io
as tat WV pinion
i hn v /0- -/E74\ Z ;
Adhere I teeta ak ae i stk ay Pee aoe
AL 4 MeL bes. ise fh lays ping Cardia t Keer G, Gaal bade
Bev Gtenccts or a 4 GAL be phew k Yi aean preted, TT a (ee
| UL, ao ey dike, b Gad pia; whee Mies Gas
Litany lopbtrtioe das) Coie Acdsing _, Late he imp ee
aa apg &f akiehey xe pati, - Bs © Abcae: XG ahityen’ |
Lhacd talisaed leh HAZELL gpa ted, Lhet lauding
Wty ta bhey : Dk bia Siiahle Myieg Lilac rons lee Asis: a2
G5 ty
La
/™ 00,
“ s « CH VA 1=2 19
i black, hanged Dinwiddie CH, P
NSON, Junius, 9
ROBINSON,
= pe usl
dnven, acecinpuniod A pment
senor eied sae « ie Sheriga Le mp
BalVive ty “aly bashers Ut ee fear
bop aver fie reat rar an cul
ry “tremor of a p Nagle le tagpain marke |
Sicsbiveveie aslectromel eda eae
eo obis *
aiiae a hia
= — : ‘ her appearines. «
bE! he srhpon Re Ma Jutheed that he
Y x SOOM ane mis yee lowe are “instead
AN (ik 1) Wak paleg toa scene of ph Re:
4 ; 7) ° r fl
ROBINSON fj
|
ices '
ete or by the lev. Pare |
af ueath, After Ben Sig y re marks ty i
: : tell, Kobinson nad the naturelet |
jFXRCUT Oy, YESTERDAY yy DIN. those around a ieliwen ti wdvised ail
‘ . SEG wdvice than orherwtss,
| w POLE CouNTy '
7 - al t
\ . 1 ¢spechlly, agains:
, | ei Paar nee a evil hpi ee
! 3 | bgt Oi them agates bee ing etree
’ sOoWd Rencitlet ‘fe
OP + W, A. JGLLy’s HURDERER, v2 yun Toast, Pet
7 , vilive “a, : Seon at heme; if frig otc ieee
| : an hey Lu leave thet in thes re uinen
paket tages Irink tht gut Rebins
Rats tagcat i it wos hts pistol Chat
hia Ris ‘ibie,
i
| Everything Qulee ana Orderly the !
‘ Warning ‘Of the Conde
!
!
wned Man. i
ki Nd hi Victim Ydter wales af din
. 8 ?
the a ; Ov Decay * ra
sf
j }
| ieee hee * PUVe, r f ; = fh
Crimea, Cnt | TAIL esémeni cs vag hrad ea 7
: ! Pte the “the ene ora as ae
| Noe Estabtianed, : j Abu wake te. ben ees Hh. AA '
a viet teemarce: ‘ ‘. ee ere simultareously sputies Sosa II
PETERSHI) GVA y i) 2—ISp i Sage oe . y the Sherif€ and his depnues. H
| Md ESS iG, PANN ry =~ (Spo. tthe ja ‘y planet
aL —Juntus Robinson Colored) Woy )
| hangeg In the JAM-yery
i atal retried athe
The: body) shot down, a at ‘icnie ed
eek iene, ~very wea Lene
mahi Ba ms 44
Contraction being
at Manwidaig
| COUrt- hong, Vosday tye the Murder, vn
the Steg or October
utes the attending Abit ay ie
Ist, of Mp. Wea. Lriges PLONE the bid WY Scars té
Jolly, 9 bromine, Merchant ang eliizen “Teen Gndauter, heaweyet,
OT the connty, \ Ro Dingon Nis Arrested on
Re hed waa eae down,
‘ . se
wags Proben by theo fs ond
Fests bed
the day nttep the crime, Rul was sont ty ) Eh ack
: Tay eek, i ntiv
he tain dn thy. elly, as tt Messure of ' ee Ray, whieh iti pest 3 Sedan
Ri lety the freting in the county betng vic weyy by tly crew tae ve ce tbh
very trons vitainst him. afr. Joliy, whe mae Bat chetied bey any ont,
War shot through thon
seed endef)
Wir ob tee at rediend gry
R bdomen hy Robin. Maeteleie, dee ot pay a
FON, aed] Cn the following tiny, ater the.
