

Spencer’ spent Thanksgiving -"in>
"1987, 302 ne geen

4 ae pa:
é Ns

“It won't bring Suzy back:but™:.

there is some. satisfaction,” Susah:
“Tucker’s friend, Erin Broadbént;:

said after the sentencing yesterday."
Spencer’s mother, Thelma,, had”
been in the Arlington court the day":
that a defense attorney faintheart-"' _
edly told the jury that Spencer had‘
possibly killed Tucker because’ lie’
was upset with his mother. That’
bothered me for three weeks,” she’
said yesterday outside the court-.
room. “Tim said, ‘Momma, that's:

Thelma Spencer said.she would...
stand by her son. “I can’t afford: it-
financially-wise,” she said. “But:as
far as motherly love, I'll be with him-
to the end.” ony fo:

like we have a copycat
detective remarked.
-vidence corroborated that
“ibers from St. Hilaire’s
tched fibers found on the
the nude body of Rena

as discovered. Likewise, fi- -

r clothes were found on St.
hing.

concluded that, desperate
Hilaire had broken into
partment looking for cash.
or surprised by the pretty
smashed her in the head
er, then searched the apart-

the police off, St. Hilaire
ind bound the lifeless body
murder appear that it was
/ the Southside Slayer.

dilaire hadn’t counted on

s he couldn’t stand to live
did, so he killed himself,”
yted.

ind nothing linking St.
: other rape murders. The
ision was that he was just
addict driven mad by his
o decided to circumvent
ystem by being his own
id executioner.

2 murder case was marked
sk-force investigators had
to make much headway
‘s. The FBI profile hadn’t
lp; the questioning of hun-
-sses hadn’t resulted in an

2 January 1988, police got
from police in Arlington,

ing information on a 25-—

cted burglar arrested on a
harge.

was Susan Tucker, 44, an
1 the U.S. Department of
Jn December 2, 1987, a
ed police and told them
zen Susan since Thanks-
called Susan’s friends and
ome, but was unable to

ers paid a welfare call to

S two-story condominium -

ve Fairlington section of
ngton. After finding the
| the underground parking
he door. When no one an-
of the officers climbed
dow.

er was discovered in the
om. Her nude body lay
the bed with a sleeping
‘er the upper half of her
nad been raped and

sodomized and had been dead for al- ¥

most a week.

Entry into the home was apparently
made through a bathroom window
which had been broken and pushed
open. The killer had then made his way
to the bedroom, where Susan Tucker
had apparently lain asleep.,

Police conducted a massive investi-

gation. Neighbors, friends and co-work- |

ers were questioned, sex offenders were
grilled and the house was searched for
the slightest bit of physical, evidence.
The clue that broke the case wide
open. came from an old burglary. detec-
tive who said the neatness of the crime
scene reminded him of a hot-prowl bur-
glar he had once put away. |
The burglar was Timothy W. Spencer,
25. A native of Washington, D.C.,
Spencer had a long rap sheet for burgl-
ary and robbery and had just been re-
leased to a halfway house.
The detective described Spencer as a
“cool, slippery dude” who got a thrill
out of breaking into homes while the oc-
cupants were asleep. As his record
showed, however, not all his attempts
were successful.

In June 1981, Spencer began serving
a two-year term for breaking and enter-
ing. Paroled in December, he was re-
turned to prison in March 4, 1982, after
being convicted of trespassing in con-
nection with another residential break-
in.

Then, on January 29, 1984, he was ar-
rested and charged with breaking into a
home in Alexandria, Virginia. In that in-
cident, a man told police that he woke
up and saw a stranger in the bedroom.
He later identified Spencer as the hot
prowler.

Spencer was convicted of that crime
as well as another burglary committed
the same evening. He was returned to
prison, He was transferred to a halfway
house in Richmond on September 7,
1984,

Spencer was black, stood 5 feet 10
inches tall and weighed 160 pounds.
When his mugshot was shown’to Susan
Tucker’s neighbors, no one recognized
him. His prints were not discovered in
the house and he did not have any sex-
offense convictions. apd

Acting on the burglary detective’s
hunch, investigators decided to question
Spencer to see what, if anything, he
knew about the murder.

On January 20, 1988, Arlington Po-
lice Detective John Horgas drove to
Richmond and interviewed Spencer at

the halfway house where he was finish-
ing up his parole. Horgas. told Spencer
only that he was investigating a burglary
and wanted Spencer to return with him
to Arlington. He said officers wanted to
question him and that it might be neces-
sary to give a blood sample.

“Does the blood thing have anything
to do with the rape?” Spencer asked.

“Surprised, Detective Horgas asked
what rape. He had only been talking
about a burglary.

Grinning, Spencer said that he had
been to prison and knew that police seek
blood samples for lab tests in sex-crime
cases. .

““T suppose it has something to do
with that murder,” Spencer said.

Again, Horgas was surprised. “What
murder is that?”

Spencer shook his head. The murder
of that woman in Arlington—he had

** read about in the papers. Everyone was

talking about it.

There had been a small story in the
suburban papers. But as far as Detective
Horgas knew, no one but the family, po-
lice and perhaps the killer were talking
about the slaying.

Spencer was returned to the police

station and questioned. He told police

that he spent most of his time in Rich-
mond but made occasional trips to Ar-
lington to visit relatives.

One of those visits was on Thanks-
giving—the last day Susan Tucker was
seen alive. Spencer claimed that he
spent that holiday taking it easy and
watched sports on TV. Except for brief
trips to the store, he didn’t leave the
house:

Relatives confirmed the story. But,

during a search of the Richmond half-

way house where Spencer was paroled,
detectives discovered a camouflage
jacket belonging to Spencer which con-
tained small bits of glass that matched
the distinctive glass of the broken win-
dow in the Tucker home.

‘The glass fragments were enough to

‘hold Spencer for further questioning.

More damaging was the blood sam-
ple—it proved to be enough to put him
in the electric chair.

The sample was turned over to Life-
codes Corp.,.a.New York firm that test-
ed blood and other body fluids for its

_ genetic makeup, or DNA. Preliminary

results showed that the genetic material
in Spencer’s blood sample was identical
to that in dried semen scraped from Sus-
an Tucker’s thigh. According to lab ex-
perts, the chances of two persons having

the same genetic makeup was about 135.

million to one.

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Official Detective 71


DAMS Met SRI SR

Spencer was charged with the sexual
assault and murder of Susan Tucker. His
parole was revoked and he was held in
county jail without bail. abs:

The hot prowler found himself in
more hot water after his “genetic finger-
prints” turned up in body fluids discov-
ered at the crime scenes in the Debbie
Davis and Susan Hellams cases.

Richmond Commonwealth Attorney
Aubrey M. Davis Jr. called a press con-
ference to announce that he would ask a
grand jury to indict Spencer on capital
murder charges arising from the stran-
glings of Debbie Davis and Susan Hell-
ams.

Franked by Police Chief Frank Dul-
ing, Major Stuart Cook and Captain
Kenneth Jenkins, Aubrey told reporters
about the forensic tests and announced,
“I am satisfied that the person respons-
ible for the homicides of Dr. Hellams
and Ms. Davis is in police custody and
is no,longer a danger or a threat to the
public.”

Spencer was also the prime suspect in
the murder of 15-year-old Diane Cho,
but he would not be charged because not
enough semen had been recovered to
conduct DNA tests.

Davis expected to handle the pros-
ecution of Spencer himself. He added,
“Plea negotiations are out of the ques-
tion.”

He said that he fully expected the
grand jury to return indictments and, if
Spencer was convicted, he planned to
seek the death penalty.

The Richmond grand jury heard the
case in April 1988. After two days of
testimony, the jurors returned indict-
ments against Spencer, charging him
with two counts of capital murder and

five lesser counts. These included the ~

charges of rape and breaking and enter-
ing with intent to commit rape in the
death of Ms. Davis, and with rape,
breaking and entering with intent to
commit rape and sodomy in the death of
Dr. Hellams.

After the indictments, Davis met with
reporters outside the venerable Rich-
mond courthouse. Asked if he was grati-
fied with the indictments, the D.A. said,
“I won’t start dancing in the street yet,
because we’ve got a long way to go. It’s
a complex case and he has to stand trial
first in Arlington before we get a crack
at him.”

He said he did not expect a trial until
September at the earliest. “We aren’t in
any hurry,” Davis said. ‘“‘He’s not going
anywhere.”

72 Official Detective

Ni SEA CONN S25 LORE ONAN IRIN nk a pitas

In addition to the criminal charges,
Spencer had also been linked to other

rapes and assaults committed in Ar-
_ lington. The crimes were committed in a

eight-month period when Spencer was
not in prison.
On June 27, 1983, a 23-year-old wo-

_ man was raped at her home, as was an-

other 23-year-old woman on July 16th.
In both cases, therapist entered the
homes through an unlocked ground-
floor window.

Then, on July 23rd, a man attempted”

‘to abduct a woman from the parking lot

of her apartment. She escaped, but four
days later, a 28-year-old woman was ab-
ducted in her car by a man with a knife
and raped.

On August 6, a 22-year-old woman
was abducted from in front of her apart-
ment and held captive for almost two
hours. She was raped and put in the
trunk of her car, and the car was set on
fire. She escaped.

There were five more rapes and as-
saults in August, one each in September
and October. On December 21st,.a wo-
man was raped in her apartment by a
man who entered through an unlocked
door. A month later, a man burglarized
one apartment, then broke into the one
next door and raped the occupant, a 32-
year-old woman.

Spencer was linked to the crimes be-
cause of similar M.O.’s and his physical
description.

“The crimes showed a definite pat-
tern,” one investigator noted. ‘‘It’s also
significant that the crimes stopped after
he was arrested.”

Spencer went on trial for the murder
of Susan Tucker in July 1988 before Ar-
lington Judge Benjamin Kendrick. Ar-
thur L. Karp was the prosecutor.

The courthouse was jammed with
spectators eager to hear not only one of
the most sensational murder cases in re-
cent memory,' but also the first one in
Virginia history to use the co-called
DNA “fingerprints” as evidence.

* Prosecutor Karp called six scientists
to the stand to testify about the re-
liability of the test and its use in six oth-
er states.

Several of these experts emphasized
that the DNA ‘test could not yield a false
positive result which would incorrectly
identify a suspect. ‘‘One could get a
false negative from not being careful,”
one scientist said. ‘But I can’t think of a
way you can get a false positive from
not being careful.” ai

The July heard that the DNA test was
almost as good as fingerprints and that
only a sibling could have the same DNA

makeup. The panel learned that Susan
Tucker was found lying face down and
nude on her bed. A cloth found beneath
her body, a sleeping bag that partially
covered her, and a nightgown lying next
to her were taken to a lab for DNA test-
ing.

The items were found to be semen-
stained and were tested against a sample
of the defendant’s blood. The results of
that testing were admitted as evidence
on July 15th.

A photograph or autorad showing
DNA patterns of semen stains next to
the DNA patterns of the defendant’s
blood was enlarged on an overhead pro-
jector and shown to the jury on a big
screen.

A DNA forensic scientist used a
yardstick and pointed three times to cor-
responding patterns of dots on the
screen. “Nightgown, sleeping bag, de-

‘ fendant’s blood,” she recited. ‘‘Night-

gown, sleeping bag, defendant’s blood.
Nightgown. Sleeping bag, defendant’s
blood.”
The patterns showed exact matches
on how Spencer’s genes and genes in
the semen stains corresponded to the
three radioactive probes used in the test.
Seated in the darkness, Spencer
watched the demonstration impassively.

Defense Attorney Carl Womack did
not dispute the lab findings but ques-
tioned scientists closely about the
chance that blood relatives could have
the same DNA patterns.

Then he called the defendant’s rela-
tives to the witness stand and asked
each to list the names of family mem-
bers. ;

The defense strategy was to show that
relatives living in Arlington had the
same genetic makeup as the defendant
and any of them would have been capa-
ble of committing the murder.

Prosecutor Karp voiced a loud objec-
tion. With the jury out of the courtroom,
he argued that if the defense was al-
lowed to continue such a strategy, he
should be allowed to introduce DNA
and other evidence linking Spencer to

rapes and murders of Susan Hellams.

and Debbie Davis.

‘“We can prove that the Richmond
crimes were done with extraordinary
likelihood by'the same person who did
this crime, and that Mr. Spencer had
checked himself out of the halfway
house and was available to do those
crimes,” Karp told the judge.

. In addition to the DNA testing, Pros-
ecutor Karp said, Spencer had been

ng EIS SETTLE

linked to the cri)
en similarities,
tims were whil
each victim’s !
her back; in tw:
their bound han
each was stran
walking distanc
staying when
each was killed
was signed out
money was fou!
the blood type
all three cases
er’s; a window
trance.

Judge Kendr
ecutor. He tc
Womack that
strategy that si
have murdered
allow the pros
dence from th:

“T think yo
and no matter
don’t think yo
eat it, too,” th

After an hoi
on both sides «
none of Spen
the crime. Th:
Richmond ev
drop the issue
pects.

The follow
took the witn
the jury that
Susan Tucker
came into cor
er heard of h:

The jurors
lieve, howev
found Spenc
rape and mu!
that the prope
was life in p!

It was a vii
slow-talking
sively clutct
the verdict w

His luck r
when a Rict
him guilty o
Debbie Dav
September 2
he should r

Spencer
Chester Cou
Cho, a crime
er death sen

By law, |
have been
" preme Cour
on Death k

anel learned that Susan
nd lying face down and
1. A cloth found beneath

eping bag that partially |

i a nightgown lying next
n to a lab for DNA test-

zre found to be semen-
2 tested against a sample
t’s blood. The results of
e admitted as evidence

h or autorad showing
f semen stains next to
rns of the defendant’s
zed on an overhead pro-
yn to the jury on a big

:nsic scientist used a
inted three times to cor-
tterns of dots on the
own, sleeping bag, de-
.” she recited. “‘Night-
bag, defendant’s blood.
eping bag, defendant’s

showed exact matches
r’s genes and genes in
Ss corresponded to the
probes used in the test.
e darkness, Spencer
\onstration impassively.

ney Carl Womack did
lab findings but ques-
ts closely about the
id relatives could have
yatterns,

d the defendant’s rela-
ness stand and asked
1ames of family mem-

rategy was to show that
in Arlington had the
keup as the defendant
would have been capa-
g the murder.
‘p voiced a loud objec-
y out of the courtroom,
f the defense was al-
je such a strategy, he
ed to introduce DNA
ce linking Spencer to
2rs of Susan Hellams
Ss.
/e-that the Richmond
1e with extraordinary
same person who did
that Mr. Spencer had
f out of the halfway
available to do those
ld the judge.
he DNA testing, Pros-
d, Spencer had been

linked to the crimes by more than a doz-
en similarities, among them: The vic-
tims were white females living alone:

‘each victim’s hands were 'tied behind
her back; in two cases, a rope ran from -

their bound hands to around their necks;
each was strangled; each lived within
walking distance of where Spencer was
staying when the slayings occurred;
each was killed at a time when Spencer
was signed out from his residence; no

money was found in the. victims’ purses; .

the blood type belong to the suspect in
all three cases was identical to Spenc-
er’s; a window was broken to gain en-
trance.

Judge Kendrick agreed with the pros-
ecutor. He told Defense Attorney
Womack that if he continued with his
Strategy that suggested a relative could
have murdered Susan Tucker, he would
allow the prosecutor to introduce evi-
dence from the other murders.

“T think you’ve opened up the door
and no matter what you do, regardless, I

don’t think you can have your cake and .

eat it, too,” the judge said.

After an hour of discussion, attorneys
on both sides agreed to a stipulation that
none of Spencer’s relatives committed

the crime. They also agreed to omit the’

Richmond evidence from. the trial and
drop the issue of blood relatives as sus-

. pects.

The following day, Spencer himself
took the witness stand and declared to
the jury that he did not rape or murder
Susan Tucker. He asserted that he never
came into contact with her and had nev-
er heard of her until his arrest.

The jurors found that difficult to be-
lieve, however, and on July 17th, they
found Spencer guilty of first-degree
rape and murder. They also determined
that the proper punishment for the crime
was life in prison. ;

It was a victory of sorts for the slight,
slow-talking defendant who sat impas-
sively clutching his mother’s hand as
the verdict was read.

His luck ran out three months later,
when a Richmond County jury found
him guilty of the rapes and ‘murders of

Debbie Davis and Susan Hellanfé. On ‘

September 22, 1988, the jury voted that

he should receive the death sentence.: -
Spencer also could stand trial in -

Chester County for the murder of Diane
Cho, a crime that could bring yet anoth-
er death sentence.

By law, the death penalty verdicts
have been appealed to the State Su-
preme Court. Currently, Spencer resides
on Death Row awaiting their ruling.

kkk

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PUB IFEAEL EAI, ARgROPERS PAT TACREMRER LOo8 T pcer o PRR iRTERTC C

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SPENCER v. MURRAY

20 GY VIIG/ N/a

229

Cite as 18 F.3d 229 (4th Cir. 1994)

Appellant, _
v.

Edward W. MURRAY, Director;
Commonwealth of Virginia,
Respondents—Appellees.

No. 93-4002.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 30, 1993.
Decided Feb. 3, 1994.

Rehearing and Rehearing En Banc
Denied Feb. 28, 1994."

= W. SPENCER, Peto

After defendant’s state court capital
murder conviction was affirmed on direct
appeal, 238 Va. 563, 385 S.H.2d 850, defen-
dant petitioned for habeas relief. The Unit-
ed States District Court for the Eastern
District of Virginia, Robert R. Merhige, Jr.,
Senior District Judge, denied petition, and
appeal was taken. The Court of Appeals,
Widener, Circuit Judge, held that: (1) de-
fense counsel’s failure to procure defense
DNA expert was not ineffective assistance;
(2) defense counsel’s failure to conduct voir
dire on issue of racial bias was not ineffective
assistance; (3) defense counsel adequately
investigated mitigating evidence; and (4) ad-
mission of DNA statistical evidence was not
constitutional error, precluding consideration
of defaulted claim under “actual innocence”

- inquiry.

Affirmed.

; is 1. Habeas Corpus ¢=422

When habeas petitioner has defaulted on

_ federal claim in state court pursuant to inde-
-, Pendent and adequate state procedural rule,

federal review of defaulted claim is barred,

: absent two exceptions.

2. Habeas Corpus ¢>486(1)

To prevail on ineffective assistance of
Counsel claim, habeas petitioner must show
that counsel’s performance was deficient and

“With concurrences of Judges Phillips and

that petitioner suffered prejudice as result.
U.S.C.A. Const.Amend. 6.

3. Habeas Corpus ¢=486(1)

Habeas petitioner claiming ineffective
assistance of counsel must show both defi-
cient performance and prejudice; the two are
separate and distinct elements of ineffective
assistance claim. U.S.C.A. Const.Amend. 6.

4, Criminal Law ¢641.13(1).

In examining claim that counsel’s perfor-
mance was deficient, Court of Appeals exam-
ines whether counsel’s performance was rea-
sonable under prevailing professional norms;
Court conducts this review not by asking
whether it would have defended petitioner in
same way, but instead with deferential eye,
presuming that challenged acts are likely
result of sound trial strategy. U.S.C.A.
Const.Amend. 6. —

5. Habeas Corpus <~709

Just as habeas petitioner carries burderr
of proving that counsel’s performance was
deficient, petitioner claiming ineffective assis-
tance also carries burden of affirmatively
proving that prejudice results from counsel’s
deficient performance. U.S.C.A. Const.
Amend. 6.

6. Criminal Law ¢641.13(6)

Failure of defense counsel to procure
defense DNA expert was not ineffective as-
sistance in capital murder prosecution, where
defense counsel interviewed at least four ex-
perts but could not find one willing to serve
as defense witness, and had blind DNA test
run by independent laboratory, which corrob-
orated Commonwealth’s evidence. U.S.C.A.
Const.Amend. 6.

7. Criminal Law ¢641.13(2.1)

Defense counsel’s failure to conduct voir
dire on issue of racial bias was strategy
decision that did not deny defendant effective
assistance of counsel in capital murder case;
defense counsel had already obtained change
of venire because of publicity from defen-
dant’s first trial, believed that race was not
an issue because of change of venire, and
decided not to ask any questions on voir dire

Williams.


o)

a Virginia
him to death
in Arlington
court denied
abeas corpus
ffirm.!

wude body of
ier Arlington
yed and mur-
on. Because
if the murder
1, we refer for
- Court’s opin-
e.’ Spencer v.
84 S.E.2d 775

sentenced to
8. He appeal-
1g to the Virgi-
med. Spencer
, 384 S.E.2d
es Supreme
nm for a writ of
mia, 493 US.
1.24 775 (1990).

» Circuit Court
writ of habeas
missed and de-
wr v. Thompson,
on County, July
10, the record in
filed with the

no petition for
rginia Supreme
2d by law. Ac-
creme Court or-
-eturned to the
Younty on April
91, Spencer re-
nm for appeal out
ne Court denied
r 22, 1991.

Spencer v. Murray,
murder of Debbie
. —, 114 S.Ct.

SPENCER v. MURRAY 239
Cite as 18 F.3d 237 (4th Cir. 1994)

Spencer then turned to the United States
District Court for the Eastern District of
Virginia. By order dated May 7, 1993, the
district court denied Spencer’s petition for a
writ of habeas corpus and dismissed the case.
Spencer v. Murray, No. 3:92CV507 (E.D.Va.
May 7, 1993). On June 4, 1993, Spencer filed
a notice of appeal and an application for a
certificate of probable cause to appeal. The
district court denied Spencer’s application on
July 8, 19938. Spencer v. Murray, No.
3:92CV507 (E.D.Va. July 8, 1993).

Without applying for a certificate of proba-
ble cause, Spencer prosecuted his appeal in
this court.2 Spencer raises three issues
here: (1) The jury instructions and verdict
form at the sentencing phase do not ade-
quately address mitigating evidence; (2) Vir-
ginia’s appellate review of death sentences is
inadequate; and (3) forensic DNA profiling is
unreliable.

II

[1] Spencer’s first claim regarding the
jury instructions and verdict form’s failure to
adequately address mitigatin evidence must
be denied because Spencer did not exhaust
his state remedies? 28 U.S.C. § 2254(b).
This claim was not raised in Spencer’s direct
appeal to the Virginia Supreme Court.
There, Spencer raised vagueness challenges
to the vileness aggravating factor under the
Virginia sentencing scheme and claimed the
jury had excessive discretion. See Spencer,
384 S.E.2d at 778. No mention was made in
his brief to the Virginia Supreme Court of

2. When no application for a certificate of proba-
ble cause is filed after the district court's denial
of the certificate, the notice of appeal is treated
as a request addressed to the judges of the court.
Fed.R.App.P. 22(b). Accordingly, as individual
judges, the members of this panel grant a certifi-
cate of probable cause to appeal in this case.

3. The result would not be any different if the
claim were exhausted because we have repeated-
ly held that this claim is without merit. See,
e.g., Jones v. Murray, 947 F.2d 1106, 1119-20
(4th Cir.1991), cert. denied, —- U.S. —, 112
S.Ct. 1591, 118 L.Ed.2d 308 (1992); Briley v.
Bass, 750 F.2d 1238, 1242-44 (4th Cir.1984),
cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85
L.Ed.2d 152 (1985).

4. Again, even if this claim were exhausted, we
would not afford Spencer habeas relief because

mitigating evidence with respect to jury in-
structions or verdict forms, The Virginia
Supreme Court held that the vagueness
claim concerning the vileness factor and the
claim of excessive jury discretion were not
raised at trial and were defaulted under Va.
Sup.Ct.R. 5:25. Spencer, 384 S.E.2d at 788.
It was not until he reached the federal dis-
trict court that Spencer raised the issue of
jury instructions and verdict forms in the -
mitigating evidence context. The district
court’s holding that the claim was raised on
direct review but procedurally defaulted un-
der Va.Sup.Ct.R. 5:25 may not be correct,
but apparently results from understandable
confusion in construing Spencer’s assign-
ments of error on direct review. The district
court was correct, however, in dismissing the
claim, because the claim before us concerning
mitigating evidence has not been presented
to the state courts and therefore is not ex-
hausted.

[2] Spencer’s second claim, which attacks
Virginia’s appellate review, must also be de-
nied because it was not raised in his direct
appeal to the Virginia Supreme Court.‘
Spencer has not exhausted his state remedies
on this claim, and we therefore deny relief on
that account. 28 U.S.C. § 2254(b).

[3-5] Spencer’s third claim is that foren-
sic DNA profiling is unreliable. Spencer has
not stated a federal claim with respect to his
allegations, and we therefore cannot enter-
tain his petition on this ground 28 US.C.
§ 2254(a). Further, even if we were to con-

the claim is without merit. We have examined
and rejected substantially the same claim before
in Peterson v. Murray, 904 F.2d 882, 887 (4th —
Cir.), cert. denied, 498 U.S. 992, 111 S.Ct. 537,
112 L.Ed.2d 547 (1990). See also Clozza v. Mur-
ray, 913 F.2d 1092, 1105 (4th Cir.1990) (deciding
question under specific facts involved), cert. de-
nied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d

231 (1991).

5. Indeed, Spencer’s petition on this point cites
no constitutional amendment nor mentions any
constitutional right infringed by the supposed
unreliability of the test. -

Also, the district court correctly held that. it
would not consider the point made here because
no federal constitutional claim in this regard was
presented on direct appeal to the Virginia Su-
preme Court.


238

2. Habeas Corpus 366

Federal habeas relief was barred as to
claim that state’s appellate review of death
sentences was inadequate, where claim was

not raised in direct appeal to state Supreme
Court. 28 U.S.C.A. § 2254(p).

3. Habeas Corpus ¢490(1)

In challenge to capital murder convic-
tion, habeas petitioner failed to state federal
claim with respect to his allegations that
forensic deoxyribonucleic acid (DNA) profil-
ing was unreliable, since admissibility of evi-
dence under state law was not question con-
sidered on habeas review. 28 U.S.C.A.
§ 2254(a).

4. Habeas Corpus ¢=366

Habeas petitioner’s claim that counsel
was ineffective in handling deoxyribonucleic
acid (DNA) evidence was not presented to
highest state court for review, thus barring
federal habeas relief, where petitioner at-
tempted to raise ineffectiveness claim in his
petition for appeal from state trial court’s
decision on his habeas petition, but he was
denied leave to file petition out of time. 28

U.S.C.A. § 2254(b). >

5. Habeas Corpus ¢490(1)

Admissibility of evidence under state law
is not question federal courts consider on
merits on habeas review. 28 U.S.C.A.
§ 2254. ,

~

ARGUED: William Theodore Linka, Boat-
wright & Linka, Richmond, Virginia, for Ap-
pellant. Donald Richard Curry, Senior As-
sistant Attorney General, Office of the Attor-
ney General, Richmond, Virginia, for Appel-
lee. ON BRIEF: Stephen D. Rosenthal,
Attorney General of Virginia, Office of the
Attorney General, Richmond, Virginia, for
Appellee.

OPINION

Before WIDENER, PHILLIPS, and
WILLIAMS, Circuit Judges.

1. This is the third murder and rape committed
by Spencer which has come to this court. Both
of our earlier cases arose out of convictions
obtained in the City of Richmond. Spencer v.
Murray, 18 F.3d 229, (4th Cir.1994) (murder of

18 FEDERAL REPORTER, 3d SERIES

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia
state court judgment sentencing him to death
for the murder of Susan Tucker in Arlington
County, Virginia. The district court denied
Spencer’s petition for a writ of habeas corpus
and dismissed his case. We affirm.’

I

On December 1, 1987, the nude body of
Susan Tucker was found in her Arlington
townhouse. She had been raped and mur-
dered by ligature strangulation. Because
most of the underlying facts of the murder
are not critical to our discussion, we refer for
them to the Virginia Supreme Court’s opin-
ion on direct review in this case. Spencer v.
Commonwealth, 238 Va. 275, 384 S.E.2d 775
(1989).

Spencer was convicted and sentenced to
death by a jury on July 16, 1988. He appeal-
ed his convictions and sentences to the Virgi-
nia Supreme Court, which affirmed. Spencer
v. Commonwealth, 238 Va. 275, 384 S.E.2d
7715 (1989). The United States Supreme
Court denied Spencer’s petition for a writ of
certiorari. Spencer v. Virginia, 493 US.
1086, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

Spencer next petitioned the Circuit Court
of Arlington County for a writ of habeas
corpus. His petition was dismissed and de-
nied on July 17, 1990. Spencer v. Thompson,
No. 90-424 (Cir.Ct. of Arlington County, July
17, 1990). On October 15, 1990, the record in
the state habeas case was filed with the
Virginia Supreme Court, but no petition for
appeal was filed with the Virginia Supreme
Court within the time allowed by law. Ac-
cordingly, the Virginia Supreme Court or-
dered that the record be returned to the
Circuit Court of Arlington County on April
24, 1991. On October 3, 1991, Spencer re-
quested leave to file a petition for appeal out
of time. The Virginia Supreme Court denied
Spencer’s motion on October 22, 1991.

Susan Hellams) (published); Spencer v. Murray,
5 F.3d 758 (4th Cir.1993) (murder of Debbie
Davis), cert. denied, —- U.S. ——, 114 S.Ct.
1208, 127 L.Ed.2d 555 (1994).

been 3). 4 ye ae
Fe Ree, a oe

Cee ere
Se

Spencer the
District Co
Virginia. By
district court
writ of habeas
Spencer v. M
May 7, 1993)-
a notice of a
certificate of
district court
July 8, 199
3:92CV507 (:
Without ac
ble cause, Sd
this court.”
here: (1) Tx
form at the
quately add
ginia’s appew
inadequate,
unreliable.

{1} Spens
jury instrucz
adequately 4
be denied c

his state r4
This claim ~
appeal to

There, Sper
to the vilen:
Virginia ser
jury had ex
384 S.E.2d

his brief tc

2. When no
ble cause
of the cert
as a reque
Fed.R.App
judges, the
cate of pr

3. The res
claim wer
ly held u
e.g., Jone
(4th Cir-.:
S.Ct. 156
Bass, 753
cert. dent
L.Ed.2d

4. Again,
would ni


240

strue his petition as alleging a denial of due
process, the result would not be any differ-
ent.

The claim would be dismissed for failure to
exhaust under Section 2254(b), except to the
extent it argues that the DNA evidence
should not have been admitted at trial.
Spencer’s claim that the DNA evidence was
inadmissible was raised on direct appeal, but
the admissibility of evidence under state law
is not a question we consider on the merits
on habeas review. Grundler v. North Car-
olina, 288 F.2d 798, 802 (4th Cir.1960); see
also Spencer v. Murray, 5 F.3d 758, 762 (4th
Cir.1993), cert. denied, — US. —, 114
S.Ct. 1208, 127 L.Ed.2d 555 (1994). Spencer
attempted to raise a claim that his counsel
were ineffective in handling the DNA evi-
dence in his petition for appeal from the
state trial court’s decision on his habeas peti-
tion, but he was denied leave to file his

assistance claim in the state habeas case was
not presented to the highest state court for
‘review, it, too, must be denied for?failure to
exhaust.6 28 U.S.C. § 2254(b). Therefore,
we do not review any aspect of Spencer’s
DNA evidence claim.

Ill

All of Spencer’s claims for relief must be
denied for failure to exhaust his state reme-
dies or failure to state a cognizable federal
habeas corpus claim.

The judgment of the district court is ac-
cordingly

AFFIRMED.

w
fe) g KEY NUMBER SYSTEM
T

6. The fact that the Virginia Supreme Court re-
fused to allow Spencer to file his appeal because
of his failure to comply with Virginia’s procedur-
al law supplies us with an additional ground to

18 FEDERAL: REPORTER, 3d SERIES

petition out of time. Because his ineffective —

UNITED STATES of. America,
Plaintiff—Appellee,

v.
Jeffrey S. LEGG, Defendant—Appellant.
No. 93-5262.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 28, 1993.
Decided March 1, 1994.

Defendant indicted for possession of
firearm with an obliterated serial number
moved to suppress firearm. The United
States District Court for the Southern Dis-
trict of West Virginia, John T. Copenhaver,
Jr., J., denied motion, and defendant appeal-
ed. The Court of Appeals, Wilkins, Circuit
Judge, held that warrantless seizure of pistol
found in closet of defendant's apartment was
justified under plain view doctrine.

Affirmed.

1. Criminal Law €=394.4(7)
Searches and Seizures o=124, 147.1

Fourth Amendment requires items to be
seized pursuant to warrant be particularly
described; seizure of items not described in
warrant violates the Amendment, and items
should be suppressed unless. exception to
warrant requirement applies. U.S.C.A.
Const.Amend. 4.