oars eR f grid, Wife iu North Ctr ioe
Ix pat an he train to tie brought to thy Ue 14 peabitisyas desve taicdbeaad her rele sys ff
Tete gop Mhe Sik ty This City Pop treat. ti ma ipitdendle i None or phic
mene, ' " DWianiie caus aaa enti ste a |
Robinson: wae brought (0 trig] Ht the | y Cime neds tie pas tl yak Wisi tu
PT Be term a: the County Court of ‘ od whet ayy es Mith ron emmy {
Dew iiie, Mae 1s 4. pes Presiding, eg Be ete LEE aE MA ,
The evidetyes “Bust him wos briet aud {': i ,
siti the: Wy Wore ul only liltven } i j
Nines, ania Yervet of Marder in ty. |} H
Miles Wea ree: VAS rendered “the Court |}, WEP ae ety:
SUNtenGeYd him ty be hinged om Jtiniary uy
“dd, and this FEN Leones
P
Sorsteipag ged Coron
Wes) Carried Mhity :
hepa Shark bees se,
PRC oN lo-vay, :
CP isone y, alter
P TONT ne, War Mmavediately, brouehe back |
YT to the Jill in thie Clty ton ge Keay Uunttt |
if tordey, During ais Con NEnien | heres he
Faker, aiVing NO lroubte
¥ couse for Complaint,
PO See hig Ariends at wh
se RD hy Claes Denetiti or Const
H *Ditityay OV, The Rey, Barres, uw Cole
Gren Pastor of thes ‘city
eon SEM istereg fo
Ws taken from the Jail Vu County
SOUL hats Min Be oy Sherhit
Young, Befargy leaves
Ne he 'Shuvk Nandy
| With the obcers ot the
Worth tiege OE epee
Ova ots e88
mn the don B00 es . ‘
‘ é : “OE feet
2 HOUy fe a fiatetts t
retered dilm talk
's’ hous ve
the nv
Camb et eWernyee ; cpa
4 on; ae
OWE Pala dg, ;
Bens Neeab diets UEeW hey pasted,
BAe feWt, and: Chen left the
¥ Sei aber is ty Ae pal
! Furen clamecd ities ee,
HUN Ris OW He: that 3
any we hia - es Tener ae any other
a o Jorg 33} . Hike % Reig
oO ried Vows ase Ww bt. a ba pif
rep Mees to Lite shuethie, none on t
yp et: :
?
mm,
Mtl. Deol y
duty pure.
ot thar
ell Welt, and bade them
NS. COnry Were ‘Phacesy “Deh gs Wrists,
pid in bo hane Ne varrjal
-
reed Em crepe tere testigy ogy ies,
erat Foe
a. Vibete, A
| Narge Utuiber Gr
’
'
F self de fege
Ne groey ASCH ted ut
Che a
“hat to ee him Off, bre DY signs of
Peeiatges Were own, H
‘Ihe ONO ay Wis 4, Tee agitag, The |
POO dnd de HM Ore gy in he Juiteyore,
fim a high Tepes day
Fetnty (he publie View
fase, Mhred at
MUMsity, Inire
ny Vani tes num
POC eg H
; ibid angen ate
ue Reiter, tek
‘e o
a
0 Riek ‘.
eae ade.
ROBINGON, samuel J., black, hanged Lessburg, VA, on 4-9-1880
ONE LESS ‘COLORED ‘VOTER. i
Expiating on “the | Gibbet a Cowardly.
barn Sarena to be in eel j
ey {With Portrait. }
‘Lexspuna, ‘Ya. April 9.—Samuel J. ‘Robinson; a
negro, was hanged at this place this mornivg, for the
murder of Edward Thomas, Robinson rose this morn-
ing at 6 o’clock. He said he was ready to die, but ho
Wanted a good breakfast first. His triends were al.
lowed tu bring him everything he would est, . He got
away with an enormous breakfast, While eating his
breakfast he wae in the best of spirite, and vhatted
pleasantly with all around him. At 6 o’clock he was
taken from his cell. It had been arranged that the
execution should be private, and it took place inside
the jail walls. About a hundred persons Were ad-
mitted, however, and despite the early morning hour
| &crowd of three or four hundred oe around
| the jail, and os «
| THE TREE-TOPS ae
in the vicinity were filled with men and boys. ‘the
condemned man ascendtd the scaffold with a fitm
step. . When he got on top aud looked ‘around. he
showed agitation. After Sheriff Caruthers had ad-
justed the trap he called on Rev. Mr. Canon, who ‘of
fered # prayer.. Tho prisoner frequently injected a.
fervent amen into the prayer, and knelt with hishead
resting upon the rail of the scaffold. * Haye youany:
thing to ssy, Samuel Robinson ?”’ asked Sheriff Carn: _
thers. “No, sir; no confession to: make,”’ was the ree.
ply, The trap was sprung | and. Robinson ahot tt through...
His neck was broken. RE tore
. THE MURDER :
for which Robinson was banged was cold-blooded and
deliberate. About the middle of October last, Bobin-
sop, together with several others, was engaged: ‘no
playing cards with Thomas, when some difference
arose between the two principals, which finally as-
sumed the shape of a knock-down. argument, Robin-
son, it is sald, coming out second. best.. One werk
later another game had been made up at the house of
Thomas, to which Robinson was refused sJmittance.
Later on the same evening Thomas was seen on horse-
back by Robinson, who knew that he was going to
the village of Lincoln for the purpose of getting some -
whisky with which to entertain the party. Robinson -
hastened to his own house near by, and procured a-
loaded gun, went. to a secluded point of the road by -
which he knew that Thomas must pass on his return,
and quietly awaited the De of his victim. Soon °
after Thomas came :
RIDING ALONG WITH HIB 5 aut,
pnd when the opportunity presented itself Robinson
discharged the fatal shot. ‘Thomas fell to the ground
mortally: wounded. sobinson went off home, and
Thomas was picked uy next morning in a dying con-
dition, Just before death Thomas declared that Robs
inson was the man who shot him. Robinson was
committed for the action of the Grand Jury, and was —
indicted for murder, found guilty, and sentenced.
Yesterday,.when told that he:had but one more day
left, and advised to Confexe, he smiled and said: « ‘Oh,
Lord, I'se just: waitin’ for de day to come. : I wish it
hiss is here bow, ‘cause I would have one more day in
ROGER (Slave) tlanged H-9-/7o
"1762=Bob, slave of A chibald Dick, broke into the store-
house of Theodore Morrison = sentenced to hang. Broke out
of jail the day before the day set for the hanging, never
heard from agains Roger, slave of George Arnold, partici-
pated in the crime above - HUNG; Tom, slave of Thomas Cole-
man, participated in crime above - 39 lashes as the whip-
ping post," COLONIAL CAROLINE, A HISTORY OF CAROLINE COUN~
TY, VIRGINIA, by T. E. Coleman; Richmond: Dietz Press, Inc.
195, page 333.
Case found th Caroline Crenty Order hook
(1759-1163) page 375. Froger’s value X 90
RUFFIN. John
"Burlingt.: Cey Feb. 1, 1901. = John Ruffin was
hanged ne. about noon today for criminal assault,
The execu: : 3s public but the crowd was small, The
condemed | ie a speech on the gallows inviting his
listeners - ‘{ him in Heaven." TIMES, Richmond, Va.,
2-2-1901 (:
Aye /6. face : ‘Negro. Victon: /0 year old Negro girl.
Nether accourt of crime sor execution give tis age. Buf
account of Commutation elfort does. —
Ralthh Mews & Wserver, -5-0/ F2
| then “who m P.Eopeaont
ight of vy dag 1801, expiated pie erime on
ou
f le this
RD colored solnisters of
without a stru o
aut
tiret by the atten a
0 one pialaaiag
pe body it was buried Pf ~. M4 °" Bie 2
————
olen -
C
harleston Courier February 10, 1893
7
'
}
| @ Vllem 44 wea Uae WW AERO Nas
pee Mepitel Crnisdnand
« SEB ‘ ZX‘ eT? fea. of Lig tj loans te ba ZEEOS i. Qo" ¢
le ° |: a 4 ate wud 8
ny Kee oi vi | tet fm". ROGER, Slave,
Doky | “gs os, soe asene ait | | Executed Isle of
ve ‘4 ws an Wight Co, Virginia
a aauing, dot Mees Eng ef ange b Velate 1770
PEE Cade limayy, hoe aermoty aitian cone thse
|e mores Lk boing eedes ee. enchace ss peda fone
f mg Thoneys ard for balhabamtirrs xe a lipensse ve inceet
Lap hewn dames about hayme l770.b beenlaud be apport wee
ws Sen haves ¢ Hom Moder pate Crd ee
re a | \y , ;
Pee cede phi tineyd me . .
ve La Named lhe vain mnie a ae .
aes bo oo Veuee rite; jane teeny rls. Cnesfecle wala ne neff
meeemtig attaisiny net Mlsnsing of Mawaid righ mnny pn ther
fl hee Aas ii SAEED Re
cee rn eee i
Wetniface, . oe
Stn lthelficles
i MH: Boba bape papa a
A vérg badly getblid aCCuAT- Aecordny Io the Exec. Journal |
Gov. 2f5Y the County wes Paliba ard the dete OF ex. 2/07.