2. Searches and Seizures 47.1, 49

In order to justify warrantless seizure
under the plain view doctrine, three condi-
tions must be satisfied: first essential predi-
cate is that a seizing officer be lawfully pres-
ent at place from which evidence can be
plainly viewed; officer must have a lawful .
right of access to object itself; and finally,
object’s incriminating character must be im-
mediately apparent. U.S.C.A. Const.Amend.

4. \
affirm the district court. Crowell v. Zahradnick,
571 F.2d 1257, 1258 n. 1 (4th Cir.1977), cert.
denied, 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d
348 (1978).


SPEN. CER,Timothy

ed

“8S
against trustee was analogous to an action
for negligence). The bankruptcy court

therefore did not err in refusing Appellants’
request for a trial by jury.

V. Bifurcation
[8] Appellants further contend that the
bankruptcy court erred i in trying their claims
against McGee prior to and separately from
McGee’s cross-claims against the creditors
who removed the milking equipment from
the Hutchinsons’ property. The bankruptcy
court ordered separate trials under Bank-
ruptcy Rule 7042; which incorporates Federal
Rule of Civil Procedure 42(b). We review
decisions to bifurcate trials for abuse of dis-
cretion. Dixon v. CSX Transp. Inc. 990

F.2d 1440, 1443 (4th Cir.1998).

[9] Appellants contend that the bank-
ruptcy court abused its discretion because,
by trying their claims prior to and separate
from McGee's cross-claims, the court preju-

diced McGee’s claims against the creditors.

Appellants contend that any finding of negli-
gence on the part of McGee would be a
complete defense to the creditors’ liability
under North Carolina contributory negli-
gence principles. There are at least two
problems with this argument. First, the par-

ty supposedly being prejudiced -here is

McGee, the party who requested bifurcation.
Second, the action against the third-party
creditors is for violation of the automatic stay
provisions of 11 U.S.C. § 362 (Supp. II 1978
(amended 1982, 1984, 1986 & 1990). No
Carolina contributory negligence principles
are not relevant to an action for damages
under § 362(h) for violation of the automatic
stay. We conclude that the bankruptcy court

did not abuse its discretion i in bifurcating the
trial.

VI. Duty to Preserve Property .
In their ‘complaint, Appellants alleged that
McGee had breached her fiduciary duties by
failing to preserve the property of the bank-

4 _ ruptey estate. See Estate of Reich v. Burke

(In re Reich), 54 BR. 995, 998 (Bankr.
ED. Mich.1985). Specifically, Appellants
claimed that McGee, “after being placed on

notice of the removal of both real and per-.

sonal property from the dairy farm, failed to

Way, Black, elec. VA (Riichmandi City) ig

5 FEDERAL REPORTER, 3d SERIES

take any steps whatsoever to prevent farthar
removal of the property.” (J.A. 43-44.) We
agree with Appellants that because the bank-
ruptcy court made no factual findings ¢ on this

issue, remand is necessary for further y pro-
ceedings.

VII. Formal Factual Findings
Finally, Appellants complain that the
bankruptcy court’s opinion contains no for-
mal findings of fact. In actuality, the bank-
ruptcy court issued a detailed, published

opinion discussing both the law and facts of
this case. This claim is without merit.

VIII. Conclusion

Although we find no reversible error in the

findings of the bankruptcy court, we conclude
that remand is necessary to address -Appel-

lants’ claim that McGee breached her fiducia-

ry duty to lagen the “ree of the es-
tate.

AFFIRMED IN PART AND REMAND-
ED.

Og E KEY NUMBER SYSTEM

CPTimothy W. SPENCER, Petitioner- )

Appellant, y
‘ Ve

Edward W. | MURRAY, Director,
Respondent-Appellee.

‘No. 92-4006. "

United States Court of eakia,
- Fourth. Circuit.

_ Argued Oct, 28, ‘1992.
Decided Sept. 16, 1998,

After conviction for ° Pal ‘murder,

. rape, and burglary was affirmed on appeal,

238 Va. 295, 384 S.E.2d 785, petition was filed.
fer writ of habeas corpus. The United
States District Court for the Eastern District

on,

t

a)

EY Ce.— . Re abe (Calg,

ea eee ee

§ a . / .
? ‘i
— ame ee Sh ON go gh Ea re alg a Sets
Bea shai Fee :
4 ~ .
. 1 mn . M4 Lee RAIS hae Teen ee Gevere aba N eed oe sate


SOUTH SIDE STRANGLER. Timo- °

thy Spencer fought execution to”
the final day.

Davis, 35, was an accounts manag-
er for Style Weekly. She was found in
her apartment in the 4500 block of

' Devonshire Road ‘on Sept. 19. She .

' was lying face down on her bed, a

| black sock tied around her neck with -

| a section of vacuum cleaner pipe in it
that was used as a ratchet to tighten
and loosen it repeatedly.

She had been raped and sodo-

mized. Shoestrings tied to the sock :

' were also used to bind her wrists.

Spencer killed all his victims with- «

in 90 days of his 1987 release from

prison on a burglary charge. Three, ,
including Davis, were in the Rich- -

mond area near the prison halfway
house where Spencer was living.

The fourth victim lived near Spen-.
cer’s mother’s house in Arlington-
and was killed there when he was:
home on a furlough. Each of the:

women was attacked in her bedroom
and quickly overcome; had her hands
tied behind her back; and was raped
and strangled. All the attacks took
place during a weekend.

The other victims were:

Dr. Susan Elizabeth Hellams, 32, a
neurosurgeon, whose body was dis-
covered Oct. 3 in a closet in their
_ house in the 500 block of W. 31st St.;

Diane Cho, 15, a high school fresh-
man, who was found dead Nov. 22 in’
her family’ S apartment in the 7500:

Spenc

block of Gavilan Court in Chester-
field County; and Susan M. Tucker,
44! a federal employee, who was
found Dec. 1 inside her Arlington
condominium.

NA, or deoxyribonucleic acid,
carries genetic information and is

found in human cells. With the ex- .

ception: of ‘identical twins, scientists
believe: no two humans have the
ane Fi Pith.

challenges focused

. on the: wali of the DNA tests in

the:Davis case, when the technology
and’ ‘methods used were still being
devéloped and had only been used in
andful of other criminal cases in

the United States.
ag ce then it has become a widely
law enforcement tool and ac-

cep d as. evidence in courts across

untry. It has both cleared and
oa ficted people of crimes such as

‘ rape‘and murder.

Dudley said last week that the

; progress in the use of DNA in crime

fighting has helped give his daugh-
ter’s death meaning.

“Debbie has contributed, greatly,
given\her life to save others, because
she was the first [to prove the value]
of DNA,” he said. “‘All the same, it’s
kind of hard losing your daughter, the
only child you had.”

But, he said, “a lot of people have

~ given, itheir lives for less.”

Spencer, 31, who did not finish
high school, had short-lived jobs lay-
ing pipe and delivering furniture. He
has ‘shect much of his life in prison
with a record that included three bur-
glary convictions as a juvenile.

_ ‘No elaboration’

A prison chaplain who visited
Spencer several times a week, the
Rev. Henry Blunt of Franklin, said
FBI inyestigators had tried to talk to

: to learn more about serial
killers? But’ Spencer asked to have
them removed from the building.

Blunt said Spencer also refused to
flonate, this organs, as some con-

emned men do. He’ said Spencer
‘spent much of his’ last days brooding

ie outside. Is it that way on
*” Blunt recalled.
Yo elaboration.”

The Department of Corrections’
chief physician, Dr. Balvir L. Kapil,
decided not to be on hand yesterday
to pronounce Spencer dead, out of
concern he may be violating the ethi-
cal standards of the American Medi-
cal Association.

The medical duties were per-
formed by another prison physician,
Dr. Alvin E. Harris of Southampton
Correctional Center, who said he had
no qualms.

Witnesses to the execution includ-
ed a man who supervised Spencer
years ago at an Arlington community
center; Warren Von Schuch, deputy
commonwealth’s attorney for.Ches-
terfield who won a death. sentence
against Spencer; and a real estate
paralegal from Richmond.

A last round of legal efforts on

“Spencer’s behalf began last week in

Richmond Circuit Court, then contin-
ued unsuccessfully in the Virginia |
Supreme Court, U.S. District Court,
and the 4th U.S. Circuit Court of
Appeals. The U.S. Supreme Court
was the last to turn him down — just
15 minutes before his scheduled exe-
cution.

‘Gripping fear’

Gilmore, who fought Spencer’s
last-minute appeals and was the Hen-
rico County prosecutor at the time of
the 1987 rampage, said: “The com-
munity ranged from gripping fear to
near-panic.”’:

Williams, the detective, recalled
all-night stakeouts in the areas
where the strangler had struck. “The
neighborhood was lit up like Christ-
mas, at 3, 4, 5 in the morning,” he
said.

“When it got dark,” said Williams,
“nobody moved.”

As Spencer was led into the death
chamber, Von Schuch said: “That’ s
Timmy. They got the right one.’

Virginia has executed 24 people
since the reimposition of the death
penalty was permitted by a 1976 U.S.
Supreme Court decision. The total is

the third highest in the country, be- :

hind only Texas and Florida.

“He

Tymnes- Drs i A

Thursday, April 28, 1994 A13

Richmond, Vieginia

inch te


0 WINANTWSBOSTIGN! <5 767

- Citeas 5 F.3d 767 (4th Cir. 1993)

cause: the trial court ‘denied a: discovery: re-
quest: for: Lifecodes’:worknotes :‘and”. memo-
randa;"the trial:court: refused : to provide
funds: forzan;expert-defense witness, and: the
prosecution:did. not reveal -evidence ‘of: prob-
lems: withs Lifecodes’ testing: methods. To
reach these claims under -the actual. inno-
cence exception of Sawyer v. Whitley, —
U.S. —, 112 S.Ct. 2514; 120 ‘L.Edi2d 269
(U.S. 1992), we must-find that Spencer has
shown “by clear‘and convincing evidence that
but for a constitutional: error, no:reasonable
juror would have:found the petitioner eligible
for~the death: penalty under ‘the: applicable
state. law.” «. — US. re
2515. - ; ig” an

Even if we assume, without dackdiiig. that
the three alleged errors Spencer | points to
are of constitutional dimension, we ‘have diffi-
culty in applying the Sawyer test. ° We note
that Spencer has not articulated ‘what: effect
the absence of these presumed errors would
have had on.a reasonable juror. - Instead,
this.:entire case has consisted! of possible
mistakes he might find and argue to the jury
if his requests were granted.? Elsewhere:we
have examined the admissibility , of the DNA
evidence ‘and found no error, SO, ‘to give
validity’ to ‘Spencer’s contention, we “assume
that the argument goes that ‘his cross-exami-
nation “of” the’ Commonwealth's ‘witnesses
would have been helped: We are of opinion,
and so-hold, that this record does not support
a finding that, even ifthe claimed°errors had
not o¢curred, no reasonable juror would have
found Spencer eligible’ for the death penalty.
under applicable state%law. -

Sy tee be eR 9 Pew ES ao hen 4%, ane CF
“ass e sey he “a

“Tt is the duty’ ‘of federal courts” on hdbeas.
“review to" “sit to ensure ‘that individuals. are

cad ‘imprisoned in violation’ of the Constitu-

” “Herrera, — U.S. at ——, 113 S.Ct.
ri 860: “We must: always be ‘mindful’ ‘of’ our
duty to correct these errors, “but: not ‘to | go so
far afield that we are invading: the : province
of the States. We find no error concerning
the Commonwealth's treatment ‘of. the DNA

evidence i in this case. a “Before . ‘we an a erant

MZ ai

9, ‘For’ een in .arguing an it was‘ error: for
the trial ;court to deny his,.request for Lifecodes'’
worknotes and memoranda, Spencer. states:

“Had the defense had access to Lifecodes’ under:
lying data, and had funds for an expert been

habéas ‘relief, ‘a«petitioner niust’ show ts ‘a

violation’ of the Constitution, laws, or'treaties -

of the-United States,-and not'the. mere possi
bility:ithat one might ‘have‘occtrred.'* 7.1
“Phe judgment°of the district: court Wehying
Spencers" application - ‘for a ‘writ’ “of habeas
corpus’ is acéortingly © wba W993 ao

AFFIRMED. mera est ey

» Seley’ ‘WINANT; Dored: M. Gerold,
_ Plaintiffs “Appellees, ‘ond

s Marlowe F, BOSTIC; F. Roger Page,
. ania ade ican aoe

~s 8

et

Peter P. pees III; Patricia
A Green, Defendants.

"Robert T. DeSMEDT; Dale Ss. DesSmedt,
aise ieee ai a!

Marlowe F. BOSTIC; F. Rogie Page,
~ Defendants—Appellants, : "
Peter P. Green, II; Patricia
F. Green, Defendants.

~ James N. STANARD; ‘Janet G:
Stanard; John S. Donnell,
Plaintiffs-Appellees, ie

soe ae Ve. Per eee
_»Marlowe F. BOSTIC; F. Roger Page,
ve Defendants-Appellants....
~ Nos::92-1975,: 92-1976 and: 92-2164.

- - United States Court of Appeals, _
heer Fourth Circuit. Rae

bk °

Argued. “June q. 1998. .
acres phan: 21; 1998. :

5) ae oye ed

~

Sate

Puieiesie’s of lots sued rasvalaiets eae
ing damages or rescission based,,on fraud,

approved, it is quite ‘possiblethat‘sdéme of the

. serious, problems --with Lifecodes’-::procedures
could have been. developed i in this trial.” ". Appel-
lants’ brief at 42.


a

Ajlington Reopens . 1934. Rape-Murder Case

By Dana Priest

Washington Post Staff Writer

Hes fteee

Arlington police have reopened a
much- -publicized 1984 rape and
murder case in light of evidence
gathéred in a current and unrelated
murder case, Commonwealth At-
torney Helen F. Fahey said yester-
day.=

Carolyn Jean Hamm, 32, a Wash-
ingta€n lawyer, was raped, bound
and Banged in the basement of her
Arlirfgton house. David Vasquez,
who-pleaded guilty to second de-
gree=murder during the Arlington
Circuit Court trial of the case, is
serving a 35-year sentence for the
crim€,

Potice spokesman Tom Bell said
yesterday that detectives are inves-
tigating the possible involvement in
Hamim’s death of Timothy W. Spen-
cer, 26, who was charged this year
with Tapital murder, rape and bur-
glary in the strangulation death of

AVE SF
hh tase a “Fairlington resi-
dent. He has pleaded not guilty to
those charges.

“Until such time as they are
ready to charge Timothy Spencer
with Carolyn Hamm’s murder, I

‘would not have any comment on

any ongoing police investigation,”
said Spencer’s attorney, Thomas J.
Kelley.

In April, Spencer was indicted in
Richmond on two capital murder
charges in the strangulation deaths
of Richmond residents Debbie Dud-
ley Davis and Dr. Susan Elizabeth
Hellams. Kelley has said that police
have told him they have linked
Spencer to the three murders
through DNA tests of semen.

Fahey said yesterday that DNA
tests in the Hamm murder are not
possible because the remaining se-
men samples are insufficient for
testing.

Bell said police had no concrete

evidence linking the two men but
that circumstantial evidence in the
two cases and unresolved questions
about the Hamm murder prompted
them to reopen the case.

Bell said detectives working the
Hamm case had believed Vasquez
may have had an accomplice. Bell
did not rule out the possibility that a
reexamination of the evidence could
exonerate Vasquez.

In a telephone interview from
Buckingham Correctional Center in
Dillwyn, Va., Vasquez said that two
Arlington detectives visited him
March 18 to discuss the case and
ask if he knew Spencer. He said he
told them he did not. He said the
detectives showed him photographs
of six men. He said he did not rec-
ognize any of them, but assumed
that one of them was Spencer.

Vasquez said he pleaded guilty
because he was confused and afraid
of receiving the death penalty.


Ye

SP ENCER ,

Timothy Wilson, black, BR VAP (Richmond City)

che

of four, is executed

©

BY FRANK GREEN
MIKE ALLEN AND BOB PIAZZA

TIMES-DISPATCH STAFF WRITERS
Rrchm on d VA

JARRATT — Unbowed and unrepen-
tant to the end, Timothy Wilson
Spencer died silently in the electric
chair at 11:13 last night. He was the
first man to be put to death because
of a new forensic test commonly
called DNA fingerprinting. .

Spencer was executed for. the.
Sept. 19, 1987, rape and murder of.

Debbie Dudley Davis. It was the first
of four murders committed by the
serial killer and sexual sadist widely
known and feared as the “South Side
Strangler.”

When the warden asked Spencer if
he had any last words, he said, “Yeah,
I think ... ” Then he fell silent,
blinked and looked around. After
about.20 seconds, he nodded firmly
for officers to proceed and the leather
death mask was strapped on his
head.

As if to haunt his accusers, a killer
synonymous with sadistic rage took
his secrets with him.

“This is Timothy Spencer’s re-
venge,” said W. Ray Williams, the
Richmond detective who hunted him.

“He says, ‘I don’t have to talk, and I

4 9 9D

won t.

F-29- Gy

-- In 1988,Spencer became the first
man to be Convicted of capital murder
on the basis of DNA, a crime-fighting
technology developed in the last deé-
ade that linked him to all four mur-
ders and led to his four death sen-
tences.

.. “It’s been heart-wrenching from:
the word:go. ... We’re glad that’s‘it’s '
over,” said William Dudley, father of

Debbie Dayis, after the execution
A carried out. “Maybe we can put
is behind us. now,” said Dudley,
reached in Lynchburg.
Shortly after the execution, Virgin-
ia Attorney General James Gilmore
said that “while nobody likes to have

to carry out an execution, this’ is’

exactly the kind of horrible conduct

that will not be tolerated by civilized

people.”

“Above all,” said Gilmore, “it’s.
very important we remember tonight °

the victims of Timothy Spencer.”

Described by those who, knew him

inside and outside of prison as some-
thing of a loner, Spencer largely Te-
mains a puzzle, a sometimes plea-
sant-looking and easygoing man ca-
pable of savage torture. hy
He spent 70 minutes of his last day
at the Greensville Correctional Cen-
ter +~- less than the allowed time —

PLEASE SEE SPENCER, PAGE A14 >

April 27, 1994

V SPENCER FROM PAGE Al

with his brother, mother, untle,
grandmother and grandfather. Spen-
cer refused to meet with the FBI and
turned down requests for interviews
from the media. He even asked au-
thorities not to disclose his order for
a last: meal.

Spencer strode confidently into
the silver-gray death chamber, then
rubbed his newly shaven scalp and
Stared straight up at the clock over
the electric chair before guards seat-
ed him. His last outfit was gray show-
er shoes, a powder-blue shirt, and
jeans ‘cut off at the right knee to
improye the flow of current. Snaps
and zippers were replaced with Vel-
cro to avoid an electrical short.

A chaplain rubbed Spencer’s back,
then stepped into the witness booth
and softly recited the Lord’s Prayer
as the executioner — hidden behind
a one-way mirror — pushed the
green “execution” button.

After execution, a prayer

Spencer received 1,825 volts at 7.5
amps, for 30 seconds, then 250 volts
at 1.5:amps for 60 seconds. Then the
jolts were repeated, ‘a legacy of a
1991 execution when the prison doc-
tor found the condemned still alive
after two shocks.

After the third jolt, drool ran down
a face'strap onto Spencer’s shirt. His
left arm slipped off the arm rest.
Smoke rose from the contact at-
tached to his right leg. The other
conta¢tt runs through the helmet.

An‘unusually large crowd of more
than 40 capital punishment oppo-
nents, gathered in a field. outside the
Tural prison an hour before the exe-
cution. They huddled around a table
covered with tiny colored candles,
prayed and sang “Amazing Grace.”

“We pray you, oh God, bring an
end to the death penalty in this coun-
try and all countries,” said Episcopal
Bishop Frank H. Vest Jr.

People in the crowd held signs that
read: “Thou shalt not kill” and,
“Blessed are the merciful.”

A smaller group of high school
students stood 'to the side during the
service cracking jokes and smoking
cigaréttes. The teen-agers said they
came’ to the execution as part of a

government class.

’

— jpe.

2

'

; 4 tenced to die

‘; Staples Mill Road. Stamper, 38, was
‘}fonvicted of three-counts of capital

WK 4%

Obituaries: 2 '
Lifestyles" 6)
Television *. 8
Entertainment 9

By Joseph Williams
Times-Dispatch staff writer

- A federal appeals court yesterday
upheld the capital murder convic-
tion. of Charles. 'S. Stamper, who
killed three people during a robbery
ES Henrico County restaurant in

__A three-judge panel of the 4th US.
Circuit Court of Appeals rejected ar-
guments that Stamper’s trial lawyer
was incompetent and that the cir-
cumstantial ~ evidence against him
wasn’t enough for a conviction.
The evidence against Stamper
“sufficiently .supports inferences
upon which a rational trier of fact
could render.a verdict of guilt be-
yond a reasonable doubt,” according
to an opinion issued yesterday.
Stamper, a former cook, was sen-
for the March’ 1978

fj--fnurder of three co-workers in the

“Shoney’s Family Restaurant at 7708

tal verdict up

mper arguments denied

murder for fatally shooting Agnes
Hicks; a waitress; Franklin D. Coo-
ley, a custodian; and Steven Lee Sta-
ples, the night manager..  - :
‘Evidence introduced at the trial

showed the victims apparently knew -

Stamper and let him in as they pre-

pared to open the restaurant Shortly.

before dawn. It showed that Stamper

_ forced Staples to open the safe, took

about $4,000, then opened fire,

Witnesses testified they saw a car
resembling Stamper’s entering, then
leaving the restaurant parking lot
about the time of the murders. Po-
lice found one victim’s car keys and
a pistol in the woods near Stamper’s
parents’ home; bullets and spent car-
tridges in the gun matched slugs re-
moved from the victims. :

Shortly after the slayings, Stamp-
er cleared several overdue debts,
made a down payment on a $120
watch and negotiated to buy a used
car.

In November 1978, a Henrico jury

‘capital murder and sentenced him to

convicted Stamper of three counts of

death.

Stamper, who has logged more
time on death row than.any other
state inmate, is partially paralyzed
as a result of a 1988 beating by two
other inmates. -

Stamper’s appeal centered on the i
fact that the evidence presented |
against him was entirely circum-
stantial. There were no witnesses to i
the shooting, none of Stamper’s fin-
gerprints was found at the scene.

But the appellate court ruled that
the evidence presented — and the
inferences the prosecution made to .
the jury — was properly considered
by the jury.

Stamper also argued that the trial
lawyers used improper tactics and
failed to properly object when the |
court excused four prospective ju-
rors because they said they couldn’t
impose the death penalty.

i vented him from full

By Mike Allen

Times-Dispatch staff writer 7.
Lawyers for a man scheduled to be
: electrocuted tomorrow claim ina

last-minute appeal that his mother is

a drug dealer who beat him, en- ‘alee a message left with her

snared him in her business, then pre-
defending
himself in court. :

The document, filed yesterday

‘with the Virginia Supreme Court,

Says that Derick L. Peterson’s exe-

‘Cution should be delayed until a
‘ court decides whether he was sen-

tenced unconstitutionally.

The appeal blames his predica-
ment on his mother, Eloise Peterson

' of Hampton, who made a tearful
plea for her son’s life at a news |

Conference at the State Capitol on
Monday.
“Eloise was the source of [Peter-

' son’s] problems from the cradle to

his capital trial,” Says the 97-page
petition, filed by Richmond lawyer

i

Gerald T. Zerkin. =<”

The filing lists eight drug- and al-
cohol-related: charges ?against Ms.
Peterson but doesn’t Say whether she
was convicted on any of them. -

,

Ms. Peterson did not immediately
granddaughter. At her news confer-

. ence, she said she had her son when —

she was 16. | “ a 4 al

“I don’t Sapa ae had a fair
chance,” she “Growing up...
was very hard for him because f was
growing up with him.”.

Peterson, 30, was convicted of rob-
bing and shooting a Hampton gro-
cery-store manager to death in 1982.
Two years later, Peterson was one of
six inmates who escaped from Death
Row at Mecklenburg. Correctional
Center. ; :

His lawyers have asked Gov. L. .

Douglas Wilder to change the sen-
tence to life in prison, They claim
that juries rarely impose the death

Richmond Times-Dispatch

eld; one appeal pending
Execution set for tomorrow om

penalty for single-shot killings,

The request was being considered
last night, a Wilder spokesman said,

Zerkin said in yesterday’s filing
that Peterson has brain damage and
was mentally disabled when he ‘was
tried. ee

The ap Says that Petersbn’s
former orpee had a at Plein in-
terest because he also represédted
Ms. Peterson on many c ninal
charges and so could not ethically
present evidence that she corrupted
him.

“She narcotized him in her womb,
she narcotized him in his crib, she
narcotized him in his school and then
she made him into her employee. She
beat him, she neglected him, and she
doped him,” the document says..

“The jury that convicted Derick
Peterson and sentenced him to death
knew virtually nothing about his his-
tory and background.” ~


_ avenues on June 16, 1986. Delong

-say. how often Delong and other

. ,,LeVasseur, the last death row in-

hanged in a cellblock shower stall.

Killer i is forts dead i in cell”

Execution was set for July

“et BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER

vu

“Kenneth Wayne Delong, a former Virginia Beach pipe ~

fitter sentenced to die for the 1986 slaying of a Richmond

_ police detective, was found dead in his prison cell yester-

day. He was scheduled to be executed July 15.
. An officer at the Mecklenburg Correctional Center last

Hight confirmed that Delong’s body was discovered yes-
terday morning. He said further information would not be —

released until today.
_ (Edward W. Murray, director of the Desartanent of

. Corrections, could not be reached for comment. Other
' state officials said they either were not aware of the death
-orthe details surrounding it, or could not comment on It.

‘last night.
afThere will be a determination of the cause of death,
1ether it was suicidal, accidental or natural causes,’

Said Virginia’s secretary of public safety, O. Randolph

Rollins.

df suicide, it would be at least the third time in state ; |

nbd biti o ~

V INMATE FROM PAGE Al

was driving a car also occupied by
two friends. .

Taylor was shot in the chest at
close range with a .45-caliber bullet.
Taylor, the father of two, died several
hours later. It was Father’s Day.

_Delong’s most recent appeal failed
and: an execution date of July 15 —
the.day after his 38th birthday — was
set last month by Richmond Circuit
Judge Robert W. Duling.

Generally, 30 days prior to an exe-
cution, condemned men are placed
on ‘even stricter watch than usual.
Delong was only a few days away
from increased scrutiny.

. Neither Decker nor Rollins could

ie Te

history an inmate on death row has killed himself. The
most recent case was in April 1987, when John Joseph
LeVasseur hanged himself.

Rollins said last night that it was “my understanding

. . that [DeLong] was found dead in his cell and that they
are still looking into the cause of it.”
But, he said, “my information is probably 8 hours oldat

this point. I’m sure, since it was Sunday, they’ re going to

plan for an investigation starting [today].”’
‘Peter Decker, chairman of the State Board of Correc-

tions, ‘said he knew nothing about the death. If it was . :
» suicide, said Decker, “he’d have some difficulty doing it ||
with the rules [and extra security] that we have down i

there.”

Delong, 37, nicknamed “Buffalo,” had a reputation asa |:
tough guy even among the approximately 50 death row . |
inmates. It was a fight with Delong on death row in 1988 °
that, in part, led to the paralysis of Charles Sylvester
Stamper, who had to be lifted into the electric chair to die. —

Delong was on probation for a 1978 second-degree

murder conviction when Richmond police Detective
George R. Taylor stopped him at Davis and Kensington

PLEASE SEE INMATE, PAGE A3 >

death row inmates are ordinarily
checked in their cells. ‘““They’re un-
der fairly close watch,” said Rollins,
but, “I’m not expert enough to say
what the frequency is.”

Rollins said that little had been
said of the death because “there
would be no reason to make a public
statement about it. What’s unusual

Joseph Robinson of Portsmouth,
an inmate on death row at the State
Penitentiary in Richmond in 1954,
also hanged himself with a strip torn

from a sheet. Robinson committed
suicide, two hours before he was to
die in the electric chair, corrections
officials said.

here is that he was on death row.”
mate to kill himself, was found

e.used a strip of a sheet tied to a
shower head.

_ LeVasseur was sentenced to death
for the murder of 19-year-old Pamela
Brenner of Woodbridge in Prince /
William County. She died of stab/
wounds inflicted with an ice pick an
carving fork in February 1982 in he
home.

FILE PHOTOS

DEATH CONFIRMED. Kenneth Wayne Delong (left) was scheduled to die
in the electric chair July 15 for killing George R. Taylor (right).

‘ ed


Wilder Lifts Stay, Orders
Execution of Disabled Man

' Virginia Gov. L. Douglas. Wilder yesterday
ordéred the Jan. 19 execution of Charles S.
Stamper, a convicted killer who uses a wheel-
chair and to whom Wilder had granted a stay
of execution.

In October, Wilder stayed the ‘execution
because he wanted more time to study Stamp-

' He was convicted of killing three people i in
the robbery of a Shoney’s restaurant in 1984.

’ er’s medical records. Stamper’s attorneys had |. ~: ...
- asked the governor to commute the death sen-
 tence,. saying their client was no aie: a aa
' threat to society. F.*
Stamper has used x wheelchair since receiv-
ing a head injury in a fight with another death- |
_ row inmate. .


\o-db- 49, |
Victim’s Relatives
Urge Va. to Execute

Convicted Killer
by Py de . : cat ‘ F
Eleven ‘relatives of a slain Vir-

ginia woman pleaded Saturday
with Gov. L. Douglas Wilder to.
allow execution of her convicted
killer.

Last week, Wilder temporarily
stayed the execution of Charles
Stamper, who was convicted of
killing the woman and two co-
workers in the robbery of a
Shoney’s restaurant in 1984. His
execution had been scheduled for
Wednesday, but Wilder said he
wanted more time to. study
Stamper’s medical records.
Stamper has been confined to a
wheelchair since receiving a
head injury in a fight with anoth-
er death-row inmate.

The relatives of waitress Agnes
Hicks said Stamper’s disability
should mean little in Wilder’s de-
cision. “If [Stamper] hadn’t done
what he did and been put in pris-
on, he wouldn’t be where he’s at
now—in the wheelchair,” said Ja-
nice L. Johnson, of Richmond, one
of Hicks’s six children.

Wilder told the relatives dur-
ing an open house at his office
that he will consider both the
seriousness of the crime and
whether Stamper could be dan-
gerous in the future in deciding
whether to allow the execution.
The governor said he may call in
a doctor to do an independent
examination of Stamper.


me) ae 4

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imes-Dispatch

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{Persp
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£

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2
Ee rae

PE is Sas t pe

Tes : :
*--- By Gary Robertson eae rs ee
} Times-Dispatch Staff Writer ne
t They paid with their lives
= The youngest was 16; the oldest, 83. There has
fh) . : been one woman. Overwhelmingly, by a margin of
© nearly 6-1, they have been black.

4 In nearly three-quarters of a century, 236 people

‘have faced Virginia’s severest punishment, death
by electrocution.

Before the electric chair was installed at the

State Penitentiary in 1908, capital punishment

, meant public hangings, with each jurisdiction per-

et oS

ta: sal esi ne i eee kes nie. . 7
ay
ee spe: & € om a eee
=e 2 ca Se] Lay Cs SERN S

Si! ing, deciding that electrocution was more humane “ery, one; rape and robbery, one. ~

ecti

_ ta

re Pee

O ‘
4

e te

att
a

ir Seiten

and less a spectacle.

electric chair’s first victim on Oct. 13, 1908. ¢ parallel,

re

rape in Virginia. But more than 50 blacks have. In part in a 1912*gunbattle in the Carroll County ~ With a

international outcries of discrimination. ~ sheriff, were killed. ign
_ Murder, by far, has earned the electric chair for Yet, as the hour of their executions approached,

the largest number of felons, 176. Rape or attempt-. sentiment grew to have their sentences commuted, »

|". forming its own. , ed rape is next with 53, then robbery, four, highway . Many believed the gunbattle was part of a moun-

He ' The General Assembly finally abolished hang-

~_ Sentencing —

pei Se
“s

ee consistency
Is perceived

ae te

¥e

* — Charles Stamper took a while coming
j to to the visitors’ room. For the walk from
! “\..- 9). his cell, he was in manacles and chains.

eed: Stamper, 29, has been on death row at
i 7 the Mecklenburg Correctional Center
“fs s" 9 ‘since March 1979. He is under three
2s Z
f

‘I want to be a man a

bout

U

— More than anyone---~

‘3 Bat Isé — for the execution-style murders i
C0 ae f three Henrico County restaurant ETMag, 5,
i Rivne —

nlovees during » 1070 +

robbery and attempted rape, one; highway rob- tain feud that included not only the Allens, but also.

mS

ae BR
i 5

, certain officers ‘of ‘the court.
: ©+ For minute-by-minute drama, the hours leading
Henry-Smith, a 22-year-old black convicted of - up to the executions of Floyd Allen, 56, and his 23- on

rape in Norfolk County Circuit Court, became the year-old ‘son, Claude, on March 28, 1913, have no” J

- When Gov. William Mann left the state.on busi-: Bliley Funeral Home.at Third

ess, the Allens’ sympathizers approached Lt. Gov. } streets, a crowd put at. 12,000. to

ames‘ Taylor Ellison and urged him to act, As“ their open coffins. , 2 99s...
“of mrrdar fo. shaig, pay lor weighed his decision, Mann was alerted and.