Deterdemts were Sally A hyzate by mame. Villy was ¢xteated
0 317 and hizzhe had her Staferne commited om Ff l3/SY.
Two female slaves-Probably Virginia
(Need confirmation)
"Two negro women, the property of Dr. Singleton of Fairfax
County, were found guilty of mrder at the December term
of the Court of that County and sentenced to be hung on
Fruday, Feb. 12, 1854. The Danville REGISTER states that
their victim was another female slave." NEW YORK TIMES,
New York City, Ne Y., 1-19-185) (6-2).
Slave SA M
in Chesterfield County, Va., Sam, property of
Charles Benton was, on May 1l, 1795, sentenced
to be hanged and valued at 75 lbs. Deputy Sh.
A. Bass certified that the execution took place
on June 12, 1795.
A uditor' s Records, State Archives, Box 1, Item
153, 1795 envelope,
fox 41, Exec. fapers of Gov.
Kiqoed Sally Wise on 54/96.
Reassign location to Nansemond
ROYSTER, J Oi ie S 4 ik. Count
. Couchy Seat UTTO “*
"Joon U. Roster, a 2 uo who illo! Jolin Hoppar on duly
Of LF, ver honeed, @ i Norfolky Voey On Sai. Sy 1693," é
von bebe, crass yer te itr ie am, Ale
cea tah ace ca el my OUrt sumeree scbagy Line y 2 ~LO=1693
"Norfolk, Va., 2-9-1893-John B. Royster, the negro who
killed John P, Eppes on the night of July 29, 1891, ex-
piated his crime on the gallows in the county jail yard
today. Royster was visited in the jail by a large number
of people, this morning, including the white and colored
ministers of the town, who read the scripturcs and prayed
with him until the hour of execution, He was led to the
scaffold at 12:10 when Sheriff Baker read to him the order
of the court for his execution and gave him an opportunity
to say anything he might desire, but the condemned man was
too firghtened to make any connected statement. Prayer
was said on the scaffold for him, At 12:27 the drop fell,
and at 12:0 life waspronounced extinct by the attending
physician. He died almost without a struggle. No one
Claiming the body, it was buried by the authorities,"
COLUMBUS ENQUIRER-SUN, Columbus, Ga,, 2-19-1893 (2-H)
"2-10-1892-John B, Royster, the murderer of John Pepps,
manager of the Western Union Telegraph Co, at Suffolk, Va,
was captured in Martin Co., N. ., yesterday. He fought
desperately when captured and had the appearance of having
lived in the woods for months," ENQUIRER-SUN, Columbus,
Ga.y 2-11-1892( 2-1),
_ Ahead of the pending Ud Sam:
ee os
= Wi, lippiive subsfahioly turned Whe oecesstd fle
_ Wits ttror I Old Stim without /egel protection i
ab hest tip He mane and the Canty aurtharibes
__ __tamedlabely tized gan the chance te urry titan
_. te tht gallows ard Moitng litiva betgla, (The OXI,
—. Aah trregular, was SAM legal),
ha aletter fo toe Cov. writter; 01 the Some
ty (HM), oh ther chal
“ue Yatned that they Were Constrittned by fii Fo
_ ___ flow tye Gov. 5 Instructions 70 THE LETTER ___
_ hat beltee._Le etch, he Sito that the Gow.
Could blame hiast/f and the carefesssess of bus.
_ egal Stat? for the txecution of Od Stn. The
. —Ututhamphn Court Clerk also éxplatred, (ita |
Wht Ws inns? cerlainfy a face-Saving fie), tat.
_ Whe rent drived wher he was 110f af home
te réettye tt and was signed for by Lis young
_ S00, Who did not recognize the Error which
Ard bad ne aucbrarity to abter them even tt they
lt contained.
Oye. wonders who fofrrmtd the Sherri! that
fe was never the loss SAU fepiired 7 preserve.
tht lhe of fitac the fatter and 10 that of
franc the Matter, the [Ast remaining de-
_ __ftnoltnt tf the orignal four, reais ay Qiiylng.
he ak KE
ciate | Se a ee en ae ee
SAM, S lave, hanged Southampton Co Va Aor i _
. g ) | CO, -, on April 11, 1860, ..
Saban tr County Wurder case of 1799.
Wis case is an extremely complicated mess. Birt
_ fe bottom tne 13 as Follows * ae
_ | JERR y Adin 2 Leclared ar 1107 and pardoned.
Old Sami Executed 4-11-1800
_ ___fgaae: Died in Friso
__fsaac the Hatter * Fate tanderermmned.
_ Sureing: Boyes 100. 111.4 12, bec. Pypers
of Governor James Monroe. Va. Site Archives.
_ __. Synopsis._ On October 18, 1799 Siw Slave driers.
os tamed shun Butte and Harris Speirs, ([exiderts
of Cary), were on the toad belwetn the villages
a Jrusaion and brad Water with a Slave Tratta__
tn route trom Maryland 2o Ceoryia_when te SUAVES =
got laase and hiled Lot rots, Ihty aso terrpvized
fhe Surrowniing Courtrysixe Letore four Of tht
| were rounded e. MU four were promptty Cardeormed
_.tv oath by a utnamplon County Court of byen
A Terminer and slated ro hang 077 28-22. Lut
___ eal stie_compl ications okvelyped. ft was argued
at the debendar’s Should not have been teitd ta
the Stubbanyplon County save court becuse they
WOE 0s ti toast t Wad thereby Od riot mech
pester reguitemen)s of that Court 4 Wits affo____
_ Would tha A Uity were tree negrves. of Mary find _____
at had betes ihe; Ny abdlrcted by the Deceased.
gd were terctore tated 10 trial bt fare Lhe Dis-
pole Court instead of the County Sfave triburrah
_ Ws poms of law touched 0fF a Segalistie —______—
_ ess game. which lasted Wt tonto the foffomitig
_ lat. beraor Monroe, [te tecture President) issued
A.
tt Sfay altar another while these pourts were. =
__. __ vestigated and argued ta extense. Aad the
_ ... phhtnee. of bot Southanplon Court and populace
Gf progressively Shorter wills ACh Tyr ite. ce
Mbt tirst break in the cast camt on 1-21-[800 when
ey was_ganted a parody on ? $f tape0s Of fdlacy.
3 Clerk of toe County Gurt Gmnplained bitterly
About 4 in.A remmsfrance fo be Cov. But trp
tls. OF tie parton wes nade publi, APF |
babe out at the Cnty Star. An Get y Mob _
__.. Carried a thtigy of the Govervwor around the
— Ven, foated 1t with every tontgtinable prasulf,
——.Meaed hing tt on tne local gallows. (The extreme
SCN whieh tis Last tationed ach Conytyed (3.
a Nt Nelly sypreeiated by 20th Caatury Starditds;
___ ___ St WAS At) BAY aboominahle Masalt), nee
= Se Governor was proosptty tirtormmed by Special
Ws gt That lynching was Jawninen! for fhe
_.. . prisoners.tnd Jo ruade Zaste to place the Soutth- |
dnyton fall tinder military oi oS
: With this, the County aufborites retaliated. S
_ by Sleippiing the prisoners raged and forcing them
td endure Lht remincer of the winter with nttther
Att ror Clothing. Wty were abo ted on bréad and ____
_. __. Witter. lye. She prises, [Stac, obed of ex-
_.. posure Under these Conditions, = = |
bis Itt Old Saint’ tnd ‘tsaae the Hatter whoa
Were rip teved tint April Mh Ihr 1800, tn. whitla
—__._.day_yet another reprieve Wr tvtd but Which Was :
—— _.ttund 1b Contain tan Crror that pened a foyphole_____
__—_ Sor he County. She rrtw reprieve was mide out
Wn tbe rmes of ‘Isaac’ twod VUsade the fletleor
by pilstake PEE pasfead of the names of Wo
Sit" tht "[yaac the Hatter’ as -Spould have been,
Ye [Fon]
New Kent County, Va., sheriff attests that he
hanged Slave Sam (owner' s name not given) on
Marcn 26, 1824, Valued-at $300.00 and comp,
meade 5-3,
archives of Virginia, aah s Records, Box 4
Item 153, 1824 envelope,
Murdered Negro Charles, Shave oF Joho Colgin, with 47 axe.
hobbiry wis wthive. Box 28), Exec. fapers of Gov.
DAM, a slave
SAVINO, Joseph John,m white,m LI VASP - Bedford - 7/17/1996
Executions In 2 States
AP 17-Jul-1996 23:48 EDT REF6061
Copyright 1996. The Associated Press. All Rights Reserved.