No white male has ever been electrocuted for The Allens were: convicted of murder for their’ rushed back to Richmond from New J -

= Il hopé. gone, ‘the Allens went to

1951, the execution of seven blacks in two days for’ courthouse in which five people, including the pre-* deaths with dignity. The final exchange:

, the rape of a white Martinsville woman prompted siding judge, the commonwealth’s attorney and the , father and son became famous:

Meet in a happier Jand.”
“1 think we wil
ded."

Sgt. E.L. Ruffin turned the:ke:
metal door swung open, it squeak
that opens on death row and the
expect a groan, at least 'a ‘squeal: shee

Just inside the door is a narrow corridor that a _and laugh at the feeling,
writer once described as.“quiet, foreboding, heavy":
with the finality of death.” A loud humming sound ;
filled the corridor — not from the electric chair;
but from an old refrigerator with a click in its
motor. The refrigerator was empty. * :
- “It’s been about three weeks since we had any- = %
body in here,” Ruffin said.“‘As soon as we get them” BEN, ” at = leg. ie j :
in, we send up to the kitchen for juices and soft bs bien mo on ough ra electrodes. A
drinks. We let them have what they want. It’s the abt fetaet for: ppiricreteel: eeleaion td
Way we've always done it.” % stouMa wes <tr ss

The men Ruffin has seen on death row at the J™Prove its conductivity. The brain dies quickly,
State Penitentiary have usually been thirsty and Across the room from thé elec
hungry. Their t
laughed and told jokes and talked a lot.

them pretty good.”

under sentence of death

© SPRCren

an

hricht ter

ceilin e. Ti air, seconds apart, °
heavy oak with 1

ser Oy

~~ his son, af 1:35, When their b

Sy

of

From the door :

reporter doesn’t laugh.) >!

be

rays are returned clean, They’ve glass-paneled witness room, from

' Periodic checks are performed

tt bulbs: In:

¥.

ed)

‘arge screws at its stress points,1s° Ruffin put his key in the lock to de
ve Aadkata ists * is

eaeetel ay

“- c +. 6 ~

As the heavy The-chair loses its friendly character when you
‘move: closer.’ There are’ chest straps and arm
Straps and leg straps, like wide leather belts. As a
: er sits down, to say he has been ip the’chair
Ruffin moves back. The

oe “In an actual execution, a leather strap would

cover the eyes ofa condemned man so. they
-.wouldn’t bulge at the first surge of current. Cur-
Tent would enter: the body through 5 ike

»-and volunteers view the proceedings. A trash ¢an._
“T'll be honest about it,” Ruffin said. “They take “with a plastic bag inside is_nearby, Sometimes
it as kind of a joke. They know they aren't really. Witnesses get sick. «+ Ri sees Splatt
going to the chair and they like it here. We treat’ Although a governor has never Stopped an exes; §
Qo 9 He t -cution as it was under way,.a hotline to his office
It has been 20 years since the last electrocution’ always is connected, just in ¢ase. In the history: of.
at the penitentiary, which is the only place an. death row, only one man has executed himself, by
execution can be carried out. Eighteen men are hanging. He made his sheets into @ noose. 9.)
in Virginia. |. -- ~ After an execution is performed, the victim is
They are confined at the Mecklenburg Correc-. examined by a state physician, who
tional Center until 15 days before thé execution. Then he is moved to an adjacent “cooling room
date, when they're moved to the penitentiary pend- where sandbags are applied ~ the joints lock an
ing appeal. In recent years, the closest anyone has _Stiffen during electrocution + to straighten hd a
, carpet uages ele eat

’'the chair is always ready to perform its job. One of
the checks involves lighting a battery of 20 100-

x “34°

i La
who shot'their@way out of the OOF ae

" ng Mtge
BF coe ances er ee

place, would be

tric chair is a
which officials

:

Fy

certifies death.

to ensure that

s,

‘ “SF ee
ath row’s dank

7
&

dj

See"

ee Oe Be


since March 1979. He is under three

a

Ry want to bea man. 1 about

nces. — Tore. an ‘anyone -n=4 -
else-— for “the execution-style murders y
; ~. of three-Henrico County restaurant ems,
v2 ployees during a 1978 robbery.

ee He maintains his innocence, but’ ‘his.
i). appeals are running out. :
a Twice this year, Stamper has taken e
the long ride to the State Penitentiary :
and a date with the electric chair. Legal
maneuvering sent hint back to Mecklen-.*

_. burg each time. g
es: During his last visit to the penitentia-
“i ry, he felt a compelling urge to see what
was behind the locked door.

“There was an officer there and I said,
‘Let me back there to look at that thing.’

“He said, ‘Why?’ I told him I just had a
feeling I'm going to come across it one
day. It’s like you've got a big fight com- ;

*... ing up and you want to look at your
~.) “| opponent, you want to study his moves. I

'* wanted to know what I was ‘coming up
against.”

Stamper was not permitted to see the. .
electric chair. His guards told him they
couldn't permit that. They could lose
their jobs if they did. .

When he returned to Mecklenburg, he ..
told his friends.among the 17 other men
on death row what he’d felt. Several of ©

mE! a ot

- Continued on Page 2, Col. 1

drinks, We let them have what they want. It’
away we've always. dong it.” +"
The men: Ruffin’ has seen on death row’ t

the
the

nae ‘Their trays are returned clean.;: They’
aanhe and told ‘jokes and talked a lot." :
-: \“T'1L-be honest about it,” Ruffin said. “They t
‘it as kind of a joke. They: know they aren't really”
“going to the chair and they like. At ‘bere, We, treat”
them‘ pretty good.”. © ©
© It-has been 20 years since the ‘Tust piceerocstion’?
‘at the penitentiary, which is the only place an.

under sentence of death in Virginia. :

‘They are confined at the Mecklenburg Corre.”
-tional Center until 15 days before thé. execution:
date, when they're moved to the penitentiary pend- ’
‘Ing appeal, In recent years, the closest anyone has
me to, execution has been 37 hours, ”

walis anc cel ling are white. The electric chair,
cheavy oak with lar rews at its stress points, is :

INSIDE DEATH ROW — Sst. E. L. Ruffin

steps from the door to death row, the electric

“State Penitentiary have usually: been thirsty and: i ‘Across the ‘room|

execution can be carried: out. Eighteen (ren are.

“He started pushing it shut. Tt might’ve been |

keeps a watch on death row at the State:
Penitentiary. Down’ a short: hall, about 25°

BUGELE prety Least py

_ soaked in: brine for a day before execution’ to”

improve its conductivity. The brain dies quickly.
the electric chair’ is a
glass-paneled witne i
and volunteers view

‘ witnesses get sick. ae

Although a governor has | never tonal an exe
‘cution as it was under way, a hotline to his office”
“always is connected, just in case. In the history: of,
death row, only one man has executed himself, by
hanging. He made his sheets into a noose,

After an execution is performed, the. victini is
“examined by a state physician, who certifies death.
Then he is moved to an adjacent “cooling room”
where sandbags are applied’ the joints lock and
stiffen eanng Slectrocution: ~ Sioa ‘Straighten the
corpse. '

id ‘Periodic rcheckae are ‘seetietied to ensure that
“the chair is always ready to perform its job. One of

the checks involves lighting a battery of 20 100- —
toalbs. In ‘ac ee een. :

seconds apart’ ror oe ae
Ruffin put his Nay in the ‘Jock to death row s deen,

*

but this time the door groaned

Staff Photos by ‘Tommy Price :

chair (left) ‘awaits. To date, 236 persons have -
‘taken that, last walk. Eighteen men currently °
-are under’ a death sentence in Virginia, and
cet appeals are amine out, ” :

renee

Ye

* : ame EC

_ Stockman hanging on

me By OwWén Ullmann
«Associated Press Writer:

WASHINGTON — “None of us really
understands what’s going on with all

__, these numbers,” Budget Director David

Stockman confessed in the Atlantic
Monthly.

He was right. And because he was, this -
star of the budget wars in 1981 has been.
eclipsed by other stars in the budget
rematch of 1982.

He's still the brash wizard with all the

.. Numbers, but he’s no longer President
_ Reagan's surrogate.

And instead of storming through Con-
gress’ doors as he did last year, Stock-
man seems more like a congressional -
waiter serving up figures _ but not poli-

LAD Tri

‘that role. He is not in the spotlight; he ;
‘works behind the scenes and behind
closed doors. He does not dictate ©
changes in the president’s budget; he ,

offers proposals to a Congress that repu-
diated the president’s original budget.
A year ago, political pundits speculat-
ed about Stockman’s ambition to be
president. Now, the rumor mill grinds

out stories about his imminent resigna-.

tion, voluntarily or otherwise.
“The situation is entirely different this

“year,” said Edwin Dale, Stockman’s

chief spokesman. “Last year, he tried to
bulldoze the budget through Congress.
But it’s not his budget this year. It’s

Congress’, and he does a lot more listen- °

ing and providing of figures than be does

ia

In, one important reipdt Stockman-">:
has not changed. To the extent that any- _
one really understands the budget, he —
understands it better than anyone.

His supporters and detractors say that
that is why Stockman has survived. And
that is why they say his influence in _

“shaping the budget, though impaired, ©

should not be discounted.
Provided budget figures

“I think he had a lot to do with getting
the president to compromise with Con-
gress on a new budget this year, ” a Sen-
ate Republican source said. Moreover,
the source said, all the budget alterna-:
tives drafted in Congress this year were
based on figures provided by Stockman. .

The budget director also has a close
rolationshin with chief of staff Baker.

a a mM
“ised for 1982’ has grown to "$100 billion.
The balanced budget has become a dis-
tant dream. The promised economic re~,
-? vival dissolved into a severe recession
_and higher unemployment. The dramat- .
ic drop in inflation came as promised,. . . turned out to be right.
but interest rates refused to follow. ;
In November, a political bombshell Sought higher = i
? ‘nearly shattered Stockman’s career. On" % « During preparation of the 1983 Piast :
: the day he turned 35, Atlantic Monthly.‘ plan, Stockman tried to get Reagan to
"distributed copies of an article in which | ‘seek higher personal taxes to keep the -
he expressed grave doubts about “Rea- ~_, projected deficit from growing out_of .
ganomics” in a series of interviews with | control. Reagan nearly. went along with
an editor of The Washington Post. ‘* Stockman, but then refused at the last
Stockman kept his job after a verbal :., minute. Instead, the president sent Con- -
‘spanking from Reagan and public contri- @. gress a budget plan ae for = :
~ tion for his transgressions. But he did not <’ , deficits. ‘
‘ keep all his power. _ Even before the red ink was dry, Cone :
He no longer seemed tobeon the same’ gress rejected it. That left Stockman in”

ina af ey bly

cit, Stockman saw a more pessimistic ‘
‘possibility: growing deficits:ef unprece-:
dented size that would keep interest
rates high and the economy sluggish. we :

BS og es


Es.

Sig ke

>
ry

Oe Ee

+

ORE SAE RRS

Sa

-~ hair, t had no hair,” he joked.» +?

airmen in neting se

wae,

~

eee hse ULI, PUWEL »

sponded pretty much ‘in kifd,” recalled Donald plant. The state's Public Utility Commission later *’.

“chwartz, a Georgetown University law’ professor’. asked the company to abandon a second reactor at
ho-acted a$ counsel to Campaign GM:" *- Limerick because of lack of funds.“ «
“Remember, this was right after the ’60s. They «”
tpected to see a bunch:of long-haired, freaked-out =

kidg.1_was 40 years old. Not only did {not have dong:

16 e

“ Continued From First Page s
chair. “They talked for hours.

“Talking, about death, about life, about their fam-
ilies, about tomorrow, is a consuming and constant ©
. activity of the men on death row, according to
Stamper. Like them, he said he has become a great

talker:

“We share a common bond,” Stamper explained: "es
“If you're with somebody 24 hours a day, you get to
know them pretty well.Some of them you like and.

: some” “of them you don’t. ~

Continued From, First Page. ©

convicted of murdering 4 a ‘Federal Reserve truck ~~

drivef. ““.
Authorities’ recaptured them several months lat-

\ er and they were electrocuted Feb. 2, 1935. Mais’

body was returned to his home in Philadelphia.
Legenza’s remained in Richmond and ‘thousands
pressed to view it at a funeral home.

“I've never seen anything to equal the morbid
curiosity of these people,” one attendant was
quoted as saying. “We have had hundreds of moth-. :
ers’ bring children as young as 5. and 6 years: with °
them for a look at the body. w i

By: contrast, the last execution in Virginia,‘ on

March 2, 1962, more than 20 years ago, went almost

unnoticed. A newspaper account devoted paly. a

three paragraphs to it.
“Carroll L. Garland, 26-year-old Lynchburg Ne-

gro, was executed at the State Penitentiary today >

e Possess as much legal. ‘knowledge, petary

236 have been c executed
in n Virginia electric chair

capital punishment on every person convicted of
.j,, Murder, thus raising: questions about - the death!

*“mines whether the death penalty or life...

for’ the robbery slaying of a service station atten-

dant.
“Garland was pronounced dead at 7:39 a.m.

“He was convicted of murder and sentenced to “
die in the electric chair in 1961 forthe death of.

Jimmy N. Nuckles, 27, Madison Heights, on May 28,
1961,” -
There are. 18 men on death row in Virginia. No

“But like each other or not, you got to get along,

them had felt it, too. They had wanted to see the The administration doesn’t like anything aggres-”

‘s2 ‘sive between inmates on death row. If one man
messes up, it’s held against everybody. We pretty: | s

“much patrol ourselves to keep things cool.” :

When someone on death row receives an execu-

= tion date, Stamper said the mood changes marked-
'y. Jokes about the electric chair He and ons =

ae a lot of long silences.
Some death row inmates, like Stamper have |
; Made effective use of prison law libraries, and

In 1975, the General Assembly overwhelmingly

“reinstated capital punishment, making it manda-

tory for murder of a kidnapping victim, murder for
hire and murder by @ prison.inmates-
ing rape or rob ere added later.

On July 1, 1976, thé Supreme Court ruled that the - pinishrnent,” Stamper said, “I couldn’t see givinga

death penalty was not necessarily cruel and unusu-_.
al punishment. But in another ruling the same day,
~ the court said states could not impose mandatory

, penalty in Virginia.

__ So, legislators went to work again to make Vir. *
gina law comply. The result, in 1977, was the
General Assembly's adoption of a two-stage trial

_.system in capital murder cases.

e

«dict is guilty, then the same judge or jury deter-

imprisonment will be the punishment. The system © «
«>. caused his family. He has seen his mother “wither”

has survived repeated challenges in state and fed-
eral courts.
Thirty-eight of 50 states have a death penalty

: law. Of the 12.that have abolished the penalty, |

Michigan did it first, in 1847. Vermont, West Vir-

- _ginia, Wisconsin and New York (except for murder

one knows when the next execution will come, or if -

it will. Appeals can go on for years and frequently ; wack

fs

do.
Frank Jimmy Snider, sentenced to death in 1956.

for'the rape of a 9-year-old Roanoke girl, spent

moré years + 15 — on death row than anyone else
in the nation: Finally, in 1969 , his sentence was
commuted to life imprisonment. y

The past decade has been a turbulent one for’

death penalty laws. It began in 1972, when the U.S.
Supreme Court voted 5-4 to invalidate capital pun- ©

ishment statutes in many states, including Virgin- ~

ia, oat) thet they had been ee éapriciously.

png

of a police officer by someone serving a life term)
abolished theirs in 1965.

Electrocution is the preferred means of execu-'
* tion, being favored by 17 states. Ten states use the
" gas chamber; five, lethal injections; five, hanging;
and one, Utah, a firing squad.
» Gary Gilmore became the first. person to be

’ executed in the United States in a decade when he

faced a Utah firing squad on Jan. 16, 1977. His last
words, “Let’s do it,” passed into folk history. Entre-

., preneurs printed the words on T-shirts and sold. 3
them by the thousands. gk.
The last words of the handful of others executed

since Gilmore havernot sold nearly as well.

*-ago when an inmate’s soerane a8 commuted, to:

© said. “You know, the guys used it as an excuse to be

oe was going to’ walk off ‘DR’ [death row].”
-Virginia’s capital punishment laws, Stamper has

“the courts in meting out the death sentence has ©

~ same type of crime in a

. maimed a child or who tortured and raped a

"the state’s capital punishment te ily Stamper ex-
’ plained. Some think “at least fo

Under the system, a judge or jury first deters: we

“execution will be enough to stir thepubli¢ into
“Mines a defendant's guilt or innocence. If the ver-

. banning the death penalty, while another believes ”

:. year-old only as occasional visitors whom he is not
. permitted to touch, because. of security’
» regulations.

M

_ so they wouldn’t have to continue to suffer with .
“> me to be heard,” he said.

"kept a diary. He has recorded his feelings and what

, the time comes that he must face the electric
chair, he wants to do it with dignity.

AAb We diliudl LUCCULR Ul ACLUA SUALEROIGErS hay,

20 in New York, California voted its 1.2° million |/~

 share- *- —pport® of & resoltion to. ‘halt: Xerox: ig
* expai ‘

South Africa.”

“wW

‘about capital sei ‘Caden: as ee attor-
neys, And they use that Knonledes eens one of
their own faces execution! =:° go" =)

y, times you might think of something somebody | has. a7
= overlooked.” f

The only moment of urirestrained joy Stamper
has even seen on death row ¢ame a couple of years

--life imprisonment. «. .» *#
~< “You better believé we had a “celebration,” “he:

happy about something. Here was somebody who
. As a man who has found himself in the web of.

had the time and the inclination to think about
them. What he perceives as the inconsistency of

troubled-him the most.

Someone convicted of murder in one jurisdiction: i

might get the death pena ne A man guilty of the

receive life in prison, and in still another jurisdic-
thesentence might be a 20-year term.
“On some. cases,I..would agreé With “Capitals

life: term, tasomeone who tortured, killed or

woman, unless. he had- some kind . of mental ‘
disorder.” :
Views vary on death row about the future of

or five of uS will

have to die” before capital punishment laws will be.

overturned. :
On the extremes, one group believes a single *

the first execution “will lead to a wholesale rena
ter of all of us.”
One of Stamper’s regrets is for the worry he has

under the pressure. He knows his wife and their 5-"

“Sometimes I would like M4 have it all over with ©

me. But I don’t want to give'up, if there’s a shot for °

fai *

Since he has been on death row, Stamper lias

he has seen. He also has tried to explain, for the
benefit of his son who will be given the diary why
things have happened to him.

Stamper long ago made his peace with death. If*

“T just have one resolve,” he said. “I want to be :
able to walk on my own — to be able to stand up

er jurisdiction could = =|

4 Monday _

» <i east Re i *)
rhe Declaration’o.. apa
*t ag

eed ae ae

y ? 5 Sea ie
“Main idea: To inform n'about ‘the history of th Diclaration of) a
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through the ads in today’s paper each. 35 Reena E
and “‘buy’’ three or more things” be GR et ae ae a ie
you'd like ‘to have. Don’t go over’: Friday ree aig

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figure 42 tax. afents dQ help er . bikes for sales Which is the best 2.

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as you can. Do some research to “DIKES? =>
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fing as many examples: of Bede # oe Ks or write a story abot its, ae ess

4s ae suggestions, please write to:

* Educational Services - Ve
a » Richmond Newspapers, Inc...
P..0. Box C-32333 Richmond, VA 23293,
OR % of call (804) rents q

and take it myeels to be a man about it.”


JULY

GREENSVILLE, VIRGINIA
TUESDAY, JANUARY 19, 1993

WHEN Charles. S. Stamper
went to receive ultimate justice
in the electric chair in Virgin-
ja’s Greensville Correctional
Center, prison guards held him
by his shoulders to help him
walk to the chair. The 39-year-
old inmate had been disabled
during a fight with other pris-
oners in 1988, when his spinal
cord was injured. Stamper sub-
sequently used a wheelchair to
move about, and his disability

Charles Stamper: disability resulting
after his incarceration did not pre-
vent carrying out of his execution.

raised a storm of controversy
around his scheduled execu-
tion.

In 1978, Charles Stamper
had no physical disability
when he was working as a
cook at a suburban Richmond
restaurant. It was at that time
that he committed the triple
murder that landed him on
Virginia’s death row. He was
convicted of shooting three co-
workers to death in order to
rob the eatery of about $4,000.
Investigators later found pieces

8 Inside Detective

of glass in his car matching the
glass from the broken front
door of the restaurant, and
near his relatives’ home they
recovered car keys belonging to
one of the victims, along with a
revolver that matched the mur-
der weapon.

In the decade following his
conviction, Stamper filed a se-
ries of appeals in federal and
state courts. Meanwhile, in
1988, while he was awaiting
the outcome of one appeal, he
became embroiled in a prison
fight and wound up being blud-
geoned with a steel ashtray,
followed by a brutal beating as
he lay unconscious.

Ever since then, Stamper had
required the use of a wheel-
chair, and his changed physical
condition drew the attention of
organizations opposing the
death penalty who decried the
execution of an individual as
severely disabled as he was. In
October 1992, Virginia’s Gover-
nor L. Douglas Wilder ordered
a stay of execution so that he
could fully review the situation
and allow independent doctors
to examine Stamper. After
hearing the opinions of the
physicians and listening to the
pleas made by relatives of the
murder victims, the governor
decided to give the go-ahead for
the execution. .

Charles Stamper was pro-
nounced dead at 11:15 p.m. on
Tuesday, January 19th.

HUNTSVILLE, TEXAS
THURSDAY, MARCH 25, 1993

TEN years ago, on January
16, 1983, Officer John Pasco
age 27, was cut down by gun-
fire as he tried to check out the
reports of shots fired in a

INSIDE DETECTIVE, April, 1994

Ramon Montoya: repeated protests by
Mexican government failed to can-
cel his appointment with justice.

neighborhood in Dallas, Texas.
The subsequent investigation
showed that the lawman was
shot as he was trying to disarm
Ramon Montoya, a Mexican il-
legal immigrant with prior
convictions for weapons pos-
session and burglary. Police
records indicated that Montoya
was afraid of racking up yet
another arrest to make a total
of 12 within a period of 8
years. Montoya himself assert-
ed that he was trying to get rid
of the gun when he saw the of-
ficer, but he fell and it went off,
causing the officer’s death.

In the time since Montoya’s
conviction and sentencing for
the slaying, the Mexican gov-
ernment mounted protests
against his scheduled execu-
tion and challenged the United
States criminal justice system
on the grounds that the death
penalty violates human rights.
Capital punishment, regarded
as inhumane, was eliminated
from the Mexican federal penal
code in 1929. The Mexican offi-
cials also intimated that the
execution of Montoya could
have a negative impact on their
nation’s economic trade agree-

Tra

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hardly

$50 a dc

life.’
Sam ‘


DISABLED INMATE
FAGES EXECUTION

Governor of Virginia Denies _
Clemency After an Inquiry.

‘
a

*

“1 SpecialtoThe New York Tintes b's oy ht
RICHMOND, Jan.9— The Governor ©
of Virginia today ordered the execution
of a disabled prisoner who has said he
will need to use a wheelchair to get.to. .
the electric ‘chair, 6s) ) 08 A ee
, _ Lawyers for Charles S. Stamper of |
Richmond, who was convicted of shoot-.
ing three co-workers to death in 1978, ashe
| have said he is “‘extremely disabled” i
-by a spinal-cord injury received in.
prison and his sentence should be fe-
duced to life in prison because he is 10 |
threat to society. BAY: elit
Nearly three months ago, Gow Lin i |,
Douglas Wilder stayed the execution {
| six days before its scheduled date of |
Oct. 28 so Mr. Stamper’s medical con-: i
dition could be investigated by ‘inde-
pendent doctors. Today, the Governor
ordered that Mr. Stamper, 39 years old,
be put to death on Jan. 19. Mr. Wilder’s:
Statement gave no reason for his deci-.
sion but said he had: “examined all .
relevant medical information.” ~ % )' > /\
The National Coalition to Abolish’the rf
Death Penalty, a nonprofit group in
Washington, said Mr. Stamper would.
be the most physically disabled person’
to be executed in the United States:
since the Supreme Court allowed the
-;resumption of the death penalty iT}.
11976. When his ‘case came to light, the

a ee

eet

“This man‘can barely take'a step,”
the group’s program director, Pamela’
J. Rutter, said today. a aaa
Mr. Stamper, who was a cook ata
suburban restaurant, was convicted of .
shooting three co-workers to death ina’
robbery. He said he was disabled in.
1988 after fellow inmates beat him and’.
hit him over the head with an ashtray.
and now could walk 10 to15 feet using a
*| walker, an assessment that the inde-
pendent doctors essentially agree with.

In an extraordinary meeting, 1] rela-.
tives of one of Mr. Stamper’s victims
came to an open house held by the =
Governor to plead that the electrocu-
ition be carried out. gett vlan
' “It doesn’t take but one finger to pull.
iatrigger,’’ said Larry Stargell of North
| Richmond, a son.of a slain waitress,

2 ing

jsroup had criticized “the notion of’ =.
making the death house wheelchair =
accessible.”’ PE NN 5 8

£661 ‘Ol AUVANVI ‘AVGNAS FWNOVLWN SAANLL MXOA MAN AHL

Ot a ene nena neat cement ip ettee ons neem


: Stamper, 39, has said he can shuffle
only a short distance without. the
wheelchair, but he “asked prison
Officials for permission to. walk the
last few feet to the ‘electric chair with
the help of leg braces and’a walker:

- “He maintains a sense of dignity
éven under these circumstances,” said
Stamper’s lawyer, Dennis W. Dohnal.
: “He is a very proud person.”

: Dohnal-said prison officials had not

oe

decided whether to grant Stamper’s
request. 4S 25
Stamper’s lawyers requested astay
of execution» Monday from federal
court after the Virginia Supremé
Court refused to delay the execution.
“This execution will be a spectacle
even those in favor of the death
penalty will not soon forget,” Dohnal

But Wilder told reporters his
medical team found Stamper’s injuries
were not as severe as he had been led

- to believe.

“They’re not suggesting he’s faking

- his injuries,” Wilder said. “They did

not find he’s a paraplegic, and he does
have use of his limbs with assistance.”

Death-penalty’ opponents said .

Stamper is too incapacitated to be a
threat to society.

- “When Charles Stamper: was con-
victed, the jurors decided he would be
a future danger,” said: Julie McCon-
nell, associate director-of the Ameri-
can Civil Liberties Union of Virginia.
_ “Now that he is paralyzed, it’s hard

to argue he could still’be a future |

dagen? Pier
Wilder said he had to consider the

~ crime itself, not just future danger.

Many disabled people and advo-
cates for the handicapped also disa-
greed with the disability argument.

“I don’t think being in a wheelchair
makes you any less responsible for
your actions,” said Gary Melton, a
paraplegic as a result of a car wreck
11 years ago.

Melton shot and killed a man who
tried to rob him at knife point at his
Richmond business last year. Prosecu-
tors said the shooting was justified,

and no charges were filed.

The Arizona Republic A3_

Tuesday, January 19, 1993


(NV)

Tuesday, January 19, 1993

i ~2K—Reno Gazette-Journal -

Disabled man set for execution
~ -RICHMOND, Va. — A disabled inmate- ~
scheduled to be executed tonight plannedto —
abandon his wheelchair and walk to the electric:
chair if his final appeals failed. Death penalty.

‘| opponents said Charles Stamper shouldn’t be .

executed because the prison injury that put him

«| ina wheelchair means he is no longer a danger to
4! society: Many disabled people, however, said a

’ wheelchair is no excuse for a crime. Stamper,

sentenced to death for the 1978 murders ofthree —

restaurant workers during a robbery, suffered a.

| spinal cord injury in a death row brawl five years

ago. Stamper, 39, has said he can shuffle only a
short distance without the wheelchair, but he ,
asked prison officials for permission to walk the
last few feetto the electric chair with the help of
leg-braces arid a walker. His lawyer said prison
officials had not decided whether to grant
Stamper’s request. Stamper’s lawyers requested a
stay of execution Monday from federal court
after the Virginia Supreme Court refused to delay

the execution.

Be ei 7

“The Fresno Bee

- a short-order cook.

“Charles Stamper, 39, was
pronounced dead at 11:15 _
p.m. at. Greensville. Correc-.
tional Center, said Wayne
Brown, the  prison’s.
operations officer. a

“Brown said prison guards
held Stamper by the shoul-
ders and helped him walk to
the electric chair.. Stamper
had requested to use leg brac-
es and a walker so, he could
take the last few steps on his

- Stamper was on death row
longer than any other Virgin-

wheelchair since, his spinal .

fight with other inmates.

ote Oo

the restaurant where he was |

| cord was injured’in a 1988 |‘

ago

ia inmate. He had used a | ©

ee enn eat d

trict Judge James R. Spencer

|-death penalty opponents
‘the execution approached.

| Stamper’s family arrived at

March 1978 as they prepared

Death penalty opponents

said Peggy Bendrick, a wheel-
chair user who lobbies the
General Assembly.on disabili-
-" You do it, you pay the

Earlier Tuesday, US. Diss [

and the 4th U.S. Circuit
Court of Appeals had refused
to halt the execution. The
U.S. Supreme Court denied
the request without comment
at 9:25 p.m. "Pec F
* Defense lawyers had ar-
gued there was insufficient
evidence to prove Stamper
was the triggerman.

.. Victims’ relatives as well as

waited outside the prison as.
Brown «said “members of ||.

the prison Tuesday morning
to visit the inmate. = =
~ Stamper was a cook at a
suburban Richmond restau-
rant where three co-workers
were robbéd and shot in

to open for business. He was
convicted of the murders.

argued that Stamper should
not be put to death because
his disability makes him no
longer a threat to society.
“ Some advocates for the dis-

abled disagreed.

«If he killed, he killed,”

price.”

———!


LS3M 3HL JO JDIOA FHI

IP Woahs osvuesgy uwS

f Alo

Disabled Inmate
Executed in Virginia

Jarratt, Va. — A disabled death-

row inmate was executed in Vir-
ginia’s electric chair last night for
the slayings of three workers: at

‘the restaurant where he was a

short-order cook.

Charles Stamper, 39, was pro-
nounced dead at 11:15 p.m. at
Greensville’ Correctional Center,
said Wayne Brown, the ‘prison’ $ Op-
erations officer.

Brown said prison guards held
Stamper by the shoulders and
helped him walk to the electric
chair. Stamper had requested to
use leg braces and a walker so he

could take the last few steps on his |.

own.

- Stamper was on death row ‘nb
ger than any other Virginia in-
mate. He had used a wheelchair

since his spinal cord was injured in _

a 1988 fight with other inmates.

Earlier yesterday, U.S. District
Judge James Spencer and the U.S.
Court of Appeals had refused to
halt the execution. The U.S. Su
preme Court denied the request
without comment last night.

, re

WEDNESDAY, JANUARY 20, 1993 _

> EXECUTION * ‘SET: Virginia federal judges rejected
last-day appeals of Charles Stamper, 39, condemned for kill-
ing three people in a 1978 Richmond restaurant robbery.
Stamper, who has a spinal injury from a jail fight, would be
the first wheelchair-bound prisoner executed in decades.

> FAMILY KILLER: Mark Bender Jr., 50, was sen-
tenced in Seattle to 80 years in prison for the 1980 hatchet
killing of his wife and two sons, age 15 and 8. Motive: They
were leaving himi, The bodies were found in a rented locker
last year after his new wife had stopped paying the rent.

USA TODAY : WEDNESDAY, JANUARY 20,:1993° °
a
ee isstsstitsd

vow eay me Se

Walk to electric chair

RICHMOND, Va. — A disa-
bled inmate scheduled to be exe-
cuted tonight planned to aban-
don his wheelchair and walk to

- the electric chair if his final ap-

: peals failed.

‘ Death-penalty opponents said

- Charles Stamper shouldn’t be ex-

--ecuted because the prison injury
-: that put him in a wheelchair
-- means he is no longer a danger
-* to society. Many disabled people,
:- however, said a wheelchair is no —
“excuse foracrime. 3

‘= .Stamper’s lawyers requested a.

--stay of execution Monday from —

_ federal court after the Virginia

_ Supreme Court refused to fcr

, the execution.

annouv

99g OUSel4 OUL e@ E661 ‘6} Avenuer ‘Aepsen, OY

NOILVN 3HL

|

Bee news services “~ -

|
|


(Box Mb, Exec. Papers of Gv. pie
) Correct name was Stgpher. SUrMame of his owner was Kedford:

oe as "y by crime was comsttfed
\ Surname of victin's owner was Selden ‘ peti ap io
( in damuary [80 by rneans of a blungeors with a tir

\

Slave Stephen ©

CHenryy Slave of Lucey Bedford) convicted Henrico County,
Vaey on Feb, 2, 1801, for the murder of Aaron, a slave

owned by Miles 4 ent) of Henrico County. Valued at 100
pounds and the sheriff attested that the execution took

place on March 6, 1801,

Four
Archives of Virginia, Box XZ, Item 153, 1801 Envelope,
Auditors Records,

A slave was executed, Norfolk Cosy Vaey 1-30-1756, for
an unspecified felony, Ltr. dtd. 3-27-1985 from Philip
Schwartz. His source: Norfolk County Court Minutes,
1755-1757; at date, and March 1, 1756, at date. ecT:

0
Ltr, dtd. 4-23-1985 from Schwartz gives name as Stephan,

Slave of John Porter's
Valuathin 50.

Ural record th Order Look Entry dated I-lb-56.
Me belonged 7o the estate. of Sohn lorter.


STOCKTON, Dennis W., white, LI VAS (Patrick) September 27, 1995

On ed

Wrmes— Dj's popes,

Richy peda

Execution rs
ot Stockton
carried out

Convicted killer died by lethal injection

BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER

JARRATT — Dennis W. Stockton,
54, who said he regretted passing up
a chance to flee during Virginia’s
1984 death row escape, was execut-
ed by lethal injection last night for a
1978 contract murder.

He was pronounced dead at 9:09
p.m., and there were no complica-
tions, said a spokesman for the
Greensville Correctional Center.

According to media witnesses,
Stockton’s last statement was a brief
line from Isaiah 26:3 that began:
“Thou will keep him in perfect peace

A prison spokesman said Stockton
spent his last hours with lawyers,
friends and the clergy. Stockton said
Tuesday that he did not want his
family members visiting him at the
Greensville prison.

He also said he admired the work
done by his lawyers. “I wouldn’t
trade them for the Dream Team” of
criminal defense stars representing
O.J. Simpson.

Stockton was convicted of shoot-.-

ing Kenneth Arnder, 18, in the back
of the head and cutting his hands off

7-28-95

in July 1978. Arnder was killed in
Patrick County and his body was
dumped near Mount Airy, N.C.
Last night, four members of the
Richmond Peace Education Center
gathered in a field outside the prison
to oppose the execution. Wearing
: hats and sweat-
ers against the
chilly air, they
huddled together,
lit candles and
spoke among
themselves.
Thomas Cleary
i said that if Stock-
7 ton is dangerous
he should be kept
in prison for life
rather than killed.
“T’m here to accompany the man
who is dying,” he said. “I think it is
horrible to die alone. This is especial-
ly horrible because it is so cold-
blooded and planned.”’

Stockton was the 27th inmate exe-
cuted in Virginia since the reimposi-
tion of the death penalty in 1976,‘a
toll that ranks third in the country

PLEASE SEE STOCKTON, PAGE B3 >


COMMONWEALTH OF VIRGINIA

DEPARTMENT OF HEALTH - DIVISION OF VITAL RECORDS

- : COMMONWEALTH OF VIRGINIA

Re. ae aE ee STATE BOARD OF HEALTH

‘CERTIFICATE OF DEATH Bureau of Vital Statistics :
File No. 7 Smt evnsseees

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MEDICAL CERTIFICATE OF DEATH 5

‘| 16 DATE OF DEATH

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.(Day) (Year)

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BUstSL.af6i5., te. Septemberl 7015,

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*8tate the DisHask CAUSING DEATH, or, in Ceaths from VIOLENT CAUSES, state
(1) Means oF INJURY; and (2) whether ACCIDENTAL, SUICIDAL or HOMICIDAL,

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This is to certify that this is a true and correct reproduction or abstract of the official record filed with the
Virginia Department of Health, Richmond, Virginia.

ee Suull 3 Raabe p

Russell E. Booker, Jr., State Registrar

SON

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AUb 199!

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Any reproduction of this 9 195 is prohibited by statute. Do not accept unless on security paper with seal of Vital
Statistics clearly embossed. Section 32.1-272, Code of Virginia, as amended.

.
md 444) Wihicctye
PT LANEY WR


Virginia executes man

JARRATT, Va. — A man con-
victed of a murder-for-hire plot
was executed Wednesday night
by injection, becoming the 300th
person put to death in the Unit-
ed States since capital punish-
ment was reinstated.

Dennis W. Stockton, 54, was
convicted of killing an 18-year-

old for $1,
was a drug-related slaying.

500 in what police said

(a

AiQ Thursday, September 28, 1995 ° The Fresno Bee


Death penalty opponents hold a worship service outside the Greensville Correctional Center.

Y -2.%- 44

By Peter Baker
Washington Post Staff Writer

Ps oe

ASSOCIATED PRESS

JARRATT, Va., April 27—Serial killer
Timothy Wilson Spencer, the first person in
the country convicted of a capital crime
through DNA testing, died in the state elec-
tric chair late tonight.

The man known as the Southside Stran-
gler was pronounced dead at 11:13 p.m.,
said Wayne Brown, operations officer at
Greensville Correctional Center here in
southern Virginia.

His electrocution came after a flurry of
_ last-minute legal efforts that went as high as
' the U.S. Supreme Court, which rejected a

request for a stay at 10:45 p.m. Spencer’s

attorneys had frantically pleaded for retest-
ing of the DNA genetic material that led to
his convictions for raping and murdering four

women during a 10-week rampage in 1987.

Killer Ist to Die Based on DNA Testing

EXECUTE, From B1

“There is no way to explain what
Timothy Spencer did,” said Episco-
pal Bishop Frank H. Vest Jr., who
led the death-penalty protesters. “I
just think vengeance is God's.”

But for friends and relatives of
Spencer’s victims, tonight’s execu-
tion was simply long-delayed justice.

Josephine Dudley, 68, a Lynchburg
woman’ who lost her only daughter,
Debbie Dudley Davis, said she hoped
Spencer’s death would finally put an
end to her nightmares. “I just have a
continuous dream of Debbie in her
apartment and what he did to her,”
she said. “It’s terrible. I hope this will
be some relief from that.”

Erin Broadbent, whose friend, S¢-
san M. Tucker, was raped and killed
in her Arlington town house, said

‘she was “semi-numb” today.

“I sort of had put it out of my mind

‘and then it came up in the paper

when the date was set and it was
sort of a jolt back to reality,” she
said. “It’s a chapter that I would like
to have closed and over with.”

The case was watched closely na-
tionwide because Spencer was the
first defendant ever sentenced to
death on the basis of DNA genetic
“fingerprinting.” According to state
specialists, the chances were less
than 1 in 700 million that someone
other than Spencer had left the se-
men at the murder scenes.

His conviction was such a legal
milestone that it prompted Virginia
to open the first state DNA laborato-
rv in the country and inspired mys-

tery writer Patricia D. Cornwell’s
popular 1990 novel “Postmortem.”

“It was a landmark case because
prior to that, none of us really knew
much about DNA and we didn’t know
whether ... a jury would be able to
understand that sufficiently to convict
someone of something as serious as
capital murder,” said U.S. Attorney
Helen F; Fahey, who won the first
conviction of Spencer when she was
Arlington’s chief prosecutor,

The bodies of his four victims
were discovered in quick, chilling
succession, the first three not far
from the halfway house on Rich-
mond’s south side where he’d been
living after his release from prison
on burglary charges.

Davis, 35, an account manager, was
found Sept. 19; Susan Elizabeth Hel-
lams, 32, a neurosurgeon, Oct. 3; and
Diane Cho, 15, a high school fresh-
man, Nov. 22. Tucker, 44, a federal
employee, was found Dec. 1, shortly
after Spencer visited his mother’s
nearby home for Thanksgiving.

All four were discovered nude or
partly clothed in their bedrooms,
their hands bound and rope, belts or
socks tied around their necks, They
apparently were awakened when
Spencer entered their homes
through windows, then raped, sod-
omized and choked them to death.

Spencer later was implicated in
the 1984. slaying of lawyer Carolyn
Jean Hamm, 32, in Arlington, and a
dozen other crimes, including eight
rapes. He was never tried in those
cases because he already had been
sentenced to death.

However, the conclusion that he
killed Hamm led to the release of a
Manassas man who had spent five
years in prison for that slaying.

Since the day Spencer flipped his
middle finger during a 1988 sentenc-
ing hearing, he had defiantly main-
tained his innocence. No witnesses
placed him at the murder scenes. The
cases against him were built almost
entirely on the match of deoxyribonu-
cleic acid, or DNA, which determines
a person’s genetic makeup and is
unique except in identical twins.

In a final effort this month to save
Spencer’s life, his attorneys asked
that state genetics evidence be re-
leased to their independent special-
ists, who questioned whether there
was a solid match. But an assistant at-
torney general said seven scientists
who examined the DNA results con-
sidered it conclusive, including a No-
bel Prize winner.

Spencer became the 24th man exe-
cuted in Virginia since the Supreme
Court restored the death penalty in
1976, the 12th since 1992. He also
was one of the last to face the state’s
electric chair; the General Assembly
has agreed to allow inmates to die by
lethal injection beginning Jan. 1.

Tonight's electrocution was unusual
because the prison system’s head phy-
sician refused to be present to pro-
nounce Spencer dead. Balvir L. Kapil,
who has witnessed a dozen executions,
became the first doctor in the country
to back out of an execution since the
American Medical Association ruled
recently that such participation consti-
tutes a breach of medical ethics.

In Grim Distinction, Va. Killer
Is Ist to Die Based on DNA Test

In his final moments, Spencer, 32, be-
trayed no hint of fear, walking into the death
chamber with what witnesses described as
almost a swagger. Asked if he had a final
statement, Spencer initially answered “yeah,
I think,” but then said nothing, according to
witnesses, whereupon officials covered his
face with a leather mask.

A crowd of about 100 gathered outside the .
prison, about half of them death-penalty oppo-
nents conducting a candlelight prayer vigil.
The rest were local high school students who
boisterously cheered for Spencer's death.

As death-penalty opponents sang “Amaz- .
ing Grace,” some of the students yelled, “Kil
the bitch.”

Such a spectacle has been rare since the
state moved the death chamber to this re-
mote location, about 55 miles south of Rich-
mond, in 1991.

See EXECUTE, B5, Col. 1

ih ba VEGI:
Killer convicted on DN

Associated Press 4. 28-9¥

JARRATT, Va. — Serial killer
Timothy W. Spencer, the first
person convicted of murder on the
basis of DNA evidence, was exe-
cuted late Wednesday after a last
flurry of appeals failed.

Spencer, known as the “South-
side Strangler,” consistently
maintained his innocence. He
had no last words before being
put to death in the electric chair
for the first of four rape-murders
he was convicted of committing.

He was pronounced dead at
11:13 p.m. ©

' Spencer arranged for his imme- ©

diate family to visit him before
the execution, said Wayne
Brown, a spokesman for the pris-
on in Jarratt.

In the afternoon, the 4th U.S.
Circuit Court of Appeals denied

his lawyers’ request for a stay so
new DNA tests could be run on
Spencer.

At 10:45 p.m., the Supreme
Court turned down his lawyers’
request to halt the execution. A
court spokesman said Justice
Harry Blackmun cast the lone

“CNY Review- TRVNL

A executed ,743—

His lawyers did not seek clem-
ency from Gov. George Allen.

It was the first scheduled exe-
cution for which a doctor declined
to be present since the American
Medical Association decided
March 23 that doctors’ participa-
tion in executions violates medi-

dissenting vote. cal ethics.

Serial killer 4
loses an appeal a

RICHMOND, Va. — A serial
killer convicted in the first capital
murder case based on DNA
evidence lost a last-ditch appeal _

Killer who was convicted
by DNA tests is executed

Cc ody with the Virginia Supreme
= ihe Fonews fee 4 ft <3 Court on Monday. 3
JARRATT, Va. — Serial ki : j Barring a delay in federa f
: : er Tncele. Seen court of his scheduled Wednes-

cer, the first person convicted of murder on the ba-

sis of DNA evidence, was executed Wedn day night execution, Timothy

W. Spencer will be the first per-

night after a last flurry of ap- —

peals failed. Spencer had Saar: : a- son executed based on the 3
bag 9 rayptaey a 9:45 eo mg inked the $
p-m. , the Supreme Court [ a pencer, du

turned down his lawyers’ re- |} % “Southside Strangler,” was sen- NS

tenced to die in the electric

chair for four 1987 rape-murders
After a judge in Richmond a

rejected his bid for new DNA “>

testing last week, Spencer ap-

quest to halt the execution. A
court spokesman said Justice
Harry Blackmun cast the lone
dissenting vote. Spencerhadno -
last words before being put to
death in the electric chair for N pealed to the state Supreme «
the first of four rape-murders ce. - , Court and filed a petition with
he was convicted of commit- ~P®n°*r ) U.S. District Court in Richmond.Y
ting. He was pronounced dead at 10:13 p.m. CDT. The state court rejected his
Spencer was condemned for the murder of Debbie petition soon after the state filed
Davis, the first of three people from the south sec- its reply, calling the appeal “
tion of Richmond murdered in a series of break-ins frivolous. 28
during three months in 1987. After his arrest, three Spencer is to die for the N
criminal laboratories concluded that semen found murder of Debbie Dudley Davis,
at all the crime scenes came from Spencer. the first of three people slain

7 in a string of break-ins in south-
oD a Pot :

rs Jus 4, RAT x) - Richmond. d 1-26-9Y

finer Cn Sfa testi

n


Driving in to work yesterday |

morning, I heard the. news that

Timothy W. Spencer had “‘died”’ in |

Virginia’s electric chair. It is ironic
that Mr. Spencer ‘‘murdered’’ sev-
eral human beings, but he “‘died”’ in

the electric chair. Mr. Spencer was °

murdered in Virginia’s electric

chair. Let's call a spade a spade.

To those who have enough hubris

to support capital; punishment, at |

least have the courage to call your-
selves what you are: murderers.

Call it justice if you must, but at
least be strong enough in your con-
viction to understand that you are,
like Mr. Spencer, a murderer, and if
you can still live with your convic-
tions and your actions, ask yourself
why you are in any way superior to
Mr. Spencer himself.

MICHELE McCAUSLAND
Arlington

} Fair fox County

. en rene ae ee

Nniaw

ry

; Vir ge

y

, 1994 A3:

THE JOURNAL FRIDAY, APRIL 29


Thursday,

April 28, 1994
: af

Rapist-killer /
‘Ss executed
n electric chair

SOCIATED PRESS

JARRATT, Va. — Serial killer
‘imothy W. Spencer, the first per-
n convicted of murder on the ba-
is of DNA evidence, was executed
- fate yesterday after a last flurry of
appeals failed.
Spencer, known as_ the
Southside Strangler,” consistently
aintained his innocence. He had
o last words before being put to
eath in the electric chair for the
irst of four rape-murders he was
onvicted of committing.
He was pronounced dead at
1:13 p.m.
| -In the afternoon, the 4th U.S.
‘Circuit Court of Appeals denied his
lawyers’ request for a stay so new
4)NA tests could be run on Spencer.
»--At 10:45 p.m., the Supreme
iCourt turned down his lawyers’ re-
aquest to halt the execution. A court
gspokesman said Justice Harry
{Blackmun cast the lone dissenting
‘vote.

It was the first scheduled execu-
t tion for which a doctor declined to
ibe present since the American
{ Medical Association decided March

| 23 that doctors’ participation in ex- |

i

ecutions violates medical ethics.
Dr. Balvir L. Kapil, a prison doctor
who regularly pronounces inmates .
dead, said he was taking a vacation

wf

fan Diego (A) Union Trib.

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pencer loses

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- Spencer’s petition for a

S

Virginia serial killer is put to death

JARRATT, Va. (AP) —- Serial
killer Timothy W. Spencer, the
first person convicted of murder
on the basis of DNA evidence,
was executed late yesterday after
a last flurry of appeals failed.

Spencer, known as __ the
‘Southside Strangler,’’ consis-
tently maintained his innocence.
He had no last words before be-
ing put to death in the electric
chair for the first of. four rape-
murders he was convicted of
committing.

In the afternoon, the 4th U.S.
Circuit Court of Appeals denied
his lawyers’ request for a stay so
new DNA tests couk} be run on

ARIZOne DAI

PAX Thurs 4-28 -7F

for execution stay
SH 26- 94
Timothy W. Spencer yesterday
lost his effort to have the Virginia
‘Supreme Court block his execution
set for tomorrow night. But US. Dis-
trict Judge Robert E. Payne will hear
a similar request this morning.
The Supreme Court. rejected

¢ cution. The one-paragraph ruling

€ contained no legal analysis, but it said

we Bi Richmond Circuit Judge James B.

‘-Y Wilkinson had not erred Thursday in

& rejecting Spencer’s effort to have
‘new DNA tests conducted.

bid

stay of exe-

- -~ 17 oe ot

Spencer.

At 10:45 p.m., the Supreme
Court turned down his lawyers’
request to halt the execution. A
court spokesman said Justice
Harry Blackmun cast the lone
dissenting vote.

Spencer was condemned for
the murder of Debbie Dudley Da-
vis, the first of three people from
the south section of Richmond
murdered in a series of break-ins
during three months in 1987.

After his arrest, three criminal
laboratories concluded that se-
men found at all the crime
scenes came from Spepcer.

Ly: Stare —~ OCSan, _

a


&

<a

Special to The New York Times

JARRATT, Va., April 28 — Timo-
thy W. Spencer died Wednesday night
in Virginia’s electric chair, becoming
the first person executed in the Unit-
ed States for a conviction based on
the DNA-matching technology popu-
larly known as genetic fingerprinting.

Mr. Spencer, 32, known here as
“the Southside Strangler,’”’ was con-
victed of raping and strangling four
women over 11 weeks in 1987. None of
the victims survived to identify him,
no fingerprints were found and no one
confessed. Then, DNA tests linked

semen from the crime scenes with

Mr. Spencer’s blood.

The clock above Mr. Spencer’s

head read 11:13 P.M. when he died at
the Greensville Correctional Center,
60 miles south of Richmond.

Less than a half-hour earlier, the
United States Supreme Court reject-
‘ed a last-minute appeal by Mr. Spen-
cer’s lawyers for a retesting of the
genetic evidence. A court spokesman
said Justice Harry A. Blackmun had
cast the lone dissenting vote.

Mr. Spencer’s execution was ex-
pected to be the first of many such
sentences imposed as a result of DNA
matching.

DNA, the body’s genetic code, can
be used to tie suspects to crimes by

| matching strands of DNA in samples

of their blood to strands found in
semen or blood stains found at the
scene of a crime. Scientists have tes-
tified that.such matches can be made
with a high degree of certainty, esti-
mating the odds of an error at one in
millions. Such evidence, not intro-
duced in United States courts until
1986, is now in wide use and has been
the basis of many capital convictions.

As is the case with most issues
related to the death penalty, genetic
fingerprinting attracts passionate de-
bate.

“It’s peace of mind for prosecu-,
tors,’ said Virginia’s Attorney Gen -

eral, James S. Gilmore 3d, who ar-
gues that DNA matching minimizes
the likelihood that innocent people
will be executed.

‘ But defense lawyers assert that the
technology can be too complex for
juries to understand. And. court-ap-
pointed lawyers often cannot afford
the scientific expertise to challenge
the prosecution scientists.

Mr. Spencer’s victims all were
killed while he was living at a Rich-
mond halfway house after being re-
leased from a state prison where he
had served three years of a 10-year

sentence for burglary. The slayings ,

took place on weekends when Mr.

In First, Man Is Executed Based on DNA Test

Spencer was signed out of the half-
way house.

Mr. Spencer’s case has also drawn
attention because of a protest by the.
chief doctor of the Virginia Depart-
ment of Corrections, who took a vaca-
tion day on Wednesday. :

State law requires a doctor em-
ployed by the Corrections Depart-
ment to be present when a death

‘sentence is carried out. But last

month, the American Medical Associ-
ation said its ethics code prohibited
doctors from participating in execu-
tions. It called on state licensing and
disciplinary boards ‘‘to treat partici-
pation in executions as grounds for
active disciplinary proceedings, in-
cluding license revocation.”

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: Na, | Doctor Balks at Role in Execution

By Carlos Sanchez
Washington Post Staff Writer

~, The state of Virginia will electro-
cute a four-time murderer next
' week, but the prison system’s head
~ physician says he will not be there to
perform his traditional role and pro-
-snounce the prisoner dead.
’ ’ “Balvir L. Kapil has said he is wor-
ried ‘about losing his license to prac-
tice, now that the American Medical

_-ruléd’that any physician who partici-
-pates in an execution has breached
medical ethics. e
,..Last month the AMA, the Ameri-
can College of Physicians, the Amer-
“iean'Nurses Association: and ‘the
American Public Health Association
issued a statement that executions
“contradict the fundamental role of
‘the health care professional as heal-
‘er and comforter.” ete: et
‘will bevon holiday for. three
day$,“.. Kapil said yesterday, adding

+ ~tor-of corrections] not to talk to re-
' porters.” . ee in |

Kapil was scheduled to wae the

April 27 execution of Timothy Spen-

cer;'who was convicted of killing

_ three women in Richmond and ‘one.
"woman in Arlington in 1987, °°

Kapil is the first doctor in the
country to refuse to attend an exe-
cution since the AMA’s March 23

Association and other groups have -

ruling, said’ Leigh Dingerson, direc-
tor of the Washington-based Nation-
al Coalition to Abolish the Death
Penalty.

There have been three executions
nationwide since that time.

As attending physician, Kapil
would have been called on to pro-
nounce the inmate. dead after cor-
rections officials delivered a surge of

electricity, a role that certain health
_ professionals say is unethical. 44

In having to pronounce an inmate
dead, the doctor faces the possibility
of finding the inmate still alive and
then walking away to let the execu-

., tioners finish their job.
-.....Dingerson said that is precisely
_.what happened in August 1991 in
_ Virginia; when a jolt of electricity
' failed to kill Derick Peterson and of-

ficials were forced to deliver a sec-
ond jolt. Kapil, who has witnessed a

dozen. executions, -was. not: present
_ for that one, Dingerson said.

} aic “\v-Kapil has ' told colleagues that he:
-_-that he-had “been told by the direc-

-wants to reflect on his role in execu-
tions and talk to Virginia’s Board of
Medicine, which licenses doctors,
ources Said. Ys a
Ben Hawkins, a spokesman for the
"corrections department, confirmed
. that Kapil will be unavailable April
~ 27. “It won’t be the first time that
Dr. Kapil has not participated,” he
said. a
Hawkins added that the depart-

ment has not linked Kapil’s absence
and the AMA pronouncement.

A spokesman with Virginia’s Board
of Medicine said there are no plans to
act against any physician until an offi-
cial complaint has been filed.

Maryland, which is preparing to
carry out its first execution in 30

years during the week of May 16, .

has no requirement that a doctor be

present, but a spokesman for the

Department of Public Safety and
Correctional Services said one will
be there to pronounce death.

Israel Weiner, the chairman of
Maryland’s medical licensing authori-
ty, said that although an ethical dilem-
ma could arise at executions, he
doubts that board would take any ac-
tion against a doctor who pronounces
an inmate dead. '

‘I favor capital punishment, but I
would not participate personally,” he

| Machoshn Prof
cf -

a-Y


AS THE FAIRFAX JOURNAL MONDAY, APRIL 18, 1994

Attorneys want DI

3 Curie pe ate eee oe cL Mapas tie ted from bla a DNA and the DNA extracted from the semen
RICHMOND (AP) — Lawyers for death director of the Virginia Capital Repicrrn I hey ats he ea gi ay akon . criminal’. stains in any of the cases involving Mr.

row inmate Timothy W. Spencer, who is _ tion Resource Center. : eee ae ;men and ovier DIONE * = see
scheduled to be executed next week, willask = - Today, Richmond Circuit Judge James B. Sen ed racial EY RE Onis wants new tests performed that
a judge today to order new tests of DNA wiryinson will consider Spencer's request, *.’ According to'scientists, no two people — “".-e somewhat different from the type used
evidence... ef Be tits that semen stains found at the scenes of two. except identical twins — are believed to Garlier and that can be completed in two or
| Spencer was convicted and given four of the slayings be tested again, this time by be have the same DNA: 4, ee three: “i re. STP Aes eke
| death sentences for a series of rape-murders — an independent laboratory. © °°." Jay aut arc «« Spencer's lawyers have given Wilkinson ~ Donald C. Harrison, a spokesman for At-

— in Richmond and two oth- Te ey OE St : : .
| a ptokeg hp Seac de gency coun- _Specer was the first defendant sroseriece xpert at Harvard Medical School who raises « “ that’ “‘experts have reconfirmed [the Spen-
ties. He is scheduled to bé executed April 27. _ with DNA evidence. apse se fore é portl  DNA*"cei n
‘ the genetic testing . Mique has been used py ow een | vie aye .! £35 7thatno retesting is warranted.”
| Spencer . lawyers Ste es four 1988 “agencies ar ound the world, but Spencer ap- } n'a" é einstein ‘said Bing SAE
: Cn autre Vesa was flawed because! parently also Mcerprash octet ota)" : ; luded*:
| DNA procedures were still being Gereiened executed on the basis of, Fr 2 7 oe i i
“Since. 1988, DNA profiling has evolved. t deoxyribonucleic: acid, 1S aicom: 2; the Origen ee
and improved substantially;'* said Barry.’ plex molecule found in the nuclei.of. humans, ciént;foun for,a saerern gear that bed
Weinstein, one of Spencer's lawyers and the” cells. It carries a person's genetic informa th 6 was: a match between Mr, OPERCETEr

: ee 5 ee iit

ae ¥ oe ¥: SrA ss

“Nobel laureate in genetics,” lawyers for the ae
, Statearguedinabrief.); 6. pee
 '. .Harrison‘said the state also opposes fur- —
ther testing because the quicker type of DNA ,
| test propdésed by Weinstein is not as defini-.. _
“"'tive'as the one originally used... 9) wephes
3 :iaTHe state. also ‘disclosed that before his;
_ first Richmond trial, Spencer's lawyers.se-;
| “cretly sent a sample of Spencer's blood to Li-;
:* fecodes, the laboratory police had used, but -
| under:a false name and under the guise.of.a~

© paternity case. \) «1..

| “Without knowing it was retesting Spe

_ cer’s blood; Lifecodes did so and ‘reported ;
‘results which matched those that it had earli-,

er reported’ acouceune Spencer and. the

sperm samples at three of the’crime scenes,

the state said. Se ee ae

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VY SPENCER FROM PAGE B1

sponded that he and several other
were aware of the problems

' jdentified by Spencer’s

They nevertheless concluded that
Spencer’s blood matched the semen
stains left at the murder scenes,
McElfresh said. . cat

Jeffrey D. Ban, who oversees Vir-
ginia’s DNA data bank, testified that
he had redone the tests recently
from photographs of the films. He
said he ad no doubts about the accu-
racy of the trial testimony.

Ban also testified that the type of
DNA test requested by Spencer's at-
torney, Barry A. Weinstein, is less
reliable and provides less detail and
than the type of tests that were done
for Spencer’s trials. °

Wilkinson said he was not im-
pressed with the testimony of Spen-
cer’s experts and concluded that he
had no reason to question the validity
of the trial testimony.

In the papers filed late yesterday,
Weinstein contended that Wilkinson
had no choice but to allow his expert
to examine the evidence and conduct
the tests on it, once the judge was
assured that the integrity of the evi-
dence would be maintained.

Wilkinson erred in requiring Spen-
cer to present any evidence challeng-
ing the accuracy of the original DNA
testing as a condition for permitting
the new test, Weinstein argued.

Even if the judge was correct in
requiring Spencer to present evi-

dence that placed the original tests in
doubt, Spencer provided such testi-
mony, Weinstein contended.

He said Spencer “is not asserting
these arguments for purposes of de-

lay, but because he is genuinely enti-_

tled to relief.”
If the Supreme Court denies the

appeal, Weinstein said, Spencer “in-
tends to pursue all other legal reme-
dies available” to him.

He asked the court to expedite its
consideration “to permit the possibil-
ity that other courts will consider the
issues raised or require a stay of
oom so that they can consider

em. :

Episcopal Diocese plans
vigil before execution |

The Peace and Justice Commis-
sion of the Episcopal Diocese of
Southern Virginia has called on
members of the diocese to join in a
Wednesday night vigil for Timothy
W. Spencer, who is scheduled to die
in Virginia’s electric chair.

Pishop Frank H. Vest Jr., spiritual

‘ leader of the 30,000-member dio-

cese, will participate in the vigil and
Eucharist at the Greensville Correc-
tional Center in Jarratt.

Spencer is scheduled to be execut-
ed at 11 p.m. Wednesday for the
murder, rape and sodomy of Debbie
Dudley Davis in her South Richmond
apartment in September 1987.

He has received three other death
sentences in the rapes and slayings
of Dr. Susan Elizabeth Hellams, 32,
in Richmond; Diane Cho, a 15-year-
old Manchester High School fresh-
man, in Chesterfield County; and Su-

TTS

~—Seaas

—-—

san M. Tucker, a federal employee,
in Arlington.

The Rev. Peg Buelow, rector of St.
Mark’s Episcopal Church in Hamp-
ton and coordinator for the vigil, can
be reached for additional information
on the protest and transportation at
826-3515.

The Episcopal diocese, which ex-
tends from the Eastern Shore to
South Boston including the South
Richmond area where Davis was
killed, adopted a stance in 1990 that
unconditionally opposes capital pun-
ishment and calls on diocesan Epis-
copalians “to actively work for the
abolition of the death penalty in the
Commonwealth of Virginia.”

Two years later, the diocese called
on members to “‘use‘all resources” to
eliminate capital punishment: and to_
follow the commission’s lead “in
working against the death penalty.

—_—-


epeseeRH ASA dae RENAL UN A ATES ER RAIA RTI ELI Oa

A Clipping From
Virginia Press Services

News Clipping Bureau
P.O. Box C-32015 .
Richmond, VA 23261-2015 ©

Richmond Times-Dispatch
Richmond, VA
cc apn M-Sat a.m.

140,250, 3/93! |
Date_/ Ly AP ke

| \\ pres ones:
Ge ogee as

-Merhige rej jects

‘Spencer cl nollie

Ineffective counsel i in 89 Hellams’ -
slaying trial was one point he raised: :

BY RANDOLPH GOODE —
TIMES-DISPATCH STAFF WRITER

A federal judge yesterday rejected
Timothy W. Spencer’s challenge of
his January 1989 capital murder con-
viction in the rape and strangulation
of Dr. Susan Elizabeth Hellams.

The man identified as Richmond's
“South Side strangler,” ‘Spencer
raised several points in his federal
court challenge, including ineffective
trial counsel.

For example, Spencer asserted
that his trial counsel was deficient for
not securing a court-appointed DNA
expert.

The only conclusive evidence link-

ing Spencer to the crime was a match

between the DNA pattern in his
blood and the DNA pattern in semen
found on Dr. Hellams’ slip.
Deoxyribonucleic acid is the basic
genetic material found in the cells of
body tissues, blood and other fluids.
Everybody, with the exception of
identical twins, has a DNA pattern as
unique as a fingerprint, according to

experts.

-In dismissing Spencer’ s petition, ©

U.S. District Judge Robert R.. Mer-
hige Jr. said Spencer’s trial counsel
made a “deliberate tactical decision
to forgo an appointed DNA expert.”

For one thing, Merhige noted,
“counsel was unable to find a reputa-
ble expert who was willing to testify
in opposition to the reliability of DNA

|

“et

« ake,

testing. id er i
Spencer was convicted a capital
murder, rape, sodomy and burglary

charges stemming from the death‘of -

Dr. Hellams the night of Oct. 2-3;
1987. A jury then deliberated about
an hour and recommended the death
penalty.

Dr. Hellams, 32, a neurosurgery
resident at the Medical College of
Virginia Hospitals, was bound and
strangled with a belt. Her husband
found her body.

Spencer also has been convicted
and sentenced for three other capital
murders — Susan Tucker, 44, in. her
Arlington town house on Nov. 27;
1987; Debbie Dudley Davis, 35, in
her apartment on Devonshire Road
in South Richmond on the night of
Sept. 18-19, 1987; and Diane Cho, 15,
at her home in Chesterfield County.

Spencer also disputed the method
in which his trial lawyers put on miti-
gating evidence during the cay
phase of his capital trial.

Merhige rejected that argument. ‘

tailing into a woman’s house, raping
and sodomizing her, strangling her'to
death with her own belt, and that. this
was his third such victim, it is dotibt-
ful whether any amount of mitigating
evidencé could have changed the out-
come of the penalty state,” the Jugs

wrote.

PHIBRAAAE

Pencer st
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Timo-
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on N: Late appeals for serial rap
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EXECUT

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, Of Chesterfielq County, |


Conviction based on -“} |
DNA evidence upheld® = G?73 £9 |

1 A, 4

Associated Press _ p |

. G-2P EI
RICHMOND — The nation’s first?
murder conviction based on the usés
of so-called DNA fingerprinting evi-,

National News|

dence was upheld Friday by the?’ IIS
state Supreme Court. “s an f CTY
nae tb brief: \U
In a pair of unanimous rulings, thé» yg Tyre

court concluded that DNA tests thats
linked Timothy: Wilson Spencer to> :

the rape-slayings of two women»
_ were scientifically reliable. he

Hr ; CG ¢ : . Ma

Since DNA patterns are considre | ourt upholds e
ered unique, the likelihood of match N; ca d

ing patterns from different people ise | p é A. evi ence oe

reckoned at 1 in many millions. ed
‘Govanedt—*,  ipmurder case:
ae. | __- ete ations frst murder conv

tion based on. the use 0} .
DNA ‘fingerprinting evidence ‘was -
Upheld Friday in:Richmond' by the’ |
VirginiaSupreme Court. In a. pair...
efi:unanimous rulings, the court:

‘the use of so-called .

concluded that DNA ;tests that :
linked Timothy’ Wilson; Spencer’ to .

the.:ra ‘Slayings: of two women.
were scientifically . reliable. DNA;.
gic’ genetic material’ in human’ |:
cells. Scientists believe that every-
one, except for identical twins, has |
a unique DNA pattern! Spencer, -26, -
a former resident of a Richmond
jalfway house, was, convicted of
rpurder and ‘sentenced to death in
separate trials last; year ;for the
Slayings of Susan Tucker, 44, of
Arlington and Debbie Davis, 35, of
Richmond. The women were bound
dnd strangled by an assailant who
roke into their homes. ‘Evidence
was offered that semen and blood
gamples from Spencer had match-
ing DNA patterns. Earlier this
year, Spencer was convicted and
Sentenced to death in two other
cases, the rapes and murders of
Dr. Susan Hellams, 32, of ‘Rich-
mond and Diane Cho, 15, of Ches-
terfield County.


¥

SPENCER, Timothy W., bl, ex VA (Richmond City) April 27, 1994

BS Saturpay, SEPTEMBER 23,1989

Va. Killer’s
Conviction

Is Upheld.

State Supreme Court
Backs DNA Evidence

RICHMOND, Sept. 22—The
Virginia Supreme Court, in the na-
tion’s first appeal of a murder trial
based on DNA evidence, today up-
held the capital conviction and

Associated Press.

AROUND TI

death sentence of Timothy Wilson
Spencer. ae
In unanimous rulings, the court | Judge Sets Execution Date ~
said DNA test results submitted as _ | = te
evidence at two of Spencer’s trials, For Virginia Murderer of 4 ws
including one in Arlington, were : : +] 27 yesterday as the Uo
“ aah A Richmond judge set Apr y y
sete sf a d a ee nee 9 execution date for Timothy W. Spencer, the ai (vy
mie ah and were properly con- side Strangler” who bound, raped and murdere i
, gene al four women. |
paver ‘ sir eng are : The U.S. Supreme Court on Feb. 28 pom Xx
tailing tite $487 donee GR ince without comment Spencer’s appeal in the slaying 0

linked to the 1987 rapes and mur-
ders of Susan Tucker in Arlington
County and Debbie Dudley Davis in
Richmond through so-called DNA
fingerprinting.

DNA is the basic genetic material
found in human cells. Everyone,
except for identical twins, is be-

Debbie D. Davis, 35, in her Richmond apartment in
tember 1987. &

“The slayings occurred during a three-month pe- %

riod while Spencer was living at a south Richmond <

halfway house after being transferred from prison.

One of the four women who were slain by Spencer

was Susan Tucker, 44, who was strangled in her <s

home in Arlington in December 1987. Two of the >

0) ome

mel iain aeate ae 8 other murders were committed in Richmond, ty —
"Geeta was convicted after sam- one in Chesterfield County, in Cie
ples of semen found at the crime Judge James B. Wilkinson 4d 4 Don Harr
scenes were compared to DNA pat- cuit Court set the execution date, sal yr cciie
terns in Spencer’s blood. Experts son, a spokesman for the attorney genera: a

ifi i pene The Davis case was the first of Spencer's four cap
aera eel ee ae eee ital murder convictions to reach the Supreme Court.

“The record is replete with un-
contradicted expert testimony”
about the reliability of DNA finger-
printing, the state court said.

“Indeed, Spencer acknowledges
that the evidence establishes that
the DNA tests are accepted ‘as re-
liable within the scientific commu-
nity’ and that he ‘was unable to find
or produce one qualified expert to

Spencer was sentenced to die after each conviction.

debunk either the theory of DNA 4-%& DY

printing or the statistics generated
therefrom,

Spencer was convicted and sen-
tenced to death in two other mur-
ders; those cases are on appeal to
the state Supreme Court.

>”

the court said.

THE WASHINGTON POST -

Dee
Won NYO y kost


‘the Ellis gun. Elated, Sergeant Perez.

‘yer, Michael Sullivan, tried to prove that ~

ie

from Craig. When officers checked its. owe
serial number, lo and behold it matched ~ 0

found te bea:
Ae those. nih ul
ls pensed i in: his car,.- ‘but to ae used to
phoned the news to the Okeechobee kill Sisco. The two cases were so inter-
team. .» twined, the judge-ruled. that's i
Then, although Craig continued: to dence from the’ first case
deny being in West Palm Beach the admissible but: Sore
night of Sisco’s murder, Sergeant Perez : Ans Okeechobi ¢
found a co-worker of the victim who: (
had met Craig at the gay lounge fre- Pp
quented by Sisco. "The same bartender, Be ke Bice was . ¢
on that night idéntified Craig as being © Craig’s attorney asked tee tates Car-
there on the murder night as well.
It was a circumstantial case on the “> cause his. client was, *tretarded. af
Sisco homicide, Sergeant Perez real- - Carlisle rejected the motion, sentenced
ized. Nonetheless, in both cases, Donnie _Donnie Gene Craig to death in the elec-
Gene Craig was found guilty. His law~' tric chair, then asked j if the defendant.

: . had anything to say, Bee
one of the street people, not Craig, had » Clad in jail blues and | a ‘gray sweat-

committed the murder—that Craig was ~ shirt, ‘Craig stood and ‘said, “I ask for’
in a crack house smoking cocaine when mercy from the’ “court.” ” He is now on

the murder occurred. > Death Row. 6 RY Ue
At one time, the suspect told.a detec- fee ae
tive while being driven to prison, that
the son of his girlfriend, Sheila Wynn, ©
had accompanied him to Sisco’s home . _ Della Stanton, Tom Derby, Sean and
and did the grisly deed. * Dell. Wilson, George. School, Robinson |
Prosecuting Attorney Mary Ann ~ Lee Courtney, Sheila ‘Wynn, Matt. Run-
Duggan was allowed to bring in de- ner and Teddy Baer are not the real .
tails of the Ellis homicide in names of the persons’ so named inthe
Okeechobee since thg property of the. » foregoing story. Fictitious names have
first victim—gun and car—was seen in
West Palm Beach, and shells and cas- © public | interestiin: the’ Hegtitie® of these
ings of the,Raven Automatic gun « parsers 1 SEPA oer

EDITOR’S NOTE:

Nude, Bound

Spencer had been staying with relatives ©. cal ‘capital murder In: the ‘Tucker case.
during the Thanksgiving weekend of |. Notwithstanding. the’ amount, of cir-
1987 while on furlough from the half- cumstantial ‘evidence amassed. by the
way house. ~ State in the ‘brutal case, ‘Prosecutor

While nothing incriminating was ~ Fahey could’ not’ by any stretch: ‘of the
found at the relatives’ house, the'search imagihation‘ ‘regard her: case’ against the
of the halfway house yielded a green © defendant as airtight. For.the‘fact re-

- been.used because there is no reason 1 for

n page 44.

perfect. 1 ( makeup. Its use to determine. ie
index, Ellis and dis-:

nd'study genetic « diseases ‘has been’ac-

“cepted by the scientific community for:

more thana decade. However, it has.

nly, been used in ¢riminal cases.as evi-

ence a few'times, most notably in Flor-

a? Prosecutor: ‘Fahey remembered that
his:

television: program 20/20’ and that
‘adroit use of the DNA’ evidence, had re-

sulted in‘a.conviction, :-°
“Asa result; the commonwealth at-

© lisle not to impose the death penalty be“ torney’s office made an inquiry with ©

Lifecodes. Inc., one of three commercial
- genetic research laboratories i in the U.S.

Lifecodes Inc. agreed to.take the case,
Their work established that the semen .
“stains found on Susan Tucker’s night--

“gown and sleeping bag contained genet-
ic makeup ‘identical to that of blood
samples taken from Timothy Wilson

~@\ epence

Trial commenced in the case of the
Commonwealth of Virginia vs. Timothy
Spencer in Arlington County Circuit
Court on Monday, July 11,1988. Judge
Benjamin, Kendrick presided, The de-
“fendant opted for a jury trial and a panel
of eight women and four t men were em-
paneled to hear the case.

“AS expected, the prosecution’s key
witness turned out to be the representa-
tive of Lifecodes Inc, He explained that
no one but Timothy Spencer could have
left the stains-of body fluids found on
the victim’s nightgown and sleeping
bag. He: pointed out that because of the
“uniqueness of DNA, only one in 135
million*men is likely to have the:same
genetic makeup as Spencer. Suess
“Not much margin of error here, is
there?” remarked one courtroom ob-
server...

Spencer’s defense consisted of an ali-

bi provided ‘by a relative plus his own

assertions on the witness stand that he
‘was an innocent’ man. He replied “No”
firmly each time as Defense Attorney

camouflage jacket found to contain!), mained that'was just'what'the « evidence Carl Womack-asked if he had broken

glass shards matching the glass pane : was—circumstantial. And a jury might

found broken in the Tucker residence. well. prove, loath to convict.a‘man of a
Matters were helped along when the — capital crime on, this basis in view of the

northern Virginia forensic laboratory re- fact that the prosecution’ lacked a single

ported that the hair specimens found at - eyewitness tying SPGUEEE. to the Tucker

the crime scene matched samples taken ~ murder scene. ie

from Timothy Spencer. In: addition, the ~~ -What could be done: to nail the case

semen stains found on the victim’s down tight? wondered the worried pros-

nightgown and sleeping bag were deter- -~ ecutor. ' The. dedicated public servant de- «

into Tucker’s home, rape and mur-
dered her. »

 Spencer-admitted to his prior convic-
tions for burglary and ownership of the
green camouflage jacket seized by De-
tective Horgas. But he claimed that he

left-his jacket:in Richmond and did not:

‘wear it when: he came to Arlington over
the Thanksgiving weekend, in 1987,

mined to have come from a person with -- cided to look into the possibility of , when Susan. Tucker was murdered.

type ““O” blood—Spencer’s blood type. - using ‘the latest technique i in f forensic. ’

Based on this newly developed evi-. analysis im her fight to. win, q
dence, Commonwealth’s Attorney v tion—DNA typing Foe
Helen Fahey sought and obtained ‘in-)! °° DNA‘or ‘deoxyribonucleic acid, i is a)
dictments by the Arlington County ©
grand} jury, charging Spenrer wits rape

30

cell. and

52 Inside Detective

'

‘After five days of testimony, the case
went to the jury ‘for their life-or-death

- decision. It took.them only. five hours to’

“bring in their verdict—guilty as charged

- spiral-shaped molecole. re din every” of es ‘murder,:-rape. and: ‘burglary.
sg a oder: Virginia law, the bial al jury has

Sie RAS Shir ate! ¥

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and had been wearing a mask.

Remembering the knife found at the
site of the Tucker murder, Detective
Horgas decided to include the knife and
mask in the profile that he was drawing
up as that of the Tucker perpetrator for
submission to the FBI’s Violent Crimi-
nal Apprehensten Program.

The next several weeks found Horgas
spending a great deal of time on the
telephone as he canvassed police agen-
cies in the area for crimes with sim-
ilarities to the Tucker case. He was
confident that he had hit paydirt when a
Richmond, Virginia, counterpart said
that a rape-murder had been committed
there in September 1987. It bore several
of the earmarks of the Tucker case and
remained unsolved.

Joe Horgas hung up the telephone and
studied the wallboard listing the dates of
the crimes which he figured to have
been committed by the same criminal
responsible for the Tucker crime. He
noted the time gap that existed between
the last Arlington burglary-rape (Janu-
ary 1984) and the next similar type of
crime in Richmond (September 1987).
Why the time gap? wondered Joe
Horgas.

As a veteran criminal investigator
well-versed in the ways of serial rapists,
he knew well that they are not likely to
voluntarily renounce their predatory
ways. No indeed. Serial rapists keep at
it until they are caught or otherwise
killed.

Could it be, Joe Horgas asked him-
self, that his man’s favorite street activ-
ity, raping women, had been brought to
a halt by reason of being incarcerated?

Detective Horgas brought his theory

to the attention of his commanding offi- .

cer. He authorized the sleuth’s travel to
the Virginia Department of Corrections
headquarters in Richmond for the pur-
pose of checking out the hunch.
Focusing his attention on the records
of convicts who were incarcerated in the
Virginia prison system during the three-

and-one-half years in question, the dog-

gedly persistent Horgas pored over
seemingly endless piles of computer
printouts. Finally, on the fifth day of his
labors, Joe Horgas came across some-
thing that made it all worth it.

According to Department of Correc- |

tions records, Timothy Wilson Spencer,
a 25-year-old black male, had come into
the Virginia prison system in January
1984, as a result of an Alexandria bur-
glary conviction. This was followed
shortly thereafter by a complete ces-
sation of the unknown burglar-rapist’s
depredations in adjacent Arlington.

44 Inside Detective

As a police officer knowledgeable in

the rules of evidence, Joe Horgas re-

alized this was strictly circumstantial
evidence, hardly enough to serve as the
basis of serious accusations of criminal
acts. Still, it was reason enough to focus
on the man as a suspect until further in-
vestigation eliminated him as one,
Further checking disclosed that the
young man was a veteran burglar, hav-
ing been convicted of the crime for a to-
tal of six different times. And when
Detective Horgas learned that Timothy
Spencer had been paroled to a halfway

Detective Joe Horgas had a hunch that Tucker’s killer might have been be-
‘hind bars for his involvement ” similar-type burglary-rape cases.

house in Richmond just two weeks be-
fore the unsolved burglary-rape-murder
took place in September 1987, he knew
that the trail was blazing hot.
Nevertheless, in the réalization that it
would be premature to accuse anyone of
rape and murder without substantial evi-
dence, Horgas concluded that he had
probable cause to arrest Spencer at least
on a burglary charge in order to get him

back to Arlington to be kept on ice,

pending. completion of the rape and

“murder aspects of the investigation.

With the cooperation. of the Rich-
mond police, the suspect-was taken into
custody at the halfway house on January
29, 1988, and bundled into Detective

Horgas’ car for the 106-mile trip back to
Arlington. During the two-hour trip,
Horgas had a conversation with the
young suspect that convinced him all
the more that he was‘on the right track.
Advised by Horgas that the police
would need a sample of his blood,
Spencer asked whether it had anything
to do with a rape.
““Why do you say rape?”’ the detec-
tive asked. ‘‘It could be for burglary.”
« Spencer replied: “No, if you want my
blood, it must have something to do
with rape.”

‘Spencer asked where the burglary
had occurred and Horgas said in the
Fairlington section of Arlington. At this
point, Spencer asked: “Does this have
anything to do with the murder?”

Strange the man should ask, thought
Joe Horgas, when the subject of murder
had not been mentioned.

Spencer was remanded to the Ar-
lington County Jail on extremely high
bail to await trial on the burglary
charge.

Meanwhile, the investigation contin-
ued. Search warrants were executed for
both the halfway house in Richmond
and the home in Arlington where

(Continued on page 52)

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© G.P. 1985


—_—

| ere es.)

ARLINGTON, VA.
SEPTEMBER 7, 1988

Dorothy Thomas was a concerned
woman. Her neighbor in the Fairlington
section of Arlington, Susan Tucker, had
not shown up as scheduled for their
standing Tuesday morning date to go
grocery shopping. Forty-four-year-old
Susan Tucker was usually good about
keeping her appointments.

When repeated telephone calls to her
friend got no response that December
1st morning, Dorothy Thomas decided
to investigate. The two women had
agreed to exchange keys to each other’s
residence for use in just this kind of sit-
uation. As women living alone in this
large metropolitan area with a popula-
tion of 150,000, each relied on the other
for assistance in case of an emergency.

Letting herself in the front door of the
two-story, brick duplex, Dorothy
Thomas called out to her friend:
‘Susan, Susan, it’s me. Remember we
were going to the supermarket today.”
But there was no response.

Her apprehension mounting, the now
truly worried woman undertook a fran-
tic search of the house for her friend.
And when Dorothy Thomas reached the
upstairs front bedroom, she was con-
fronted with a sight that sent her out the
front door calling for help.

Help was soon forthcoming as Ar-
lington County Police Department
(ACPD) uniformed officers responded

to a DOA call from the Fairlington sec-
tion of Arlington on the southeast edge
of Washington, D.C. :

The first officer on the scene found
Susan Tucker nude on a bed with her
wrists bound behind her with a rope that
was also wrapped around her neck. Im-
mediately, the officer ordered the crime
scene secured and using his hand-held
radio, he called for the assistance of ho-
micide investigators.

Two-story duplex where 44-year-old Susan Tucker’s hogtied body was found.

Responding to the call for assistance
were ACPD Major Crimes Squad De-
tectives Joe Horgas, Michael Kyle and
Buck Crouch. Technical backup was
provided by Officer Richard M.
Schoembs, who examined the house in
an. effort to come up with fingerprints
and any physical evidence which could
help answer the question: what had hap-
pened to Sysan Tucker?

While Detectives Horgas and Kyle

To win a conviction, gutsy Prosecutor Helen Fahey
used DNA typing, the latest technique in
forensic analysis, to win a conviction
against a serial rapist who left Susan

NUDE, BOUND
& STRANGLED

INSIDE DETECTIVE, February, 1989.

42 Inside Detective

undertook the stanc
ing the grim scene
tective Crouch or
house canvass for
could be helpful tc
going to be a very
tion.
It was apparent
the fact that the t
state of decompo:
had been dead fo!
before the discov
cause of death app
tion. The fact tha
ransacked probab!
truder’s search fc
believe burglary
contents of the \
strewn over the fi
By checking th:
gators found that
of entry into the
residence had bee:
dow leading to th
window had bee:
basement area lo:
cleaned up in ane
dence. This led s
the perpetrator th
was a Criminal w
police methods «
Close scrutin)
glass by Detectiy
tim’s nightgown
vealed the presen
Accordingly, this
aged and tagged
crime laboratory
enced detectives,
was likely to leav
no matter how sn
crime. It was the
Night had fall
tive Horgas was :
colleagues had «
way of crime sci
dered the crime s
rized the releas
medical examine
With this, the
Major Crimes sq
paperwork con
work today. Wit
but necessary du
tim’s next-of-ki
This done, the |:
tour of duty anc
much needed res
All except Joe
fact that Detecti
hood canvass ha
with “‘negative
Schoembs’ effo:
fingerprints had
although his se


2ody was found.

e call for assistance
Crimes Squad De-
. Michael Kyle and
hnical backup was
icer Richard M.
mined the house in
ip with fingerprints
idence which could
stion: what had hap-
ker?
s Horgas and Kyle

undertook the standard work of process-
ing the grim scene in the bedroom, De-
tective Crouch organized a house-to-
house canvass for any witnesses. who
could be’ helpful to what was obviously
going to be a very intensive investiga-
tion.

It was apparent to the sleuths from
the fact that the body was in an early
state of decomposition that the victim
had been dead fora few days at least,
before the discovery of her body. The
cause of death appeared to be strangula-
tion. The fact that the house had :been
ransacked probably as a result of the in-
truder’s search for loot, led sleuths to
believe burglary was the motive. The
contents of the victim’s purse were
strewn over the floor as well.

By checking the area further, investi-
gators found that the intruder’s method
of entry into the unfortunate woman’s
residence had been a rear basement win-
dow leading to the laundry room. The
window had been broken out and the
basement area looked like it had. been
cleaned up in an effort to dispose of evi-
dence. This led sleuths to believe that
the perpetrator they were dealing with
was a criminal who knew a little about
police methods of detecting burglars.

Close scrutiny with a magnifying
glass by Detective Horgas of the vic-
tim’s nightgown and sleeping bag re-
vealed the presence of suspicious stains.
Accordingly, this evidence was pack-
aged and tagged for submission. to the
crime laboratory for testing. As experi-
enced detectives, they knew that a killer
was likely to leave some part of himself,
no matter how small, at the scene of the
crime. It was their job to find it.

Night had fallen by the time Detec-
tive Horgas was satisfied that he and his
colleagues had done their best in the
way of crime scene processing. He or-
dered the crime scene sealed and autho-
rized the release of the body to the
medical examiner’s office for autopsy.

With this, the sleuths returned to the
Major Crimes squad room to start on the
paperwork concomitant with police

work today. With this, brought the sad .

but necessary duty of informing the vic-
tim’s next-of-kin of the tragic news.
This done, the lawmen signed off their
tour of duty and went home for some
much needed rest. 5

All except Joe Horgas. In view of the
fact that Detective Crouch’s neighbor-
hood canvass had, in FBI parlance, met
with ‘‘negative results’’ and Officer
Schoembs’ effort to come-up with any
fingerprints had also been unsuccessful
although his search had netted some

suspicious hairs, the investigation was
lacking any focus. Hence, the lawmen
would need to know the results of the
postmortem examination as soon.as
possible if valuable time was not to
elapse before the M.E.’s findings were
available.

Thus, the early morning hours of
Wednesday, December 2, 1987, found
Joe Horgas in attendance as Dr. ‘Frances

Field,.an assistant medical examiner, ,

went about the grim but essential task of
trying to find answers to the questions:
What had happened to Susan M. Tucker,
aged 44, a citizen of the Commonwealth
of Virginia? And could the body contain
any mute testimony by which the dead
woman could assist in the fight to bring
her murderer to justice?

Dr. Field’s examination disclosed that
the cause of death was ligature stran-
gulation. The brutal perpetrator had
choked the life out of his victim with the
same ropé that he had used to tie her
hands. behind her back. Furthermore, a
vaginal swab taken by the M.E. dis-
closed the presence of semen, indicating
that the victim had been raped.

Hearing this, Joe Horgas remembered
the suspicious stains found on the vic-
tim’s nightgown and sleeping bag. He

would not be surprised now if forensic
analysis did not reveal them to be semen
Stains.

Joe Horgas thanked Dr. Field pro-
fusely for the assistance she had so gen-
erously afforded the ACPD and headed
home to get a few hours’ sleep before
resuming the investigation the next day.

That afternoon found all the sleuths
assigned to the Tucker murder in the
Major Crimes Division conference
room. They were mulling-over the facts
of the case known up.to that point. They
also began plannimg the most effective
investigative strategy.

Detective Horgas summed up the var-
ious features of the Tucker crime that
seemed distinctive: the breaking and the
entry; the lone woman; the trussing up
of the victim; and the rape.

These facts rang a bell with a detec-
tive newly assigned to thé case, Robert
Carig. He pointed out that the Tucker
case had a pattern of facts which were
similar to a number of unsolved burg-
lary-rapes that had been committed in
Arlington County in 1983. However,
these crimes had unaccountably ceased
in late January 1984. The 1983 crimes
had two other elements: the perpetrator
had used a knife to enforce his demands

Killer broke into Tucker’s apartment via this basement window indicated by arrow.

Inside Detective 43

U

Issues
ules), 5
idence),
, to the
counsel
1e DNA
a chal-

NA evi-
ie Court

e proce-
ayton v.

) (1974),

! . 780, 42
ray, No.
a habeas

- claim in
jent and
_Jeral re-
i, absent
y Spenc-
ee
S.1991).?
aining is-
inef-

1en vo his

msel

istance of
w-familiar
ugton, 466
Ed.2d 674
tive assis-
oner must
was defi-
‘red preju-
04 S.Ct. at
both defi-

a. 563, 385
4th Cir. J.A.
tilted for our
S. 255, 262-
L.Ed.2d 308
a, 283 F.2d
2ncer v. Mur-
', petition for
34). Howev-
rm- uestion
¢ 5 F.3d
3 in the

B.. -3
J by
pss
te.
R24
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a
Be
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sear.
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Hb,
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an
ters
Pan
eee

i

SPENCER v. MURRAY 233
Cite as 18 F.3d 229 (4th Cir. 1994)

cient performance and prejudice; the two are

‘separate and distinct elements of an ineffec-

tive assistance claim. See 466 U.S. at 687,
104 S.Ct. at 2064.

[4] In examining a claim that counsel’s
performance was deficient, we- examine
whether counsel’s performance was reason-
able under prevailing professional norms.
466 U.S. at 688, 104 S.Ct. at 2064. We
conduct this review not by asking whether
we would have defended the petitioner in the
same way, but instead with a deferential eye,
and we presume that challenged acts are
likely the result of a sound trial strategy.
466 U.S. at 689, 104 S.Ct. at 2065.

[5] Just as the petitioner carries the bur-
den of proving that counsel’s performance
was deficient, the petitioner also carries the
burden of affirmatively proving that preju-
dice resulted from counsel’s deficient perfor-
mance. 466 U.S. at 693, 104 S.Ct. at 2067.
The petitioner must affirmatively prove “that
there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different. A
reasonable probability is a probability suffi-
cient to undermine confidence in the out-
come.” 466 U.S. at 694, 104 S.Ct. at 2068.
Further, when it is a conviction the petitioner
is challenging, “the question is whether there
is a reasonable probability that, absent the
errors, the factfinder would have had a rea-
sonable doubt respecting guilt.” 466 USS. at
695, 104 S.Ct. at 2068-69. When it is a death
sentence that the petitioner is challenging,
“the question is whether there is a reason-
able probability that, absent the errors, the
sentencer—including an appellate court, to
the extent it independently reweighs the evi-
dence—would have concluded that the bal-
ance of aggravating and mitigating circum-
stances did not warrant death.” 466 US. at
695, 104 S.Ct. at 2069. Keeping the proper
standard in mind, we turn to each of Spenc-
er’s allegations of ineffective assistance of
counsel.

Issue 1—DNA Expert

[6] Spencer’s Issue 1 on appeal is that his
trial counsel were ineffective because they
failed to procure a defense DNA expert. At
this point, we feel it necessary to point out

that Spencer was tried twice for capital mur-
der in the Circuit Court for the City of -
Richmond by the same trial judge and de-
fended by the same attorneys, Jeffrey L.
Everhart and David J. Johnson. The first
trial commenced on September 19, 1988, and
Spencer was found guilty of the capital mur-
der of Miss Debbie Davis. That trial has
been before us for review and is the subject
of our recent opinion Spencer v. Murray, 5
F.3d 758 (4th Cir.1993), petition for cert.
filed, No. 93-7475 (Jan. 11, 1994). We men-
tion the earlier trial because the state trial
judge, confronted with two very similar trials
just four months apart, allowed the parties to
file consolidated motions for both cases.

On June 15, 1988, Spencer’s attorneys filed
a motion for funds for experts with the trial
court to put the court on notice that they
intended to seek such funds. The court had
an extended discussion with Spencer’s coun-
sel about the motion and procuring an ex-
pert. Spencer, 5 F.3d at 760 n. 2. Spencer
now argues that trial counsel’s performance
was deficient because

[nJothing in the record reveals that counsel
did anything to follow through with this
motion. No mention is made anywhere in
the record of any additional requests for
hearings or experts.

As counsel recognized the need for spe-
cific experts, some affirmative steps should
have been taken to secure, them.... If
nothing else, counsel should have read the
current literature dealing with forensic
DNA.

Spencer’s attorneys filed an affidavit with
the state trial court concerning the allega-
tions made in the state habeas petition. The
affidavit details the research Spencer’s attor-
neys conducted into DNA evidence. Spenc-
er’s attorneys also questioned at least four
experts and attempted to find one who, would
be willing to serve as a defense witness, but
they “were unable to find an expert who was
willing to accept such an appointment.” So
Spencer’s attorneys did take affirmative
steps to secure a DNA expert. The fact that
they could not find one cannot be charged to
them as deficient performance. See also
Spencer v. Murray, No. 3:92CV160, slip op.

————— SCs

coe that’ might have’ injected race into case.
-U.S.C.A. Const.Amend. 6.

ne 8, Criminal Law ¢641.13(7)

Defense counsel adequately investigated
defendant’s background to uncover mitigat-
ing evidence in capital murder case, for pur-
poses of defendant’s ineffective assistance
claim; counsel or their private investigator
interviewed family members, neighbors,
teachers, employers, and halfway house per-
sonnel, and had observed mitigation witness-
es at defendant’s first trial. U.S.C.A. Const.
Amend. 6.

9. Criminal Law <€641.13(6)

Defense counsel’s failure to seek ap-
pointment of psychologist to evaluate defen-
dant’s mental state was reasonable strategy
decision and did not deny defendant effective
assistance of counsel in capital murder case;
defendant’s attorneys did not have reason to
doubt defendant’s sanity or his ability to
recall his whereabouts at time of crime based
on their own experiences in talking with de-
fendant, knew that attorney who represented
defendant at his first trial had hired both
psychiatrist and a psychologist who had
found complete lack of mitigating circum-
stances. Va.Code 1950, § 19.2-264.3:1, subul.
F; U.S.C.A. Const.Amend. 6.

10. Criminal Law <641.13(6)

Defense counsel’s failure to bring to
light arguable flaws in DNA testing was not
ineffective assistance in capital murder pros-
ecution, where experts in the field did not
know of such flaws at time of trial, and such
flaws were still uncertain. U.S.C.A. Const.
Amend. 6. ;

11. Habeas Corpus <=401, 490(1)
Admission of DNA statistical evidence in
capital murder case was not constitutional
error, precluding consideration of defaulted
claim regarding such evidence in federal ha-
beas case under “actual innocence” inquiry;
whether probability statistics should have
been admitted was question of state law that
did not involve federal constitutional issue,
and state trial court considered information

1. Our recitation of the facts is condensed from
the Virginia Supreme Court’s opinion in this

case, Spencer v. Commonwealth, 238 Va. 563,

Re es

Pee

~ 18 FEDERAL REP:

ah
\

RTER, 3d SERIES

about limitations of the statistics along with
other information about DNA evidence and
decided to admit statistics.

12. Habeas Corpus ¢=401

Actual innocence test for defaulted
claims applies in habeas corpus proceedings
to guilt-phase errors in capital murder trials.

ARGUED: William Theodore Linka, Boat-
wright & Linka, Richmond, Virginia, for Ap-
pellant.

Donald Richard Curry, Senior Asst. Atty.
Gen., Office of the Attorney General, Rich-
mond, Virginia,-for Appellees.

ON BRIEF: Stephen D. Rosenthal, Attor-
ney General of Virginia, Office of the Attor-
ney General, Richmond, Virginia, for Appel-
lees.

Before WIDENER, PHILLIPS, and
WILLIAMS, Circuit Judges.

OPINION
WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia
state court judgment sentencing him to death
for the murder of Dr. Susan Hellams. The
district court denied Spencer’s petition for a
writ of habeas corpus. We affirm.

I

Dr. Susan Hellams was a resident in neu-
rosurgery at the Medical College of Virginia
in Richmond.! She was murdered in her
home on the night of October 2, 1987 or the
early morning of October 3, 1987. The police
were notified by her husband after he re-
turned home and discovered her partially-
clothed body on the floor of the couple’s
bedroom closet. Dr. Hellams’s attacker ap-
parently gained access to the house by cut-
ting out a large portion of a second-story
bedroom window screen.

The medical examiner testified at trial that
the cause of Dr. Hellams’s death was ligature

385 S.E.2d 850, 851-53 (1989), cert. denied, 493 |

U.S. 1093, 110 S.Ct. 1171, 107 L-Ed.2d 1073

(1990).

strangulatio

found aroun
iner also tes
other injuri
blunt force
bruises and
with one m:
right leg. 1
had found f
on her bac
medical exa
al tears of t
tent with t
‘by a hard ¢
563, 385 S.

The pres
swabs take
perianal an
zoa also we
and slip. “
as well as
and slip, v
wealth’s ex
Spencer's |
identifiable
at trial tha
a third pa
nor her mh
secretions.
that the se
on the ski
Spencer’s
with Dr.
secretions
perianal sv
nation of £
types and
the blood
band.

A sampl
of the ser
slip were
two sampi
admitted :

The tria
of the Cit

2. . Spence:
subtype |
shares th:
238 Va.

nce and

lefaulted
ceedings
er trials.

“

<a, Boat-
, for Ap-

sst. Atty.
al, Rich-

al, Attor-
re Attor-
x Appel-

and

\ inia
. to death
ms. The
ion for a

it in neu-
* Virginia
d in her
87 or the
The police
2r he re-
partially-

couple’s
acker ap-
e by cut-
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trial that
s ligature

lenied, 493
d.2d 1073

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strangulation, apparently caused by two belts
found around her neck. The medical exam-
iner also testified that Dr. Hellams sustained
other injuries, including a fractured nose, a
blunt force injury to the lower lip, various
bruises and scrapes, and an injury consistent
with one made by a shoe on the back of her
right leg. In addition, the medical examiner
had found fluid consistent with seminal fluid
‘on her back and in the gluteal fold. The
medical examiner also observed small mucos-
al tears of the anal ring, which were “consis-
tent with the anus having been penetrated
‘by a hard object, such as a penis.’” 238 Va.
563, 385 S.E.2d at 852.

The presence of spermatozoa was found on
swabs taken from the vagina, rectum, and
perianal area. Seminal fluid and spermato-
zoa also were found on Dr. Hellams’s skirt
and slip. The swab from the perianal area,
as well as the stains on Dr. Hellams’s skirt
and slip, were examined by the Common-
wealth’s expert serologist and compared to
Spencer’s blood. Based on her analysis of
identifiable secretions, the serologist testified
at trial that the source of the secretions was
a third party, because neither Dr. Héllams
nor her husband could have produced the
secretions. The serologist further stated
that the secretions in the seminal fluid found
on the skirt and slip were consistent with
Spencer’s secretion type and inconsistent
with Dr. Hellams’s husband’s type.2 The
secretions in the seminal fluid found on the
perianal swabs were consistent with a combi-
nation of Spencer’s and Dr. Hellams’s blood
types and inconsistent with a combination of
the blood types of Dr. Hellams and her hus-
band.

A sample of Spencer’s blood and a sample
of the seminal fluid found on Dr. Hellams’s
slip were subjected to DNA analysis. The
two samples matched. This evidence was
admitted at trial.

Proceedings

The trial commenced in the Circuit Court
of the City of Richmond, Manchester Court-

2. Spencer is a type O secretor, PGM type 1, PGM
subtype 1+, and peptidase A type 1. Spencer
shares this type with only 13% of the population.
238 Va. 563, 385 S.E.2d at 852.

SPENCER v. MURRAY ggg
Cite as 18 F.3d 229 (4thCir. 1994)

house, on January 17, 1989. The jury con-
victed Spencer of capital murder, rape, sod-
omy, and burglary. 238 Va. 563, 385 S.E.2d
at 351. At the penalty phase of the trial, the
jury fixed Spencer’s punishment for the capi-
tal murder at death. Spencer appealed his
convictions and death sentence to the Su-
preme Court of Virginia, which affirmed.
Spencer v. Commonwealth, 238 Va. 563, 385
S.E.2d 850 (1989). The United States Su-
preme Court denied Spencer’s petition for a
writ of certiorari. Spencer v. Virginia, 493
U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073
(1990).

Spencer next filed a petition for a writ of
habeas corpus with the state trial court on
September 10, 1990. The petition was dis-
missed on November 15, 1990. Spencer v.
Murray, No. ML2232 (Cir.Ct. for the City of
Richmond, Manchester Courthouse, Nov. 15,
1990). The Supreme Court of Virginia af-
firmed. Spencer v. Murray, No. 910252 (Va.
June 4, 1991). Spencer then turned to the
United States District Court for the Eastern
District of Virginia. The district court de-
nied his habeas petition. Spencer v. Murray,
No. 3:92CV160 (E.D.Va. Jan. 21, 1993).
Spencer then asked the district court, on
February 11, 1993, for a Certificate of Proba-
ble Cause to appeal to this court. That
request was denied. Spencer v. Murray, No.
3-99CV160 (E.D.Va. March 30, 1993).

Spencer filed his Notice of Appeal in the
district court on April 29, 1993. Spencer
then applied to this court for a Certificate of
Probable Cause on May 25, 1993. Appellee
Murray responded with a motion to dismiss
the appeal on May 11, 1993. By order filed
June 21, 1993, we denied Murray’s motion to
dismiss and, as individual judges, granted
Spencer’s application for a Certificate of
Probable Cause. Spencer v. Murray, No.
93-4002 (4th Cir. June 21, 1998).

The Execution Order and Stay

On the same day that we entered our
order, the Commonwealth sought and re-
ceived from the state trial court an execution

Dr. Hellams was a nonsecretor, PGM type 2-1,
PGM type 2+ 1-, and peptidase A type 1. Her
husband is a nonsecretor, PGM type 2-1, and
PGM subtype 2+ 1+. 7d.

Peer
Ag pte

ii ci asd EAN SSI ta AS > Ohne is ns

on eee


232

date of August 26, 1993, in this case. Com-
monwealth v. Spencer, Nos. 88-181-F to 88-
184-F (Cir.Ct. for the City of Richmond,
Manchester Courthouse, June 21, 1993). On
July 23, 1993, Spencer applied to this court
for a stay of execution, which we granted on
July 27, 1993, for the pendency of this appeal
or until further order of this court. Spencer
v. Murray, No. 93-4002 (4th Cir. July 27,

- 1993).

Il

On appeal, Spencer raises seven issues: (1)
his trial counsel were ineffective because
they failed to secure a DNA expert for the
defense; (2) he is “actually innocent” of the
crime for which he was sentenced to death,
and he would not have been convicted if he
had been able to challenge the DNA evidence
and if the “prejudicial injection of astronomi-
cal probability ratios” into the trial had not
occurred; (3) his trial counsel were ineffec-
tive because they did not conduct voir diré on
the issue of racial prejudice; (4) Virginia's

proportionality review is unconstitutional,
and her application of procedural default
rules was unconstitutional because it did not
make “rational exceptions”; (5) the jury in-
structions at trial on mitigating evidence
were constitutionally inadequate; (6) his trial
counsel were ineffective because they did not
explore or present certain mitigating evi-
dence; (7) the DNA analysis used on the
evidence in this case was subject to error and
produced unreliable results, the results
should not have been admitted, and his trial
counsel were ineffective in handling this evi-

dence.

3. The two exceptions are (1) cause for the default
and actual prejudice that results from the viola-
tion of the petitioner's federal rights, see Murray
v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986), or (2) failure to review the
claims would result in a fundamental miscar-
riage of justice within the meaning of the actual

innocence test of Sawyer v. Whitley, — U.S.
—— 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S.

,

1992). See Coleman, — U.S. at ——, 111 S.Ct.

at 2551.

4. Spencer's claim regarding the admissibility of
the DNA evidence in this case was raised on
direct appeal to the Virginia Supreme Court,

18 FEDERAL REPORTER, 3d SERIES

Issues Precluded from Review )
[1] We do not consider Spencer’s Issues

4 (proportionality review and default rules), 5
(jury instructions on mitigating evidence),
and 7 (DNA analysis claims), except to the
extent that in Issue 7 he alleges his counsel
were ineffective in their handling of the DNA
evidence and to the extent he raised a chal-
lenge to the admissibility of the DNA evi-
dence on direct review. The Supreme Court
of Virginia held that these issues were proce-
durally defaulted under 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). Spencer v. Murray, No.
910252 (Va. June 4, 1991). When a habeas
petitioner has defaulted in a federal claim in
state court pursuant to an independent and
adequate state procedural rule, federal re-
view of the defaulted claim is barred, absent

two exceptions not urged upon us by Spenc-
er. Coleman v. Thompson, — U.S. —,
111 S.Ct. 2546, 115 L.Ed.2d 640, (U.S.1991).
We address each of Spencer’s remaining is-
sues, turning first to his allegations of inef-
fective assistance of counsel, and then to his
actual innocence claim.‘

A.

Ineffective Assistance of Counsel

[2,3] Claims of ineffective assistance of
counsel are governed by the now-familiar
standard of Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To prevail on an ineffective assis-
tance of counsel claim, the petitioner must
show that counsel’s performance was defi-
cient and that the petitioner ‘suffered preju-
dice as aresult. 466 U.S. at 687, 104 S.Ct. at
2064. The petitioner must show both defi-

Spencer v. Commonwealth, 238 Va. 563, 385
S.E.2d 850, Brief of Appellant at 9 (4th Cir. J A.
at 65), and it therefore is not defaulted for our
purposes. See Harris v. Reed, 489 U.S. 255, 262-
63, 109 S.Ct. 1038, 644-45, 103 L.Ed.2d 308
(1989); Grundler v. North Carolina, 283 F.2d
798, 800 (4th Cir.1960); see also Spencer v. Mur-
ray, 5 F.3d 758, 761 (4th Cir.1993), petition for
cert. filed, No. 93-7475 (Jan. 11, 1994). Howev-
er, we decided essentially the same question
against Spencer once before, see Spencer, 5 F.3d
at 762-63, and adhere to that decision in the

present case.

cient perfo
‘separate a
tive assist
104 S.Ct.

{4] In
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whether ¢
able und
466 US.
conduct t
we would
same way
and we °
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466 U.S.

[5] J
den of {
was defic

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there is
counsel’:
the proc
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760

S.E.2d 785 (1989), cert. denied, 493 U.S. 1093,
110 S.Ct: 1171, 107 L.Ed.2d 1073 (1990). For
our purposes, a brief recitation will suffice.
Miss Davis was murdered sometime between
9:00 p.m. on September 18, 1987 and 9:30
a.m. on September 19, 1987. The victim’s
body was found on her bed by officers of the
Richmond Bureau of Police.. She had, been
strangled by the use of a sock and vacuum
cleaner hose, which had been assembled into
what the Virginia Court called a ligature and
ratchet-type device. The medical examiner
determined that the ligature had been twist-
ed two or three times, and the cause of death
was ligature strangulation. The pressure ex-
erted was so great that, in addition to cutting
into Miss Davis’s neck muscles, larynx, and
voice box, it had caused blood congestion :in
her head and a hemorrhage in one of her
eyes. In addition her nose and mouth were
bruised: Miss Davis’s hands were bound by
the use of shoestrings, which were attached
to the ligature device. 384 S.E.2d at 789.

Semen stains were found on the victim's
bedclothes. The presence of spermatozoa
also was found when rectal and vaginal
swabs of the victim were taken. In addition,
when the victim’s pubic hair was combed, two
hairs were recovered that did not belong to
the victim. 384 S.E.2d at 789. The two
hairs later were determined through forensic
analysis to be “consistent with” Spencer’s
underarm hair. 384 S.E.2d at 789. Further
forensic analysis was completed on the se-
men stains on the victim’s bedclothes. The
analysis revealed that the stains had been
deposited by a secretor whose blood charac-
teristics matched a group comprised of ap-
proximately thirteen percent of the popula-
tion. Spencer’s blood and saliva samples
revealed that he is a member of that: group.
384 S.E.2d. at 789. “ss

1. We have some problem in determining the
precise issues raised in Spencer's brief ‘as ‘there

phrased and believe that our statement of the.

issues is at least inclusive. Compare “Argu-
ment”’.in the table of contents (four principal and
fourteen sub-issues), with “Questions Presented,”

Appellant's Brief at 1, (eight issues), and “‘Assign-_

‘ments of Error,” ‘id. at 2 (eight issues).

2. Spencer's contention that the trial court denied
him funds for an expert if not frivolous, is little
better. When ‘Spencer's counsel argued his mo-

5 FEDERAL REPORTER, 3d SERIES

Next, a sample of Spencer’s blood and the
semen collected from the bedclothes were
subjected to DNA analysis. The results of
the DNA analysis, performed by Lifecodes
Corporation, a private laboratory, established
that the DNA molecules extracted from
Spencer’s blood matched the DNA molecules
extracted from the semen stains. Spencer is
a black male, and the evidence adduced at

trial showed that the statistical likelihood of

finding duplication of Spencer’s particular
DNA pattern in the population of members
of the black race who live in North America
is one in 705,000,000 (seven hundred five
million). In addition, the evidence also
showed that the number of black males living
in North America was approximately 10,000,-
000 (ten million). 384 S.E.2d at 790.

On September 22, 1988 a Richmond jury
found Spencer guilty of rape, burglary, and
capital murder. The jury unanimously fixed
Spencer’s punishment at death, which was
affirmed on direct appeal. Spencer then
filed a petition for habeas corpus with the.
state trial court, which was dismissed. He
appealed to the Virginia Supreme Court, but
because his appeal was filed one day out of
time, the Virginia Supreme Court refused
the petition. Spencer then filed a petition
for a writ of habeas corpus with the United
States District Court for the Eastern District.
of Virginia. The district court denied .his
petition. Spencer v. Murray, No.

3:91C'V00391 (E.D.Va. April 30, 1992).

On appeal, Spencer raises essentially five
issues }: (1) the DNA evidence in this case is
unreliable; (2) defense counsel was denied an .
opportunity: to adequately defend against the
DNA evidence:because the trial court denied
a discovery request: for Lifecodes’ worknotes
and. memoranda, the trial court refused to
provide funds for an. expert defense witness,”

tion for funds for an expert on August 2, 1988,
the attorneys advised the court that the “motion
was filed merely to put the Court on notice that
we will be making the motion.” At that time the
defense did not have an expert at hand, and the
court and Mr. Johnson, one of Spencer's lawyers,
had an extended discussion with respect to that
subject: Bye see

THE COURT: I want to know what the
experts are going to say before I appropriate
funds.


SPEN CER v. MURRAY 761
Cite as 5 F.3d 758 (4th Cir. 1993)

and the prosecution did not reveal evidence
of problems with Lifecodes’ testing methods;
(3) the trial court should not have admitted
the DNA evidence; (4) the prosecution im-
properly struck Miss Chrita Shelton from the
jury for racially-motivated reasons as prohib-
ited by Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the
future dangerousness aggravating factor in
Virginia’s capital sentencing scheme is un-
constitutionally vague.

II

Issues and Claims Precluded From Review

{1] The majority of Spencer’s claims un-
der issues (1) and (2) cannot be considered.
The Circuit Court of the City of Richmond
dismissed Spencer’s habeas petition -on Octo-
ber 10, 1990. Spencer v. Murray, No.
ML2223 (Cir.Ct. for the City of Richmond,
Manchester Courthouse, Oct.. 10, 1991).
Spencer’s habeas appeal to the Virginia Su-
preme Court was filed on January 11, 1991,
which was one day after the deadline for
filing set by Rule 5:17(a)(1), Rules of Va.Sup.
Ct., had expired. Spencer also filed a re-

_ quest to extend the time for filing that peti-

tion for appeal. On March 18, 1991, the
Supreme Court of Virginia denied Spencer’s

MR. JOHNSON: I am not asking you to do
‘that.. We will have that at the appropriate
time.

THE COURT: You need an expert to come
down here for everything if the money is
enough. ;

MR. JOHNSON: That's true. If we could
get them.

THE COURT: Most experts boil down to,
how much am I getting paid? A lot of them.
So basically, it is, if I know, then we can do it,
I will not do that. I see what you are driving
at. If you have: got somebody to Say, an ex-
pert, DNA is not a reliable test, I would think
that would be a proper issue for the jury to
believe, which is what you want. But I am not
going to take some doctor, or lawyer, or Indian
chief, or what have you, you know, over.a
whole business world. But I want to know
some of his reputation and so forth that would

come down to what he really knows about the
~ subject. J

MR. JOHNSON: Yes, sir. pies
THE COURT: Don't you ever fear that we.are
going to deny any defense that you might have.

I do not want to go so far as to allow frivolous .

defenses, and I don’t think you want to present

those, either. Because that would’ be damag-
ing to your case.

motion for extension of time and dismissed
the habeas appeal, citing Rule 5:17(a)(1).
Spencer v. Murray, No. 910055 (Va. March
18, 1991) (two documents). Because the rea- -
son for dismissing Spencer’s habeas appeal
given by the Virginia Supreme Court was a
clearly stated adequate and independent
state ground, federal habeas review of claims
raised in his state habeas appeal is foreclosed
unless those claims were otherwise exhaust-
ed by being raised on direct appeal. See
Harris v. Reed, 489 U.S. 255, 262-68, 109
S.Ct. 1038, 1042-48, 103 L.Ed.2d 308 (1989);
see also Coleman v. Thompson,:— U.S:
—, 111 S.Ct. 2546, 115 L.Ed.2d 640 (U:S.
1991); Grundler v. North Carolina, 283 F.2d
798, 800 (4th Cir.1960) (“If a question is
presented and adjudicated by the - state’s
highest court once, it is’ not necessary to urge
it upon them a second time under an alter-
nate procedure.”).. The claims. barred from
consideration include the claims now made.as

we have detailed herein about the unreliabili-

ty of the DNA evidence (issue 1), as well as
the claim that the defense could not ade-
quately prepare because the trial court did

not provide a defense expert (a part of issue
2).

[2] The claim that the defense could not
adequately prepare because the trial court

So when you come in, get your expert, what
his credentials are to become an expert. [Y]Jou
will certainly talk to him, what he is going to
say or what he can possibly say. We can find

- that out. Z

I have so many experts. I believe there is a
handwriting expert. It was supposed to be out
in the west. The lady at the trial delayed the
trial for three months, sent it out west and
came back and said he would testify to the one
thing the day before trial. And he eventually
said, the State expert is exactly right. I agree
with him 100 percent. That's what I am talk-
ing about. :

When you get that; you let me know.

MR. JOHNSON: Yes, sir, Judge. Any expert
we desire. (emphasis added) © ss

So, the trial judge not only assured the defense
that it could have an expert witness, but also
encouraged the defense to get one that would
truly be helpful to its case. Spencer's ‘present
argument that it was improper for the trial: judge
to refuse to appropriate funds without the de-
fense actually having an expert. (and, in fact,
admitting that its motion was for notice purposes
only) and without knowing that the witness
would actually aid the defense is a mischaracteri-
zation of the trial judge’s thoughtful remarks.


an

S3E3US RAS AA LATERAL a

SPENCER v. MURRAY
Cite as 5 F.3d 758 (4th Cir. 1993)

of. Virginia, Robert R. Merhige, Jr., Senior
Judge, denied petition: Petitioner appealed.
The Court of Appeals, Widener, Circuit
Judge, held that: (1) admission of deoxyribo-
nucleic acid (DNA) ‘evidence did not violate
due ‘process, ‘and (2) prosecutor gave race-
neutral reason for striking of black prospec-
tive juror.

Affirmed.

1. Habeas Corpus ©366, 422

Claims of unreliability of deoxyribonu-
cleic acid (DNA) evidence and that. defense
could not adequately prepare because trial
court did not provide defense expert were
barred from consideration in habeas corpus
proceeding where reason given by state Su-
preme Court for dismissing petitioner’s state
habeas appeal, i.e., that petition was filed one
day after deadline for filing, was a clearly
stated adequate and independent state
ground and claims were not otherwise ex-
hausted “by being raised on direct appeal.
Va.Sup. Ct.Rules, Rule 5:17(a)(1).

2. Habeas Corpus ¢=816

Although habeas corpus petitioner’s
claim that defense could not adequately pre-
pare because state trial court did not grant
its request for discovery of laboratory's work
notes and memoranda appeared to have been
raised on direct appeal in state court, Court

of Appeals would not consider claim on ap-

peal where it was not raised in district court.
3. Constitutional Law ¢266(3.1)
Criminal Law ¢=388(2)

Admission of deoxyribonucleic acid
(DNA) evidence in rape/murder prosecution

did not violate due process; three expert

witnesses, including the people who per-
formed the tests, as well as three indepen-
dent experts, testified to the effect that tests
were reliable and properly performed and

- that DNA evidence showed defendant to

have .been the man whose seminal fluid was

found in victim’s bed. US.C.A. Const.
Amends. 5, 14.

4. Jury €33(5.15)

Prosecutor provided race-neutral rea-
sons for striking black prospective juror

759

when he stated his concern about literacy
and educational level of someone who had not
heard anything about case in which there had
been extensive publicity and that he was
afraid that juror was not an informed citizen.

5. Homicide ¢351

Virginia statute providing for future
dangerousness as an aggravating factor in
death penalty case does not fail to channel
jury’s discretion in sentencing. Va.Code
1950, § 19.2-264.2. |

6. Habeas Corpus ¢=462, 494

Claim of actual innocence, even if based
on newly discovered evidence, did not state a
ground for federal habeas relief absent inde-
pendent constitutional violation occurring in
underlying state proceeding.

7. Homicide 343

Record did not support finding that,
even if claimed errors had not occurred in
death penalty. case, no reasonable juror
would have found defendant eligible - for
death penalty under applicable Virginia law.

J. Lloyd Snook, III, Snook & Haughey,
Charlottesville, VA, argued (William T. Lin-
ka, Boatwright & Linka, Richmond, VA, on
brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty.
Gen., Richmond, VA (Mary Sue Terry, Atty.
Gen. of Virginia, on brief), for respondent-

_ appellee.

Before WIDENER, PHILLIPS, and
WILLIAMS, Circuit mie:

OPINION
WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia
state court judgment sentencing him to death

for the murder of Debbie le Dosey: Davis. We

wx

The gruesome details of: ‘the ‘murder of
Debbie Davis can be found in the Supreme
Court of Virginia’s opinion on direct review,
Spencer v. Commonwealth, 238 Va. 295, 384

PAPA Pte tress ba tas


"y

762 5 FEDERAL’ REPORTER, 3d SERIES

did ‘not’ grant its request :for discovery’ of
Lifecodes’ worknotes and’ menioratida (a part
of ‘issue 2) appears to have been raised on
direct ‘appeal, see Opening Brief of Appellant
in the Supreme Court of Virginia, ‘Nos.
890096 & 890097, at 10. We do not consider
this claim, however, because it was not raised
in the district court. McGowan v. Gillenwa-
ter, 429 F.2d 586 (4th Cir.1970) (per curiam).
The claim that the defense could not ade.
quately prepare because the prosecution, and
its agent, Lifecodes, failed to disclose prob-
lems with Lifecodes’ testing methods that
they knew. or should have known: existed 3 (a
part of issue 2) is not considered because. it
appears never to have been raised in any
state court and therefore is not exhausted.
See 28 'U.S.G. § .2254(b). Although one claim
nominally has been denominated asa Brady
claim in the federal habeas petition, the dis-
trict court correctly“held that to have been
precluded from cotisideration by the late fil-
ing of the state habeas appeal. oe

The. claims properly before us because
they were raised in Spencer’s direct appeal
to the Virginia Supreme Court are issues 3,
4, and 5.

III.
Admissibility of the DNA Evidence
[3] Spencer’s first claim that we consider
is whether Spencer was denied due process
of law because. the trial court improperly
admitted the results of the DNA testing. It
_has been settled in this circuit for years that
a claim about the admissibility of evidence
under, state.law rarely is a claim upon which

federal haheas corpus. relief can be granted.
In 1960 we decided: “i

-- Normally, the admissibility of evidence, the
sufficiency of evidence; and:instructions to
“the jury in state trials are matters of state
law and procedure not involving federal
~ constitutional issues. It is only in cireum-
_ Stances impugning fundamental fairness. or
infringing ‘specific’ constitutional’ protec-

tions that’a federal question is presented.

3. Spencer argues that this is a‘claim under Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194; 10

The role of a fedéral habeas corpus peti:
tion is not to serve as an additional appeal.
Grundler v. North Carolina, 283 F.2d 798,
802 (4th Cir.1960), Pe
The Supreme Court recently issued a simi-
lar holding ‘in. Estelle v. McGuire. — US.
—, 112 S.Ct. 475, 116 L.Ed.2d 385 (U.S,
1991). In McGuire, the Supreme Court was
confronted with a ruling under California law
that allowed prosecutors to introduce evi-
dence of prior injuries to a child to prove
“battered child syndrome” in the context of a
murder trial. The Court of Appeals held
that the defendant’s due process rights were
violated in part because the court concluded
that. the evidence was improperly admitted
under state law. The Supreme Court stated
that “[sluéh an inquiry” into the application
of’ state evidence law A
is no part of a federal court’s habeas re-
view of a state conviction. We have stated
many times that federal habeas corpus te-
lief does not lie for errors of. state law.
Today we reemphasize that it is not the
province of a federal habeas court to reex-
amine state court determinations on state
law’ questions. In conducting habeas re-
view, a federal court is limited to deciding
whether a conviction violated the Constitu-
tion, laws, or treaties of the United States.

McGuire, — U.S. at ——, 112 S.Ct. at-480
(citations and internal quotation marks omit-
ted).

In light of the Supreme Court’s directive
and our own precedent on this subject, we
are of opinion that the admission of the DNA
test results into evidence did not create “cir-
cumstances impugning fundamental fairness
or infringing specific. constitutional protec-
tions.”": Grundler, 283 F.2d at 802. The
errors Spencer argues might have occurred
with his DNA test, see infra, note 5, are not
even remotely suggested by the record in
this ‘case.’ The admissibility of the DNA
evidence was contested at trial despite the
fact that the defense could find no expert
Witnesses to assist it:: Seé <Affidavit at 18,
J-A. at 264-65. On direct review the Virginia

Supreme Court applied the Virginia admissi-

-L.Ed.2d 215 (1963).


SNENET Sze

Py [oe

et ee ee ey “ete

“Washing 4 WN Pose

3-2¢-¢4 AROUND THE REGION

Virginia Killer Is Sentenced _
To Death for the Third Time.

Timothy Spencer, already under two death sen- -

tences for strangling women in Arlington and Rich-
mond, was sentenced yesterday to be electrocuted

for the slaying of a Richmond doctor.
Richmond. Circuit Judge James Wilkinson ordered

that Spencer be put to death for the October 1987

rape and murder of Dr: Susan Hellams. He also was

20 years in prison for breaking and entering.

sentenced to two life terms for rape and sodomy and |

_-Hellams,-a neurosurgery resident. at the Medical —

College of Virginia, was found by her husband in the
bedroom of their home on Oct. 3, 1987. She had
been bound anda belt was tied around her neck,
« Spencer has already been sentenced to dié for the
Thanksgiving 1987 killing of Susan Tucker, 44, of
Arlington and the Sept. 19, 1987, slaying of Debbie
Davis, 35, of Richmond. es

Spencer was the first person to be convicted in
Virginia based-on the sophisticated laboratory -anal-
ysis of DNA, the basic genetic material found in each
cell. Each person is believed to have a unique genetic

- pattern, with the exception of identical twins,

Spencer still faces trial for the slaying of Diane

~ Cho, 15, of Chesterfield County.


SP ZUCER , Vineet A ey

rovind for a time and then went back
ta her own place and to bed:

“I didn’t know what to say to him,”
she added.

Ignorant of trial procedure, Miss
Spicks almost created a mistrial at
one stage of her evidence by telling the
jury that Shorey had a violent past
and Defense Attorney Richard Fergu-
son picked this evidential error up
immediately by demanding one, on the
grounds that this little gem of infor-
mation could seriously jeopardize a fair
trial for his client, but his motion for
mistrial and a new hearing was de-
nied.

In their endeavour to connect blood
and saliva specimens found on the
carpet, the police forensic scientists
used a new technique called PCR (poly-
merase chain reaction) which had
been tested only once before, but
there were not enough mutual charac-
teristics to link the slain women to
the blood and saliva found within the
required parameters.

Finally, victory for the Crown in con-
vincing the jury of their case was
achieved by discrediting the alibi pro-
vided by Miss Spicks. Apart from her
own disturbed background and infatu-
ation with Shorey came the testimony
of another witness called Mister X.
He claimed that while sharing a cell
in Brixton Remand Prison, Shorey con-
fessed to the double murder, but told
him the police would never be able to
prove it.

The old argument came up then,
pressed by Defense Attorney Fergu-
son for the jury to seriously consider
as he challenged this testimony. Could
Mister X be considered reliable or
was he simply saying something he
hoped might later prove beneficial to
himself?

But it was perhaps Prosecutor Nut-
ting’s continual probing in the end
which clinched the Crown case in the
eyes of the jury as Miss Spicks admitted
tearfully to the court that she had
been wrong in giving police the state-
ments that had originally given Shorey
a clean bill, and put him above suspi-
cion in the clear.

After she left the building shielding
her face and in tears on July 13, the
jury returned with their verdicts. Shorey
was found guilty of murdering both
women and it was his turn to break
down and cry when the judge, Mister
Justice Wright, passed a life sentence
on him and added:

60

“ Tt must be a matter of speculation
as to what made you commit these
appalling crimes.”

The police, however, have their own
ideas about that .....

They think that Shorey called at the
apartment when Elaine Forsyth was
alone to ask her to let him return per-
manently to live there.

They think Elaine may have been an-
gered by learning of his association
with another woman during his ab-
sence, although she did not know that
woman to be Miss Spicks whom she
did not know anyway.

And she was probably also upset
because Shorey was starting to pay
unwelcome attentions to her new room-
mate Patricia Morrison. So, the police
believe, Elaine told him to pack his
remaining things left in the apartment
and take them with him immediately.

According to Superintendent Parratt
this would have been too severe a blow
to Shorey’s monumental ego, arrogance
and macho conceit. An argument blew
up, he struck Elaine down after vi-
ciously beating her about the arms,
head and upper body, then he strangled
her with that curtain cord.

While he was wondering what to do
with her corpse, Patricia Morrison sud-
denly came home to see if Elaine was
ready to join her and their mutual friend
for the Madonna concert.

She would have tried to turn and
run out up into the street for safety
and help after one horrified look at
her friend’s body lying in the apartment
but Shorey attacked her too and final-
ly strangled her with the strap off her
own shoulder bag.

One by one he then rolled the bod-
ies into the carpet and carried them
upstairs to the street and the car parked
there. As he did so, he clearly did not
realize or see that some specks of blood
dripped from his bundle onto the heels
of his sneakers.

Engrossed in this macabre task, per-
formed twice over, he bumped into
the gas heater in the hallway and its
vibratory rattle on one of the journeys
roused that neighbor at 4 a.m. At that
nocturnal hour the street outside is nor-
mally deserted and no one would be
likely to see him transferring his bur-
dens, one by one, to the car.

Then he cleaned up the apartment and
started to think of somewhere to dump
the bodies. Shorey did not talk in court,
so only he knows precisely at what hour
he started cruising round the city with

his corpses after making arrange-
ments with his friend to collect the car-
pet for cleaning.

One day he mighi decide to talk
and it might go some way toward a par-
tial mitigation of his sentence if not the
deed itself. Meanwhile, he serves out
his time.

Superintendent Parratt had the bot-

tom line when he told pressmen after
the trial:

“Shorey thought he could run rings
round us, the law, and the jury..... but
he was mistaken.” *

DEATH ROW DOCS


pete

ee

Se ESN aa TNS se rent

352 129 SOUTHEASTERN REPORTER (Va.

6. Criminal law @=>1171(1)—Improper argu-
ment of counsel held not ground for reversal
In view of evidence.

In prosecution for murder, improper argu-
ment of counsel assisting in prosecution held not
grounds for reversal, in view of conclusive evi-
dence of defendant's guilt and enormity of his
crime,

7. Criminal law @=>-1166!/.(1)—Improper dem-
onstrations of bystanders held not grounds
for reversal.

Improper demonstrations of bystanders in
presence of jury held not grounds for reversal,
in view of reprimand of court and instructions
to jury to disregard.

Error to Circuit Court, Lee County.
William Spencer was convicted of murder,
and he brings error. Affirmed.

I. W. Pennington, of Pennington Gap, for
plaintiff in error.

John R. Saunders, Atty. Gen., and Leon
M. Bazile and Lewis H. Machen, Asst. Attys.
Gen., for the Commonwealth.

CHICHESTER, J. William Spencer, a
colored man, and a convict working with
the state road force in Lee county, was in-
dicted for the murder of a white girl, Maxie
Kinser, 13 years of age, in the county of
Lee, on October 31, 1924. He was ably de-
fended by counsel assigned him by the court
for this purpose.

The jury found him guilty of the murder,
and fixed his punishment at death. Upon
this verdict judgment was rendered by the
court, and from that. judgment a writ of
error was awarded,

There are three assignments of error:

{1} The first assignment alleges error in
giving instruction No. 2 for the common-
Wealth. The instruction was as follows:

“The court instructs the jury that murder by
poison, lying in wait, imprisonment, starving,
or any willful, deliberate, and premeditated kill-
ing, or in the commission of, or attempt to
commit, arson, rape, robbery, or burglary, is
murder in the first degree. All other murder is
murder in the second degree.”

We understand that this assignment of er-
ror Was not insisted upon here, but, if it
had been, the instruction was only given as
the statutory definition of murder. It prop-
erly defined it in the very language of the
statute, it could not have misled the jury,
and there was no prejudicial error in giving
it.

The second assiguinent of error is set out
in bill of exceptions No, 2, where, In effect,
a mistrial is charged on account of alleged
intemperate and inflammatory language used
by the assistant prosecuting attorney, as fol-
lows:

“Gentlemen of the jury, that man_ there

fiend who committed that awful crime of the
killing of that little girl, Maxie Kinser; there is
no doubt or question about that. He did not
rape her, but no doubt that was his purpose. I
believe God sent those two little boys up the
hill making a noise rolling their wheel, which
he heard and ran away. No doubt God sent
these two little boys up there to scare that fiend
away so that the little girl could go on to Heav-
en virtuous. What would he care for a life
sentence in the penitentiary of the state? That
would just be a home for him, there to be fed
and clothed at the expense of the taxpayers of
the state. He has already been confined in the
penitentiary for a long time, and that has done
him no good. You ought to give him the death
sentence. I could gladly see it, and it would do
my soul good to see that fiend—that low-down
nigger—the very scum of the earth, who sits
there, placed in the hottest place in hell, where
he ought to be, and I would rejoice to hear his
flesh broil and his bones crackle.”

[2] The bill of exceptions shows that, upon
objection being made to the language so used,
the court promptly instructed the jury to dis-
regard the statements, and that they should
be in no way influenced by them. The court
was not asked to declare a mistrial, dis-
charge the jury, and grant the prisoner a
new trial, or after the verdict to set it aside
and grant the prisoner a new trial. The ob-
jection and exception were to the language
used, without further motion of any kind.
The proper procedure would have been to
move the court to set aside the verdict of
the jury and grant the prisoner a new trial,
or to discharge the jury and grant the pris-
oner a new trial.

[3] However, if upon the whole case it
appears to this court that the accused was
prejudiced by the language used and did not
have a fair trial, it would be the duty of
this court to reverse the case and remand It
for a new trial.

{4] The decisions in Virginia and_ else-
where support these two general proposi-
tions:

(1) That a new trial may be allowed where
the court has failed or refused to properly
check improper remarks or argument of
counsel, or to properly instruct the jury
thereon, but the statements must be fairly
calculated to improperly influence the jury.
Mullins’ Case, 113 Va. 792, 75'S. FE. 193;
McCoy's Case, 125 Va. 778, 99 S. I. 644.

(2) That there are cases in which the ef:
fect of statements of counsel cannot be ade-
quately overcome by direction to the jury
to disregard the objectionable statements.
Washington & O. TD. Ry. v. Ward, 119 Va.
339, SO S. FE. 140; Rinehart & Dennis Co.
vy. Brown, 137 Va. 675, 120 S. E. 269; Har-
ris v. Commonwealth, 183 Va. 700, 112 8. E.
TSS.

The inquiry upon this assignment of errof,
therefore, is, as stated in 29 Cyc. 774, “wheth-

(pointing towards defendant),.is the low-down

er the statements were fairly calculated to

—

€=—For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

Va) SPENCER v. COMMONWEALTH 353
(129 S.E.) =

fmproperly influence the jury,” notwithstand-
ing the instruction of the court to disregard.
We cannot determine this question by an ex-
amination of the statements alone. The ques-
tlon as to whether language used is prejudi-
cial depends also upon the facts of the par-
ticular case. Thus, if in the trial of a crim-
inal case, the evidence is such that reason-
alle men could not disagree as to the guilt
ef the accused, and further. if the enormity
ef the crime is such that only the highest
petuatty prescrihed by law will meet the ends
of justice, we have a case in which, while
ft would not justify the use of inflamma-
tery language in argument. the use of such
language would not prejudice the accused,
as it might well do in a case where the guilt
of the aceused was not so certainly estah-
Hshed, and where it may be a debatable
question as to the grade of punishment which
thonld be meted out.

We eannot, in any aspect of the ease. jus-
tify the remarks of the assistant attorney
fer the commonwealth. We do not consider
that they amounted to the indulgence in in-
ferences not supported by the evidenee, but
ther were of an inflammatory nature. cal-
culated to aronse prejndice and passion,
which. in’ a ease less certainly made out
than the one here presented, would have
rulsed a serious question as to the propriety
ef declaring a mistrial by the court. A very
Just and proper rebuke was administered
hy the presiding judge, and but for the fact
that the result. as we view the evidence,
“onld inevitably have been the same if the
Assistant prosecuting attorney had not ad-
Tressed the jury at all, we should feel con-
‘trained to reverse the case.

18] The frequency with whieh complaints
ef the use of inflammatory, abusive, extray-
Peont, and intemperate language are reach-
ing this court leads us to suggest that trial
courts are fully competent to protect. them-
Felyex avainst these assaults upon orderly
Pecedure by fining or, in aggravated eases

aud where the offense is persisted in. even j

by imprisoning offenders. It is fair to say,

however, that, so far\as we are advised, no
feuplaint has reached us as to misconduct
ef this character on the part of the regular
Morneys for the commonwealth,

Rut the evidence in’ this case, although
circumstantial, leaves hot a shadow of doubt
“f the guilt of the accused, Reasonable men
fond not differ upon this issue. Nor would
“ed penalty but the extreme penalty of death
vsin to answer for the enormity of. the
‘rime, as evidenced by the manner in which
It was perpetrated,

Tt is not necessary to go at length into the
artnils of the case to demonstrate the truth
of these two assertions, The sutliciency of

the
he proof was admitted by counsel in the ar-
eument,

On the day before the murder the prisoner
had been to the home of the parents of
Maxie Kinser, a 13 year old girl, and had
carried away an opossum, which some mem-
bers of the family had baked for him, in a
pan loaned him for the purpose. He sug-
gested to a companion that there were two
pretty girls at the Kinser home, and if he
would carry the pan back he might get in
with one of them. On the day of the mur-
der he started to the Kinser home to carry
the pan back. Maxie Kinser was alone in
the house at the time, her father having
fone to work, her mother and two sisters
having gone to the home of a married daugh-
ter, and her small brother having gone to
drive the cows to pasture. The prisoner was
seen going in the direction of the house with
the pan; he was seen handing it in the
window to some one inside. It was found
in the Kinser home afterwards. The prison-
er, with a stick in his hand, was seen by
several witnesses running from the direction
of the Kinser house, and a few minutes after
he was seen, the little brother. returning
home with a companion, found Maxie Kinser
in a semiconscious condition, lying on the
fround at the back door of the house. with
her skull erushed. bleeding at the mouth and
ears, and denuded of all her clothing. ‘There
were bruises, described as finger marks. on
her throat, and her body was scratched and
bruised, She died without regaining con-
sciousness.

The little girl was left alone only a few
minutes by her brother, and during that
time she was killed. The time of the ap-
pearance of the prisoner in the vicinity of
the house, at the house, and of his running
away from it, fit in exactly with this short
space of time when she was alone, and there
was a general alarm resulting in Spencer's
arrest almost before he had gotten out of the
shadow of the house. There were blood
spots on his overalls, and analysis showed
them to be human blood. There was other
incriminating evidence, but this is sufticient
to show not only the certainty of guilt but
the enormity of the crime.

[6] In such a case, we cannot conceive
that the remarks of the attorney assisting
in the prosecution could have improperly in-
fluenced the jury either in arriving at a ver-
dict of guilt or in fixing the punishment.

17] The third and last assignment of error
is based upon demonstrations of bystanders
in the presence of the jury. The demonstra-
tion consisted of applause of the remarks of
the attorney above referred to, which was
promptly checked by the court, and all per-
sons engaged in it were severely reprimand-
ed, and the jury were very fully and very
earnestly instructed to disregard it.

4 The prisoner's connection with the |
‘ ‘e” ¢ . 3
te and the enormity of it are sufficiently |

It is needless to go into a discussion of
this assiznment.- Much of what has heen
said in the discussion of the second assign-

4
“eated hy tho following brief statement:| ment is applicable here. In addition, the

129 SE 23

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350 129 SOUTHEASTERN REPORTER (Va.

machine behind him, he started to return,
but Amos, the deceased, volunteered to go
for it instead, explaining that, as Mrs. Mar-
tin was mad with Hawkins, there might be
further trouble if he (Hawkins) should re-
turn to the house. Amos forthwith entered
the front door; a fight ensued in the hall-
way immediately; and he very soon fell or
was thrown through the broken glass of the
front door, mortally wounded by a_ pistol
shot in the breast, of which he died in a few
seconds.

Most of this evidence is denied by the Mar-
tins, but they, too, gave the jury their ver-
sion of this visit of the three men, and of all
the occurrences of the evening. It would
have been impossible to present the story of
the homicide to the jury so that they could
intelligently decide the issues of fact pre-
sented without this introduction, which ¢x-
plained the presence of the parties, showed
their conduct, and was part of the contin-
uous transaction which led up to and result-
ed in its unfortunate culmination. Indeed,
each of the accused and their codefendant
testified fully as to all of the events of the
evening. and added many picturesque details
thereto, This evidence was necessary, and
is therefore certainly proper. Beale’s Crim.

This criticism is quite unjustified. They fol-
low a long line of Virginia cases, and re-
ferred to the presumptions which arise from
the killing with a deadly weapon in the pre-
vious possession of the slayer. These ques-
tions have been so frequently considered and
the cases so often reviewed that extended
discussion is unnecessary. Hill’s Case, 2
Grat. (43 Va.) 595; Litton’s. Case, 101 Va.
833, 44 S. E. 923; Bryan v. Commonwealth,
131 Va. 714, 109 S. E. 477; Sims vy. Common-
wealth, 184 Va 752, 115 S. BE. 382; Mealy
y. Commonwea, 1, 135 Va. 585, 115 S. EB. 528,

[4] No presur:ption, however, relieves the
prosecution of the ultimate burden of show-

l|ing, upon the whole evidence, the guilt of

the accused beyond a reasonable doubt.

The instructions given for the common-
wealth recognizeu this rule, and in addition
the court gave cvery instruction offered for
the accused, eight in number, which fully
presented this and every other possible the-
ory of the defense, ind were quite as favor-
able to him as is justified by the evidence.

Although we have so frequently expressed
jour views, lest we be misunderstood, ,we
lmake these further observations as to in-
struction 3, given upon motion of the com-
monwealth:

Pi. & Pr. § 280.

[3] 3. The third assignment of error grows
out of the fact that the prosecuting attorney
was permitted to ask Farl Martin, while on
cross-examination, whether his wife had sold
whisky on previous 0¢
and to another. It was admitted only up

the ground that it was intended to test the
credibility of the witness who had contra-|

It reads:

| “That to constitute murder in the second de-
| gree the killing must have been done with
; malice, but not with premeditation, and it is
| not necessary that such malice should exist for

seasions to Hawkins! any particular length of time prior to the kill-
on} ing. It is only necessary that it should be present

|for the first time at the time of the killing.

| or at any time previous thereto, and, when the
killing is done with a deadly weapon, the law

dicted the testimony produced by the com: | presumes that it was done with riakices and

monwealth that she had sold whisky on the! j+ js for the accused to satisfy the minds of the

evening of the homicide. The court had pre-| jury that such killing was not done with mal-

viously expressly refused to allow the com-! ice.”

monwealth to introduce evidence of any for-|

mer sales, and had strictly limited the testi- | [5] While the precise language used in the

evening | last clause of this instruction, that is, “It is
Attor-| for the accused to satisfy the minds of the

neys for the commonwealth should refrain| jury that such killing was not done with
from asking such irrelevant questions which | malice,” has been expressly approved in
are designed to prejudice the accused before | Potts v. Commonwealth, 113 Va. 732, 73 8. EB.
the jury, because they should always vemneiae | 470, the appropriate and preferable language
ber whose commission they bear, and should) is that which was actually used in instruec-
scrupulously respect the rights of the ac) tion 5 in this case, covering substantially the
cused; still, under the peculiar facts of this, same point. Such an instruction relates to
case, we will not hold that it constitutes re-|/the presumption which arises from a homi-
versible error. The accused promptly denied | cide with a deadly weapon, and to the shift-
the imputation, and the prosecution was ing phases of the evidence, The use of the
bound by his answer, so there was no eyi-| Words “satisfy the minds of the Jury,” of
dence of the irrelevant fact which the ques-| “prove to the satisfaction of the jury,” comes
tion suggested. The liberty of the cross-) very near to committing the error which was
examiner is not entirely unrestricted, but as; condemned in the Potts Case, supra, and in
to sich questions much must be left to the) Covington” vy. Commonwealth, 136 Va. 672,

discretion of the trial judge 116 8. E. 462.

4. The fourth assignment relates to the, ‘The preferable language ts that, in order

six instructions which present the theory of | to elevate the offense to murder in the first
degree, the burden is upon the common:

the prosecution. They are complained of AS |
wealth, while to reduce the offense from mut

containing only_abstract propositions of law |
which were inapplicable to the evidence, | der in the second degree to manslaughter the

mony to the occurrences of that
immediately preceding the homicide.

empl gp igh Rik si

Va) SPENCER v. COMMONWEALTH 351

(129 S.E.)

lurden is upon the prisoner, but it is better
in immediate connection therewith to add
qualifying language equivalent to that used
in Litton’s Case, supra, that nevertheless,
when the evidence is all in, then, if the
evidence both for the commonwealth and the
accused leave a reasonable doubt as to the
sullt of the accused, the jury must find the
prisoner not guilty.”

This qualification was not only expressed
in instruction 6 given for the commonwealth,
hut was emphatically repeated in this in-
struction which was given for the accused:

“The court instructs the jury that the indict-
ment in this case does not raise the slightest
presumption of guilt against the accused, but,
on the contrary, he is presumed to be innocent
of wrongful acts, and that presumption contin-
ves and remains with the accused throughout
the trial and every stage thereof, and until the
fommonwealth has established by clear, dis-
tinet, and reliable evidence, and to the exclu-
sion of all reasonable doubt, every element es-
rentinl to the crime charged against the ac-
cused; and, failing in such proof, or if upon
the completion of the testimony a reasonable
‘oubt-as to the necessity of the killing exists
it would be your duty to acquit.” :

There is no reason to doubt that the jury
comprehended the issue of fact which the
eontlict in the evidence raised, nor. is there
“ny fair doubt of the correctness of their
eonclusion.

5 [8] Referring to the Nettie Martin case,
ttle need be added. <A different jury has

a und her guilty upon evidence substantially
similar, but she stood mute and offered no
rentradictory testimony. It is sufficient to
“upport the verdict, for it appears that she
had just quarreled with Hawkins; that
Psi intervened and prevented) Hawkins
ae Roe te her; that the three men had
eft the house after the threat to call

in the police; that immediately thereafter
when Amos returned on his peaceful errand,
® flerce fight, in which several were engaged,
“vurred in the hallway, as soon as he en-
tered, and this unarmed man was killed by
: bistol shot; that she at first denied all
nowledge of the shooting, and afterwards

Whe 2 the place where she, after the homi-
. ee hidden the pistol, and she produced
sei » bias absence of any explanation, the
st Sap justified in believing that she, still
aa 5 from the previous quarrel, was the
prow ieal p actively participated in the un-
rab : and unequal fight with Amos, the
‘a — doubtless thinking, because of the
wy that he was Hawkins, and that she
HH Pig nuiding and abetting the homi-
— not herself directly responsible for

Te enty use of the pistol.
ihestg Assignments of error, which were
Men with those assigned in the Farl

n Case, have been sufficiently discussed.

ov

that there was a presumption of law that she
acted under the coercion of her husband. and
that the burden to overcome that presump-
tion by allirmative evidence would be upon
the commonwealth, and this is assigned as
error,

This presumption never applied to the
crime of murder, and hence the court com-
mitted no error in refusing it. 15 R. CG. 1.
§ 278, p. 1241. A simitar question was raised
in the case of Brown vy. Commonwealth, 135
Va. 480, 115 S. I. 542, which was a misde-
meanor case, and it is unnecessary to repeat
the views there expressed.

For the reasons which we have indicated,
both judgments will be affirmed.

Affirmed.

SPENCER v. COMMONWEALTH.

(Supreme Court of Appeals of Virginia. Sept.
17, 1925.)

!. Criminal law €=>772(2)—Instruction defin-
ing offense in statutory language not errone-
ous.

Instruction defining murder in first and sec-
ond degree in very language of statute Aeld not
misleading or prejudicial error.

2. Criminal law @=>728(1), 919(3)—Proper
procedure on use of improper language by at-
torney in argument stated.

On use of improper language by attorney in
argument, proper procedure is to move court to
set aside verdict and grant accused a new trial
or to discharge jury and grant new trial. :

3. Criminal law 6=>1044—Failure to move for
discharge of Jury or to set aside verdict for
use of improper language by counsel will not
preclude reversal.

Failure of accused’s attorney to move to dis-
charge jury or to set aside verdict and grant
new trial on use of improper language by pros-
ecuting attorney in argument does not prevent
granting of new trial on appeal, if language
used was such as to be fairly calculated to im-
properly influence jury.

4. Criminal law €==919(3)—When new trial
3 gate for improper remarks of counsel stat-

New trial because of improper remarks or
argument of counsel fairly calculated to im-
properly influence jury may be granted where
court has failed or refused to properly check
such remarks or instruct thereon, or where
they are of such nature that they cannot be ad-
equately overcome by direction to jury to dis-
regard, : :

5. Criminal law €=730(1)—Courts may fine or
imprison counsel for persistent use of inflam-

matory and intemperate language.

: Trial courts, to protect themselves against

improper use of inflammatory, abusive extrava-

gant, and intemperate language by counsel may

fine offenders, or in aggravated cases and where

7
] The court refused to instruct the jury

offense is persistent, imprison them

>For other cases see same topic and KEY-NUM

{BER in all Key-Numbered Digests and Indexes

1 SUSONSTS

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WEDNESDAY, JANUARY 20, 1993 *

Richmond Times-Dispatch

SECTION B

OBITUARIES

esi ceeBZ
INSIDE VIRGINIA ...B4
WEATHER .........B14

METRO

BUSINESS

B7

A frail killer was carried to the chair )

BY REX SPRINGSTON
TIMES-DISPATCH STAFF WRITER

Charles Sylvester Stamper sat si-
lently as guards strapped him into
Virginia’s electric chair last night.
The killer looked worried, or scared.
The man with the Iongest tenure on
Virginia’s death row,'14 years, also
looked quite fragile.

Carried to the chair by guards —
one on each arm, and one holding the
seat of his pants — Stamper, who
= aap used a wheelchair, was led

across the death chamber to the oak
chair at 11:01 p.m.

His feet barely scraped the floor.

His legs and feet quivered, almost
as if he were undergoing a seizure, as
he was strapped in.

An electric wire, with brine-
soaked sponge attached to it to better
conduct power, was attached to
Stamper’s right ankle.

A metal cap, attached to: another
wire and also ‘containing a: soaked
sponge, was placed on his ‘head.’

A leather strap covered all of his

face except his chin.

The execution chamber, roughly
20 feet by 15 feet, was bright and
clinical. Light poured down from
fluorescent bulbs behind six translu-
cent panels in the acoustic ceiling
tiles.

In a room with walls of pale gray
cinder blocks, with two white metal
doors and a shiny gray tile floor,
splashes of color came from the
brown oak chair and a red “exit” sign
over one door.

The Rev. Russ -Ford, a chaplain, :

said Stamper wished “his death

would yield abundant fruit for all -

tragic victims ... This ritual bruises
and demeans humanity.”

At 11:05 p.m., the execution be-
gan. Stamper, who was slumped
against his straps, bolted upright.

His small hands made fists. ~

He received a 90-second jolt of

‘electricity. He slumped during a five-

second break and sat upright again
when the power came on for another
90 seconds.

A wisp of smoke rose from the

Rete eet eat

ankle electrode.
Nine witnesses watched behind
wire-mesh-enforced glass windows.

At about 11:08, the power stopped.

Five minutes later, a guard opened
Stamper’s shirt. A prison doctor in a
white lab coat entered and put a
stethoscope to Stamper’s chest.

The doctor uttered the standard
final line to Warden|Ellis Wright Jr.:

“Warden Wright, tie man has ex- .

pired.” ~
Now a curtain was drawn before

{

the windows, and the witnesses were
led out. :

Riding the prison van to his car, © a
witness Bob Justice, a Henrico Coun- ©
ty police lieutenant, called the execu-
tion “very uneventful.”

Rodney Brown, 27, a South Hill
mechanic, said, “It’s not a bad way to.

-go. I drive a wrecker and I've seen a ©

ae =

whole lot worse.” « 2% =|

Springston was one ay the nine wit

“nesses to the Stamper execution. ee.
¥


A21 SA !

THE NEW YORK TIMES NATIONAL THURSDAY, JANUARY 21, 1993

inth Suicide

n life by simply dropping his
nd thereby pulling a metal clip
tic tubing that connected a can-
f carbon monoxide to a mask
s face. The device had been built
Kevorkian.

Miller simply detached that'

m the plastic tubing, which al-
he carbon monoxide to flow into
sk,’’ Mr. Fieger said, adding
ad taken Mr. Miller 18 minutes

ieger said Mr. Miller’s fiancée,,
assistants of Dr. Kevorkian
en present. “His last words
love you all,’’’ Mr. Fieger said.

his repeated assistance to seri-
people who choose to kill them- :

selves, Dr. Kevorkian, a \ sqtived pathol-
ogist from Royal Oak, another Detroit
suburb, has spawned a national debate

over the ethics of physician-assisted
suicide. :

Previous efforts by local prosecutors
to bring murder charges against him
have failed in the courts, because until
recently Michigan had no law specifi-

last month, only hours after Dr. Kevor-
kian helped two women kill themselves
with carbon monoxide, Gov. John
Engler signed into law a measure that
will temporarily make suicide assist-
ance a felony. —

The law, which does not take effect
until March, will lapse 15 months later.
A commission created by the state will
use the intervening period to study the
issue and make recommendations.

‘7 MICRO. RECORDERS BY
US §-900 apes

Disabled Inmate Ts Electrocuted

JARRATT, Va., Jan. 20 (AP) — A
man who had used a wheelchair since
his spinal cord was injured in a prison

| brawl five years ago shuffled to the

‘jelectric chair Tuesday night with he
cally barring suicide assistance. But: : hme 'p

from guards at the Greensville Correc-
tional Center here and was put to death
for murdering three people in a holdup.

In a final statement read by the
prison chaplain, the 39-year-old con-
demned prisoner, Charles Stamper,
said his execution ‘bruised and de-
meaned humanity.”

Opponents of capital punishment had
contended that the execution was un-
necessary because, as a result of his
handicap, Mr. Stamper was no longer a

danger to society. But some advocates
for the disabled argued that he was
entitled to no special consideration.
His lawyers contended not only that
Mr. Stamper was no longer a danger
but also that there was insufficient
proof that he had committed the mur-
ders. But earlier Tuesday a Federal
district court, a Federal appeals court
and the United States Supreme Court
all turned down his last-ditch appeals.

A Request te Walk to Death

Mr. Stamper, convicted of killing
three co-workers in 1978 at a suburban
Richmond restaurant, where he was a
cook, had asked for permission to walk

05.000 ITEMS TO

WIDE CLARA SALE!

to the electric chair in leg beaces and 2
with a waiker. ‘He maintains a sense 3 i
of dignity even under these circum- |
stances,” Dennis W. Dohnal, one of his '
lawyers, said on Monday. “‘He is a very.
proud person.”

That request ‘by Mr. Stamper was ;1i
denied, although Wayne Brown, prisgn | ow
operations officer, would not say why. !,>

Mr. Brown said prison guards had! ;; as
held Mr. Stamper by the shoulders and | 4, ;.,,
helped him walk 15 feet to the electric...
chair. The prisoner’s feet were drag- : a2imn
ging on the floor as he was brought to - ie 45
the chair, and one leg shook as he was. A
strapped in.

Leigh Dingerson, director of the Na- et
tional Coalition to Abolish the Death °°*~
Penalty, said no other wheelchair user’ “! ‘'®
had been executed in the United States! °! “4
since the Supreme Court ruled in 1976 27 _
that capital punishment could resume... °°?

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Charles S, Stamper was executed , > Syysnoyy UFIM YOM oft” :
i last night after being carried into the °; 38499 oyo7T e wysnoqn:
¢ ee death chamber by his arms and the | : :
‘iI nq ‘Mo HSV
# pan seat of his pants, feet dragging, in one Ae om :
of the most unusual executions in A
recent United States history. | [UO JL @
Stamper, who used a wheelchair 5

after being injured in a fight with 4
other inmates, was the first severely : a
disab ed person to be executed since C] Us | I ve

the reimposition of the death penalty

in 1976, i

The slayer of three co-workers in ear eee
@ a 1978 robbery of the Henrico res- INFINFARIHOn-
ol taurant where he worked, Stamper BP FAA
= was killed last night by two jolts of mn a
* electricity in the death chamber at vas |
5 the Greensville Correctional Center. :
Ely & He, had asked to hobble the last’ «

leg braces and a walker,

. His lawyer, Dennis W. Dohnal,

said Stamper made the request inan
oe effort to Salvage some dignity.

€ wasn't allowed to use a Walker |
or wheelchair, but members of the -
death squad held his arms and one
grabbed the seat of his pants, and
they walked him to the chair and then
helped him sit in it. Witnesses said
aks a

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f Cra hy MOKEN ( Y |


A12 Wodnoaday, January 20, 1993 ® Richmond Times-Dispatch —$$

Stamper dies

in electric chair;,
appeals ran out
Was convicted in 197 8 slayings of 3)

VY STAMPER FROM PAGE Al

uncontrollably after he was strapped
in. He was pronounced dead at 11:15

p.m.

He was the 254th person put to
death in Virginia’s electric chair
since 1908, the 18th since the reim-
position of the death penalty, and the
seventh to be executed at the at the
Greensville Cor-
rectional Center
since the chair
was moved here
from the old state
penitentiary in
1991.

Stamper, a for-
mer Shoney’s
restaurant break-
fast cook, ate a fi-
nal meal of

and french fries.
A last round of appeals ended at
about 9:30 last night when the U.S.

Supreme Court denied two requests--

for stays of execution.

But in an unusual twist, U.S. Dis-
trict Court Judge Robert R. Merhige
Jr. was reversed yesterday by a fed-
eral appeals court and told there
would be no independent expert on
hand during Stamper’s autopsy.

Not only did the 4th U.S. Circuit
Court of Appeals reverse Merhige’s
order without hearing arguments
from either side, it also threw out the
underlying suit — a death-row in-
mates’ class-action challenge to the
use of the electric chair as a form of
cruel and unusual punishment.

Just last month the appeals court

reversed Merhige’s order, stemming
from the same suit, that would have
required the videotaping of the exe-
cution of Timothy Dale ‘Bunch.

Death penalty challenge to be heard

‘Another constitutional challenge
to the death penalty will be heard in
Loudoun County Circuit Court next
month in connection with a capital
murder case there.

Stamper, 39, has been on death
row longer than any other Virginia
inmate. He outlived the judge who
sentenced him and the man who
prosecuted him, former Henrico
Commonwealth’s Attorney H. Albert
Nance Jr.

He has two brothers and a sister.
His mother, Eva, has declined to
comment. Family members spent

much of yesterday visiting with him”

at the Greensville Correctional Cen-’
ter. :

For the family of one of Stamper’s '

victims, last night’s execution put the
matter to rest. -
‘Every day something comes up

Stamper shrimp, lobster’

about the situation,” said Janice

Johnson, daughter of Agnes Hicks, a ~

co-worker Stamper was convicted of
killing 15 years ago. “After today it
will finally be over.”

Ms. Johnson; Judy: Stargell, Ms.
Hicks’ daughter-in-law; and Clyde
Via, Mrs. Hicks’ brother, braved the
freezing temperatures to honor the

- memory of their relative.

“We felt like we owed it to her to
be here,” Ms. Stargell said.

“I think it’s a shame [the execu-

tion’s] taken this long,” Via said.

The crowd gathered outside the
prison gates was sparse last night,
Six death penalty opponents drove to
Jarratt after attending a church serv-
ice in Richmond. A small group: of
Greensville County High School stu-
dents working on a project came to
talk to those assembled.

Stamper was convicted on circum-
stantial evidence of killing three co-
workers with a .22-caliber handgun
during an early morning robbery on
March 25, 1978.

Those killed in addition to Mrs.
Hicks were Steven Staples and
Franklin Cooley.

An audit showed $4,000 was miss-
ing from the restaurant safe. Stamp-
er’s wife testified he was at home at
the time of the robbery. He also
steadfastly denied his guilt.

Keys and gun were found

But he was convicted with evi-
dence including that included Sta-
ples’ car keys and the gun believed to

have been used in the murders —

which were discovered near Stamp-
er’s parents’ home.

Dohnal asked Gov. L. Douglas
Wilder for clemency for Stamper, ar-
guing, in part, that since he was a
virtual paraplegic he was no longer a
threat to society.

Wilder stayed Stamper’s execution
in October so he could evaluate the
case and the condemned man’s medi-
cal condition, then rescheduled the
execution earlier this month.

‘Merhige had said he “fails to see
how [having a neuropathologist to
watch Stamper’s autopsy and collect
a brain tissue sample for study] can
possibly interfere with the [state’s]
routine or plan concerning the sched-

 wled execution.”

But upon appeal by the Virginia
attorney general’s office late yester-

- day, Judge H. Emory Widener Jr.

concluded that “we are of the opinion

‘that the basic premise in the underly-.
‘ing case ....is entirely without mer-

it” and reversed Merhige.

Staff writer Pamela Stallsmith con-
tributed to this report.

I

Fe OE el

naa eS

|

Sy


- means he is no longer a danger to

_ js irrelevant.

‘ asked prison officials for permis-

~ had not decided whether to grant

‘ Monday from a ederal court af-

Man rejects wheelchair
on way to electric chair

- > RICHMOND, Va: (AP) — A dis-
abled inmate’scheduled to be exe-
cuted tonight wants to abandon
his wheelchair and walk to the
electric chair if his appeals fail.
Death penalty opponents said
Charles Stamper shouldn’t be put
to death because the prison inju-
ry that put him in a wheelchair

society. Many disabled people,
however, argued that the injury

Stamper, 39, has said he can
shuffle only a short distance
without the wheelchair, but he

sion to walk the last few feet to
the electric chair with the help of
leg braces and a walker.

One of Stamper’s lawyers, Den-
nis Dohnal, said prison officials

Stamper’s request.
The lawyers requested a stay

ter the Virginia Supreme Court
refused to delay the execution. ©
If ‘Stamper is’ executed, he
could be the first inmate taken to
the electric chair in a wheelchair
since the U.S. Supreme Court al-
lowed the resumption of capital
punishment in 1976, said Leigh
Dingerson, director of the Nation-

al Coalition to Abolish the Death

Penalty.

Stamper. Last week;
scheduled the execttio
Death penalty foes ha’
that Stamper is to incapacitated
to og: threat to’ ie
“When Charles‘Stamper w
convicted, the Be ° Pesca ne
would be a futuré d
Julie McConnell, assoc
tor of the Americ
ties Union of Virgi
he is paralyzed, it’s
he could still be a:

advocates disagreed.
drick, who has lobbied
on disability. issu
wheelchair for’ more.
years, said she told‘Wilder: ‘The
fact. he’s in a wheelchair, I

give a ‘damn. If he’ killed he

killed. You do it); you pay the

price.”

TUESDAY

JAN.19, 1998%¢ 3
‘San Jose Mercury News


}

the courts or Gov. L. Douglas Wilder, move short distances with the help o ;
|. Charles. S. Stamper, a former. chef ._.a,walker,.n asked to, walk. tothe a t
|” convicted of ‘murdering three co-,. chair instea PéPusing a wheelchair ‘
| -workers during the robbery of aHen-' .? Stamper had abandoned legal ef- é
| “Fico restaurant in 1978,.,will die tor © forts to avoid execution and instead ;
‘| night in the: electric chair. .°2*, “pursued a clemency appeal to Wilder,
+ Stamper, 39, was cri pled in a fight.’ asking his life be spared because of
: with death row inmates'in 1988, and * his partial paralysis. An expert who ;
if electrocuted he will be the first’ “examined Stamper said his condition :
inmate who uses a wheelchair to be _ left him so incapacitated that he was "
executed in the United States since no longer a danger to society. ;
~ the reimposition of the death penalty “Wilder stayed the execution in or- -
' in 1976. ©. der to study Stamper’s medical con-
- He would be the 18th person todie dition. Stamper was to have been .

ond Jimes= Dispatch

tw r

Teta! | bye ot bb se
¥. poke .
Ye a3d.a¥
we YN yop ied
Lee Bibi,

CTT Res silive
i ONY
R

F Stamper’s last appeal filed yesterday; |

Virginia Supreme

BY FRANK GREEN

— R 1; ;
-TIMES-DISPATCH STAFF WRITE peace with himself.

Without eleventh-hour action by

in Virginia’s electric chair since
1982. The chair is now at the
Greensville Correctional Center. An

appeal was rejected yesterday bythe esume his legal appeals in order to
Virginia Supreme Court. Another accure his

_ was filed in U.S. District Court late possible was being done to spare his
yesterday. sey . | . a
Stamper has declined interviews

in recent days, but his lawyer, Den-

executed on | 28, b
stay delayed it until today.
Dohnal said Stamper decided t

PLEASE SEE STAMPER, PAGE BS >

eee

Oct. 28, but Wilder's

family that everything —

re} ¥ nig
Fie in 4 :
UPxsaree ~

a iu } oy & 3 i ss ne 4 oo sy. es
3 Fi : %
fuss See at ‘
a € & 4 .
pe Sree & | fe?
' ed: #f et v
- byes rr
o wt Sut eae!
Pa eta ye
. SENET. ie
r . 2

deat
,

, no control.

-V STAMPER FROM PAGE B1
eae 3
Lloyd Stamper has
| brother at Greensville frequently and
"said last week that “‘he still maintains

feels he’s in a situation where he has

®
“l’'m against the death penalty in
general. I’ve always felt that prison
‘was to rehabilitate inmates. To me,
the death penalty does more harm to

eee

visited his’

his innocence and. believe, with all _
my heart, that he is innocent. He just ~

tamper execution

cheduled tonight _

the families than it does to inmates.

“My mother [Eva Stamper] is go-
ing through a lot right now because of
what’s going on.

“The only. thing that I can see that
it does is give politicians and judges
the right to play God.”

Loyd Stamper.complained that his .

brother was convicted on circum-—~—~

stantial evidence, though his convic-
tions have stood up in a series of
appeals over the years in state and
federal courts. .

“T’m concerned. I thought the law
dealt in hard facts. I don’t understand
how the state of Virginia, or any
state, can send someone to the elec-
tric chair when they don’t know if the
gun [found near the Stamper home],
is the murder weapon.”

A gun that was believed to have
been the murder weapon — but
which could not be positively identi-.
fied as such — was discovered near

- the home of Stamper’s parents.

“Tt seems like to me, the whole
case revolves around could-bes or
maybes,” Lloyd Stamper said.

wg

—_——$—


Richmond Times-Dispatch

~ Ties-DIsPATCH STAFF W

An additional stay

te A

ye ey

ner ale Tat
¥

| Charles S._

Stamper, who on.Tuesday could take condition. Stam ie eyes . t fc Ps.

amper, WO Ont Uescay.coue rene mn. amper's lawyers “con-_ S O

eeeere unprecedented ride;tothe: tend Stamper is too incapacitated to. Ou , ] aa 7 am er
electric chair in a-wheelchair, was. bea threat to society’.

requested ‘yesterday by: lawyers ‘at: In another. 7 SE ce rt

tempting to prove electrocution is” 7 %
cruel and unusual punishment.
- Tt is the latest development in the

= ) ec Senet eS plaintiffs in the federal case.

~ firms offMcGuire, Woods, Battle & . ¥: STAMPER FROM PAGE B1 They asked that the execution be
; Plad: vit stayed until the matter of whether

ig cruel’ and unusual punishment. execution is a cruel and unusual form

However, the move was blockedbya of execution can be decided.

who sentenced him to, deat
‘A spokesman for Virginia

ms

General Mary Sue:T av aad yester- :
day the state will fight:the stay re-

quest. A hearing has been tentatively
scheduled for tomorrow before US.

"PLEASE SEE STAY, PAGE B3 >

rs

federal appeals court and the Bunch _ Dennis W. Dohnal, Stamper’s law- ~ |~-
execution proceeded without ‘being ©
“recorded.

‘On Saturday Wilder, without com-
menting on Stamper’s medical condi-
tion, lifted his stay of execution.

“However, Merhige certified the
Poyner case as a class action case on
behalf of all Virginia death row in-
mates. The state has requested Mer-

(  hige “to decertify the class.”

Yesterday the lawyers asked that
Stamper not be executed by the state
as scheduled Tuesday because, as a
member of the class, he is one of the

“yer, said yesterday that his client did

not object to the request for a stay.
Dohnal said that any further appeals
Stamper might initiate are still to be
considered.

According to capital punishment
opponents, Stamper’s could be the
first execution in recent U.S. history
of someone who uses a wheelchair.

The 39-year-old also wears leg
braces and takes medication. He said
in October that he can use only two
fingers, and can shuffle just 15 feet at
a time without the wheelchair.


——————

a RE

the State of Virginia tonight for mur-
dering three workers at a restaurant
where he was a short-order cook.
Charles. Stamper, 39 years old, was
pronounced dead at 11:15, P.M. at the
Greensville Correctional Center here,
said Wayne Brown, the prison’s opera-
tions officer: +
Mr. Brown,said prison guards had
held the inmate by the shoulders and

The man, who began’ using a wheel-
chair after his spinal cord was injured
in a. 1988 fight with other inmates, had

-|own.

cution longer.than any other Virginia
inmate. . + Wee eo
Final Appeals Rejected .

judge, the United States Court of Ap-
peals for the Fourth Circuit and ‘the
Supreme Court had refused to halt the

execution. = =

Virginia Executes a Disabled Inmate

JARRATT,. Va., Jan..19 (AP) — A.
disabled inmate. was electrocuted by’

_|helped him walk to the electric chair..

Lawyers for the inmate had argued
there was not sufficient evidence to
prove that he had been the one who:
pulled the trigger in the murders.

Relatives of the victims, as well as.
opponents of the death penalty, waited
outside the prison as the time for the
execution neared.

“I think it’s a shame it took 14 years:

| to do it,” said Clyde Vie, whose sister|
{

Agnes Hicks was murdered. |
~ Visit From Family |

Mr, Brown said members of Mr.
Stamper’s family had come to the pris-

| on in the morning to visit him.
asked to use leg braces and a walker so |» =:
he could take the last'few steps on his:

- ys | workers were robbed and shot. in
Mr. Stamper had been awaiting exe-. wor

° "The inmate was’a cook at a restau-.
rant in a Richmond suburb. Three’

March 1978 as they prepared for busi-
ness. . ae

*.| Opponents of the death penalty had
7 aetna argued that the inmate should not be
Earlier today, a Federal _ district.

put to death because his disability no

longer made him a threat to society.
“The minute we begin to execute

people like Stamper, I wonder if we’re

not crossing the line into something

other than the society we’d like to be,”
said Dennis W. Dohnal, a lawyer for
Mr. Stamper.

Some advocates for the disabled dis-
agreed.

“If he killed, he killed,’’ said. Peggy
Bendrick, a wheelchair user who lob-
bies the General Assembly on disabili-
ty issues. “You do it, you pay the

price.”’

Leigh Dingerson, director of the Na-'
| tional. Coalition to Abolish the Death

Penalty, said no one in a wheelchair
had, been. executed since the Supreme
Court allowed the resumption of: capi-

|tal punishment in 1976. Mr. Stamper

was the 190th person executed since
then. .

The execution had originally been
scheduled for Oct. 28, but was post-
poned by Gov. L. Douglas Wilder after
he was asked to grant clemency. Mr.
Wilder had independent doctors evalu-
ate the man’s condition and lifted the
stay last week, saying he had. to consid-
er the crime itself, not just the issue of
the danger Mr. Stamper might pose to
society. Fee

WEDNESDAY, JANUARY. 20; 1993


| NATION DATELINES

| Virginia executes
-| disabled inmate
JARRATT, VA. A disabled death-row

inmate was executed in Virginia’s elec-
tric chair Tuesday night for the slayings

| -of three workers at the restaurant where

‘he was a short-order cook.
Charles Stamper, 39, was pro-

nounced dead at 11:15 p.m. (8:15 p.m.

PST) at. Greensville Correctional Cen-
ter, said Wayne Brown, the prison’ 8 Op-

erations officer.

Stamper was on death row psctah

chan any other Virginia inmate. He had .

used a wheelchair since his spinal cord
was injured in a 1988 fight with other

_ inmates.

Stamper was a cook at a qubuthes ‘

| Richmond restaurant where three co-
workers were robbed and shot in March
| 1978 as they prepared to open for busi- ——

-ness. He was convicted of the murders. e

ea a -_.

SAN FRANCISCO EXAMINER

es
* 4 7 “
2. < 5
iy < .
ts ”

- take the last few

[x R}

Wednesday afternoon

JANUARY 20, 1993 |

LATE PORTS 0 8

EDITION

THIRTY-FIVE CENTS.

"Guards help disabled man
to the electric chair

JARRATT, Va. (AP) — A disa-
bled death-row inmate was exe-
cuted in Virginia’s electric chair
Tuesday night for the 1978 slay-
ings of three workers at the res-
taurant where he was a short-or-
der cook. °

Charles Stamper 39, “was pro-
nounced dead at 11: 15 p.m. at
Greensville Correctional Center,
said Wayne Brown, the prison’s
operations officer.

Brown‘said. ‘prison guards held
Stamper: by the”
shoulders’ “and
hetped him walk
to the electric |
chair. Stamper .f
had requested ‘to:
use leg. braces.
and a walker so
that he could:

steps on his own. ‘gtamper
Stamper was
on death row longer than any

' other Virginia inmate: He had

used a wheelchair since his spinal
cord was injured in a 1988 fight
with other inmates.

Request denied

Earlier Tuesday, U.S. District
Judge James Spencer and the 4th

_US. Circuit Court of Appeals had

refused to halt. the execution. The
U.S. Supreme Court denied the -—
ee without comment at 9:25

p. m,
Defense attorneys had argued
there was insufficient evidence to
prove Stamper was the killer.
Victims’ relatives as well as
death penalty opponents waited
outside the prison as the execu-
tion approached. Brown said
members of Stamper’ s family ar-

rived at the prison Tuesday

morning to visit.the inmate.

Death-penalty opponents ar-
~ gued that Stamper should not be
put to death because his disabili-
ty made him no longer a threat to
society.

“The minute we begin to exe-
cute people like Stamper, I. won-
der if we're not crossing the line
into something other than the so-
ciety we'd like to be,”’ said Dennis
Dohnal, an attorney for Stamper.

Some advocates for the disa-
bled disagreed.
“You pay the price’

“If he killed, he killed,” said
Peggy Bendrick, a wheelchair
user who lobbies the General As-

sembly on disability issues. “You
do it, you pay the price.”

Leigh Dingerson, director of
the National Coalition to Abolish

the Death Penalty, said no one in

a wheelchair -has been executed
since the Supreme Court allowed
the resumption of capital punish-

ment in 1976.
ob. CORE

2

San Jose Mercury News © Washington/National ¢ Wednesday, January 20, 1993


a

waseeren POST

-JARRATT, Va. — Triple’ mur- :
derer Charles Sylvester Stamp

er, who” used a wheelchair: after...
being injured in a prison fight,

was executed in Virginia’s’eléc-»

tric chair Tuesday ‘night after

losing a series of appeals, the last .
to the U.S. Supreme Court. °° |

Stamper, 39, was pronounced
dead at 11:15 p.m. He was the
first severely disabled convict
put to death in the United States

since capital punishment .was_.

restored in 1976.
Two corrections officers sup-

ported Stamper i inan in upright po-

sition as She nie his way to the.
electric ‘chair, ‘according toa.
prison official. Se

‘He had asked for permission to ;
.take: the:last-few. steps by -him-

self, using. leg braces and a walk-
er: In an‘interiew several months
ago, he said, ‘Put me in sight of
it, andI’ll make it there. I won’t
make them carry me.”’ Prison of-
ficials did. not elaborate on why
they chose to have officers sup-
port Stamper. |

Convicted of killing three
workers in a March 1978 rob-
bery at a Shoney's restaurant in
Richmond, Stamper suffered se-

vere spinal cord damage in a

fight while in prison and was
partly paralyzed. He had been on
Virginia's death row longer than
any other inmate. —

The U:S: Supreme Court re-

jected without comment Stam-

Tuesday night.

Earlier today, U.S. District
Judge James R. Spencer in Rich-
mond refused to halt the execu-
tion; and his ruling was upheld
by a three-member panel of the
4th U.S. Circuit Court of
Appeals.

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FRIEND: OFF STH. D PEOPLE It SERVES -

have been found guilty of a capi-
tal crime. In rejecting the motion,

* the appeals panel wrote that he

per’s final appeal at 9:25.

was simply ‘‘recasting’’ old
arguments.

Stamper’s case once again
drew national attention to Vir-

. ginia, which has executed more
_ murderers than all but three
states since 1976.

The appeals focused not on -

Stamper’s disability, but on his
contention that he should not

None of the 189 people execut-
ed nationwide in the last 17
years was severely disabled like
Stamper.

Opponents of the death penal-
ty have criticized the Stamper

caseasbarbaric. ~~
LAE


NATION

ve

rhige
: ee

last

a

Agociated Press .

“RICHMOND, Va. — A disabled
inmate scheduled to be executed
tonight planned to ‘abandon his
wheelchair and walk to the elec-
tric chair if his final appeals
failed.

Death ‘penalty opponents said
Charles Stamper shouldn’t be exe-
cuted because the prison injury
that put him in a wheelchair
means he is no longer a danger to
society. Many. disabled people,
however, said a wheelchair is no
excuse for a crime.

Stamper, 39, has said he can
shuffle-only a short distance with-
out the wheelchair, but he asked
prison officials for permission to
walk the last few feet to the elec-
tric chair with the help of leg brac-
es and a walker.

“He maintains a sense of dignity
even under these circumstances,”
said Stamper’s lawyer, Dennis W.
Dohnal. “He is a very proud per-
son.”

‘Dohnal. said prison officials had
not: decided. ‘whether to Brant
Stamper’s request...

Stamper’s. lawyers. requested a

| stay of execution’ ‘Monday from —

federal court after the Virginia

‘

_

“AG The Sacramento Bee Final @ Tuesday, Januar

Supreme Court refused to delay
the execution.

If Stamper is executed, he could
be the first inmate taken to the
electric chair in a wheelchair
since the U.S. Supreme Court al-
lowed’ the: resumption of ‘capital
punishment in 1976, said Leigh
Dingerson of .the National Coali-
tion to Abolish the Death Penalty.

“This execution will be a specta-

cle even those in favor of the
death penalty will not soon for-
get,” Dohnal said.
- Stamper, sentenced to death for
the 1978 murders of three restau-
rant workers during a robbery,
suffered a spinal cord injury in a
death row brawl five years ago.

Stamper’s execution originally
was set for Oct. 28. His attorneys
asked Gov. L. Douglas Wilder to
grant clemency, saying Stamper
no longer was a threat to society.

‘Wilder postponed the execution
while doctors evaluated Stamper’s
condition. Some ‘inmates have
suggested that Stamper was fak-
ing his injuries. Last week, Wilder
lifted the stay and. rescheduled
the execution for tonight.

“We. submitted irrefutable evi-

dence he is a virtual paraplegic,”
‘Dohnal said.

But Wilder told reporters that

-

Disabled inmate plans to walk
few steps to electric chair

his pedioal team found that
Stamper’ s injuries were not as se-

- vere as he had been led to believe.

“They're not suggesting he’s

faking his injuries,” Wilder said. ©

“They did not find he’s a paraple-
gic, and he does have use: of his
limbs with assistance.”

But death penalty opponents
said Stamper is too incapacitated
to be a threat to society.

“When Charles Stamper was
convicted, the jurors decided he
would be a future danger,” said
Julie McConnell, associate direc- .
tor of the American Civil Liberties
Union of Virginia. “Now that he is
paralyzed, it’s hard to argue he
could still be a future danger.”

Wilder said he had to consider
the crime itself, not just future

danger. .

Many disabled people and advo-
cates for people with disabilities
also disagreed with the disability
argument.

“T don’t think being in a wheel-
chair makes you any less respon-
sible for your actions,” said Gary
Melton, a paraplegic.

Melton shot and killed a man
who tried to rob him at knifepoint
last year. The shooting was
deemed justifiable and no changes
were filed.

y 19, 1993


!

_METRO |

Obituaries 2
Lifestyles 6 |
Television 8
Entertainment 9

Wednesday, August 21,1991 —

Richmond Times-Bispatch

Capital verdict upheld; one appeal pending -

Stamper arguments denied Execution set for tomorrow

By Joseph Williams
Times-Dispatch staff writer

A federal appeals court yesterday
upheld the capital murder convic-
tion of Charles S. Stamper, who
killed three people during a robbery
pa Henrico County restaurant in

A three-judge panel of the 4th U.S.
Circuit Court of Appeals rejected ar-
guments that Stamper’s trial lawyer
was incompetent and that the cir-
cumstantial evidence against him
wasn’t enough for a conviction.

The evidence against Stamper
“sufficiently supports inferences

upon which a rational trier of fact -

could render.a verdict of guilt be-
yond a reasonable doubt,” according
to an opinion issued yesterday.
Stamper, a former cook, was sen-
tenced to die for the March’ 1978

..-fnurder of three co-workers in the
y Shoney’s Family Restaurant at 7708
4; Staples Mill Road. Stamper, 38, was
~fonv.

icted of three comnts of capital

murder for fatally shooting Agnes
Hicks; a waitress; Franklin D. Coo-
ley, a custodian; and Steven Lee Sta-
ples, the night manager.

Evidence introduced at the trial
showed the victims apparently knew
Stamper and let him in as they pre-

ared to open the restaurant shortly
fore dawn. It showed that Stamper
forced Staples to open the safe, took

‘about $4,000, then opened fire.

Witnesses testified they saw a car
resembling Stamper’s entering, then
leaving the restaurant parking lot
about the time of the murders. Po-
lice found one victim’s car keys and
a pistol in the woods near Stamper’s
parents’ home; bullets and spent car-
tridges in the gun matched slugs re-
moved from the victims.

Shortly after the slayings, Stamp-
er cleared several overdue debts,
made a down payment ona $120
watch and negotiated to buy a used
car.

In November 1978, a Henrico jury

convicted Stamper of three counts of

‘capital murder and sentenced him to

death.

Stamper, who has logged more
time on death row than any other
state inmate, is partially paralyzed
as a result of a 1988 beating by two
other inmates. -

Stamper’s appeal centered on the
fact that the evidence presented
against him was entirely circum-
stantial. There were no witnesses to
the shooting, none of Stamper’s fin-
gerprints was found at the scene.

But the appellate.court ruled that
the evidence presented — and the
inferences the prosecution made to
the jury — was properly considered
by the jury.

Stamper also argued that the trial
lawyers used improper tactics and
failed to properly object when the
court excused four prospective ju-
rors because they said they couldn’t
impose the death penalty.

By Mike Allen :
Times-Dispatch staff writer

Lawyers for a man scheduled to be
electrocuted tomorrow claim in a
last-minute appeal that his mother is
a drug dealer who beat him, en-
snared him in her business, then pre-
vented him from fully defending
himself in court.

The document, filed yesterday
with the Virginia Supreme Court,
says that Derick L. Peterson’s exe-
cution should be delayed until a
court decides whether he was sen-
tenced unconstitutionally.

The appeal blames his predica-
ment on his mother, Eloise Peterson
of Hampton, who made a tearful
plea for her son’s life at a news
conference at the State Capitol on
Monday. ly

“Eloise was the source of [Peter-
son’s] problems from the cradle to
his capital trial,” says the 97-page
petition, filed by Richmond lawyer

Gerald T. Zerkin. -

The filing lists eight drug- and al-
cohol-related charges against Ms.
Peterson but doesn’t say whether she
was convicted on any of them.

Ms. Peterson did not immediately
return a message left with her
granddaughter. At her news confer-

ence, she said she had her son when ©

she was 16.

“I don’t believe Derick had a fair
chance,” she said. “Growing up...
was very hard for him because I was
growing up with him.”

Peterson, 30, was convicted of rob-
bing and shooting a Hampton gro-
cery-store manager to death in 1982.
Two years later, Peterson was one of
six inmates who escaped from Death
Row at Mecklenburg Correctional
Center.

“His lawyers have asked Gov. L.

Douglas Wilder to change the sen-
tence to life in prison. They claim
that juries rarely impose the death

penalty for single-shot killings.
The request was being considered
last night, a Wilder spokesman said.

Zerkin said in yesterday’s filing
that Peterson has brain damage and
was mentally disabled when he was
tried. : x
The appeal says that Peterson’s
former lawyer had a conflict of in-
terest because he also represented
Ms. Peterson on many criminal
charges and so could not ethically
—— evidence that she corrupted

“She narcotized him in her womb,
she narcotized him in his crib, she
narcotized him in his school and then
she made him into her employee. She
beat him, she neglected him, and she
doped him,” the document says.

“The jury that convicted Derick ©
Peterson and sentenced him to death -
knew virtually nothing about his his-
tory and background.” é


Vv STOCKTON FROM PAGE B1

behind Texas and Florida.

His lawyers, Anthony King of
Washington and Steven Rosenfield of
Charlottesville, appeared outside the
prison after the execution.

“There’s no doubt in my mind that
they got the wrong man,” said Ro-
senfield. “I found the process barbar-
ic, ghoulish.”

He said, ‘It’s hard to understand
why the state was in such a hurry” to
Carry out the execution despite re-
cently discovered evidence that Ro-
senfield said showed Stockton’s in-
nocence.

King said he and Rosenfield be-
lieved “Dennis Stockton never re-
ceived a fair trial.”

The key witness against Stockton,
Gary G. Bowman, testified in 1983
that he heard Stockton agree to kill
Arnder for $1,500.

On Monday, Stockton’s execution
was stayed for 60 days by a federal
judge after affidavits were produced
alleging Bowman killed Arnder. But
the execution was put back on sched-
ule Tuesday by the U.S. 4th Circuit
Court of Appeals.

His lawyers then appealed to the
U.S. Supreme Court, which turned
them down late yesterday.

The affidavits from Bowman’s son,
ex-wife and former girlfriend said
that Bowman had confessed to them
that he killed Arnder.

Stockton was in the death house at
the Greensville Correctional Center
last week with Lem Tuggle Jr., a man
he had known since 1984 when Tug-
gle and five other inmates escaped
death row. The other five have all
since been executed.

Reached by telephone last Friday,
Stockton said “Yes, I regret not es-
caping” with them. “The reason I
didn’t was because of what I had done
when I wrote that letter to the assist-
ant warden” warning of the escape.

He said the night of the escape
“Tuggle and Derrick Peterson both
come by my cell and said ‘we got
plenty of uniforms, man, come on and
go on with us.’”’

“I didn’t go for the simple reason
that I had written that letter that they
did not know about,” said Stockton.

Tuggle was set to die last Thurs-
day, the first of nine inmates with
execution dates set between then
and thesfend of the year.

Stockton and condemned inmate
Herman Barnes had been moved
from their holding cells in the death
house to another part of the prison.

“T understand that that’s standard
procedure if an execution is going to
go through. They’ll move all but the
one that’s going to be executed out”
of the three cells near the execution
chamber, said Stockton.

It was around noon last Thursday
that Stockton said he was told he
would be moved back to the cells
near the execution chamber. The
news was welcome, he said. “Just by
telling me that, they were telling me
that Tug got stayed.”

Amnesty International USA asked
Gov. George Allen to grant Stockton
clemency and used its plea to argue
for an end to Virginia’s so-called ‘21 -
day rule” which prohibits evidence
discovered more than 21 days from
sentencing to be heard in court.

Jodi Longo, director of the Mid-
Atlantic Region of AIUSA said ‘‘the
state of Virginia is noticeably reluc-
tant to concede that the criminal jus-
tice system is liable to human error.”

Staff writer Bob Piazza contributed
to this report.

\

Fimes- Dispt”

peals

Richmeud

court

uts execution
ack on track

Last-minute affidavits all too common
in cases such as Stocktons, justices say

Hed G- 27-95

FRANK GREEN
TIMES-DISPATCH STAFF WRITER

Dennis W. Stockton’s execution —
stayed for 60 days by a federal judge
Monday — was put back on schedule
for 9 p.m. today by a federal appeals
court in a tersely written, four-page
ruling last night.

“This petition comes to us very
late in the day. It has now been
twelve years since Stockton was con-
victed by a jury of the capital murder
of 18-year-old Kenneth Arnder,”
wrote a three-judge panel of the ap-
peals court.

USS. District Judge Jackson Kiser
had issued Monday’s stay to allow a
hearing on affidavits that Randy G.
Bowman, the key witness against
Stockton, confessed that he commit-
ted the 1978 slaying.

But the appeals court judges wrote
that “this last-minute attempt to rep-
licate a state trial setting through
affidavits and federal evidentiary
hearings twelve years after the fact
of conviction bears little relationship
to the orderly and deliberate manner
in which justice should proceed.”

Stockton’s evidence that someone
else committed the crime “reflects a
formula for eleventh-hour relief that
is increasingly common in capital
cases,” they said.

The appeals court judges conclud-
ed by reversing Kiser and reinstating
Stockton’s execution date set by the
state.

Stockton’s lawyers, could not be
reached for comment on the ruling
last night, but they are expected to
appeal it to the U.S. Supreme Court.

Arnder was shot in the back of the
head and his hands were cut off. He
was killed in Patrick County and his
body was dumped near Mount Airy,
N.C.

heard Stockton agree to kill Arnder
for $1,500.

But according to Stockton’s peti-
tion to Kiser, Kathy Carreon, a friend
of Bowman’s, said Bowman told her
that he killed Arnder with the new of
two friends.

Bowman’s ex-wife, Patricia
McHone, said Bowman twice con-
fessed to her that he had killed
Arnder.

And “Bowman’s own son, Timothy |
Crabtree, has sworn under oath that”
Bowman admitted to him that he had |

killed more than one person,” argued
Stockton’s lawyers in their petition
to Kiser.

Stockton, reached by telephone at
the Greensville Correctional Center

yesterday before the appeals court |

ruling, said that even if Bowman had
not confessed, Bowman has changed
his story about Stockton’s involve-
ment in the killing too often to be
believed.

“If you’re telling the truth, if I tell

PLEASE SEE EXECUTION, PAGE B6 &

Bowman testified in 1983 that he

Vv EXECUTION FROM PAGE B1
you something today, 20 years from
now I can tell you the same story. If I
lie to you today, tomorrow I’m going
to forget what I told you today,”
Stockton said.

“Every time Bowman [and anoth-
er witness] have had to tell their
story, they’ve told it a different way,”
Stockton said.

A transcript of Monday’s tele-~
phone conference call about the new
evidence shows that Kiser said, ‘In
my judgment, the affidavits present-:
ed by Stockton are sufficient to re-
quire an evidentiary hearing.”

Virginia Attorney General James

_S. Gilmore III asked the U.S. 4th

Circuit Court of Appeals yesterday to
vacate Kiser’s order. Stockton’s law-
yers responded late yesterday after-
noon and the federal appeals court:
began considering the case.

Chief Judge Sam J. Ervin III and
Judges J. Harvie Wilkinson III and H.
Emory Widener Jr. ruled around 6:30
p.m.

But the Virginia attorney general’s
office complained to the federal ap-
peals court that although a North

_ Carolina sheriff had “unequivocally

[stated] that Bowman was incarcer-
ated in his jail at the time of the
Arnder murder, the district court-
nevertheless granted Stockton a
stay.”

“This court should not permit
such an insupportable stay to stand,”
wrote Donald R. Curry, senior assist-
ant attorney general.

In a recent decision, the U.S. Su-
preme Court “‘sent a clear message

. that last-minute claims such as
Stockton’s do not merit a stay or an
evidentiary hearing,” Curry argued.

If there is substantial evidence of
“actual innocence,” the remedy is,
executive clemency from the Virgin-
ia governor, and not action by a fed-
eral court, the attorney general’s of-
fice argued.

Stockton has filed a clemency peti-
tion with Gov. George Allen.

The appeals court agreed with the
attorney general’s office.

The judges wrote that “the affida-
vits do not represent eyewitness ac-
counts of the offense, and they are
produced a dozen years after the trial
in a context that is suggestive of an
intent to delay.”


Virginia Inmat
Receives Stay.

Of Execution

A federal judge ordered a 60+
stay of execution for Virginia de:
row inmate Dennis W. Stockton y, NS
terday, after defense lawyers int
duced testimony from three peo,
who say the prosecution’s key witn
admitted killing the teenager wh: NY
Stockton was convicted of murderir -
U.S. District Judge Kaiser Jack:
granted the stay and ordered an «
dentiary hearing for Stockton, who |
been scheduled to die by lethal in Orn
tion tomorrow. The Virginia Supre
Court denied the same motion fr.
Stockton Friday without comment.
Virginia Attorney General James .
Gilmore III (R) will be appealing Je !
son’s ruling to the 4th U.S. Cir |
Court of Appeals in Richmond X<> |
Tuesday.
Stockton, 44, was convicted
years ago in the July 1978 murde:
Kenneth Arnder. The North Caro . <~
youth was found shot in the heady
his hands cut off. Last week, Stc |
ton’s lawyers filed affidavits from
former wife, son and a friend of prc ‘\
cution witness Randy G. Bowman, : - <
ing that Bowman admitted to the NS
ing. A Virginia newspaper ¢
reported in April that Bowman | bra
confessed to a reporter, saying he I:

recanted his statement when a}
tioned by authorities.


Virginian Executed u)
For Contract Killing =—~

Jarratt, Va. — Dennis W. Stock- ’ “
ton, convicted of committing a

murder for hire, was executed last <>
night by injection. x

Stockton, 54, had been con-
demned for the killing of 18-year-
old Kenneth Arnder in July 1978 in
Patrick County, Va. Police said he Ss
carried out the drug-related slay- S
ing for $1,500. Stockton’s attorneys
sought unsuccessfully to delay the Ny
execution so they could present af- =
fidavits they said proved that an- S

other man committed the slaying.

Stockton was the first of nine
convicted killers whom Virginia
plans to put to death before the
end of the year. The string of exe- S
cutions results from a new state
law, effective July 1, that acceler-

ates _— 2 A I7
ee beet ae |

THURSDAY, SEPTEMBER 28, 1995

NATIONAL REPORT

S661 ‘8z Jequides ‘AepsinuL OZV

i
~

300th execution since ’'76

ARRATT, Va. — A man con-
victed of a murder-for-hire
plot was executed Wednesday
night by injection, becoming the
300th person put to death in the
United States since capital pun-
ishment was reinstated 19 years
ago.
Dennis W. Stockton, 54, was

‘convicted of killing an 18-year-

old for $1,500 in what police said

_ was a drug-related slaying.

‘The Sacramento Bee (CA)

|

Virginia executes
hired assassin

JaRRATT, VA. A man convicted of a
murder-for-hire plot was executed by
lethal injection Wednesday night, be-
coming the 300th person put to death in

San Fraanusce

EXAMINER

. Thursday, September 28, 1995 A-17

ae DUM i RRA NRE RO OT EARLE AOR EL,

the United States since t
capital ish-
raat was reinstated in 1976. _—
ennis W. Stockton 54, was
e Re , , al
Mapeon of ane Kenneth Arnder, 18 for
»0UU In what police sai
ted slaying police said was a drug-re-