The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.
By The Associated Press
A man who pleaded guilty to killing his male lover then said police
had badgered him into the plea was executed by lethal injection in
Virginia, the second of three executions scheduled Wednesday.
Earlier in the day, a former Boy Scout leader who murdered two boys
in 1983 was executed in Nebraska’s electric chair, and a man convicted
of killing a police officer awaited execution in Indiana.
Joseph John Savino III was executed in Virginia after two final
appeals to the U.S. Supreme Court failed. He was pronounced dead at
11:22 p.m., said Tammy Brown, a spokeswoman at the Greensville
Correctional Center.
Savino, 37, initially pleaded guilty to bludgeoning Thos McWaters at
their Bedford County home. Later, he argued that police had badgered
him into confessing even though he repeatedly asked for a lawyer, and
that he was high on cocaine at the time of the murder.
Savino moved in with McWaters in 1988 when he was paroled to
Virginia after serving six years in a New York prison for robbery.
Savino had known McWaters, 64, for seven years and worked for his
construction firm.
Savino said in an interview this week that McWaters supported him
and gave him money but also hounded him for sex.
In Indiana, Tommie Smith was scheduled to die for killing an
Indianapolis police officer. Smith claimed he only fired in
self-defense at Sgt. Jack Ohrberg, who had come to his house in 1980 to
serve an arrest warrant for another man. That man, Gregory Resnover, —
was executed in 1994 for his role in Ohrberg’s killing.
Smith, who had burglary and robbery convictions in the 1970s,
admitted firing a shot at the officer, but said he mistakenly believed
Ohrberg was an intruder and denied police accounts that he shot the
wounded officer as he lay on the porch.
In Nebraska, former airman John Joubert apologized for his crimes
just before he was executed in the electric chair early Wednesday.
"I do not know if my death will change anything or if it will bring
anyone any peace," said Joubert, 33. He mouthed "I love you" and made a
gentle kissing gesture toward his girlfriend after being strapped in
the chair.
Joubert repeatedly stabbed and slashed Danny Jo Eberle, 13, and
Christopher Walden, 12, near Offut Air Force Base, where he was
stationed. He also was convicted of stabbing and strangling a boy in
Maine.
The killings 13 years ago kept the Omaha area in fear for three
months. Joubert was caught after he tried unsuccessfully to abduct a
preschool teacher, who then noted the license plate number of Joubert’s
car. Joubert confessed later that day.
In explaining the murders, he told the Omaha World-Herald last
month: "It was the power and the domination and seeing the fear. That
Child Killer Executed In Neb.
AP 17-Jul-1996 19:06 EDT REF5765
Copyright 1996. The Associated Press. All Rights Reserved.
The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.
By The Associated Press
A former Boy Scout leader who murdered two boys in 1983 was executed
in Nebraska’s electric chair early Wednesday, while killers in two
other states were to die by injection Wednesday night.
In Virginia, Joseph John Savino III was scheduled to die for
bludgeoning his male lover to death and in Indiana, Tommie Smith was
scheduled to die for killing a police officer.
Savino, 37, initially pleaded guilty to killing Thos McWaters at
their Bedford County home. Later, he argued that police had badgered
him into confessing even though he repeatedly asked for a lawyer, and
that he was high on cocaine at the time of the murder. |
Savino moved in with McWaters in 1988 when he was paroled to
Virginia after serving six years in a New York prison for robbery.
Savino had known McWaters, 64, for seven years and worked for his
construction firm. :
Savino said in an interview this week that McWaters supported him
and gave him money but also hounded him for sex.
In Indiana, Smith claimed he only fired in self-defense at
Indianapolis police Sgt. Jack Ohrberg, who had come to his house in
1980 to serve an arrest warrant for another man. That man, Gregory
Resnover, was executed in 1994 for his role in Ohrberg’s killing.
Smith, who had burglary and robbery convictions in the 1970s,
admitted firing a shot at the officer, but said he mistakenly believed
Ohrberg was an intruder and denied police accounts that he shot the
wounded officer as he lay on the porch.
In Nebraska, former airman John Joubert apologized for his crimes
just before he was executed in the electric chair early Wednesday..
"I do not know if my death will change anything or if it will bring
anyone any peace," said Joubert, 33. He mouthed “I love you" and made a
gentle kissing gesture toward his girlfriend after being strapped in
the chair.
Joubert repeatedly stabbed and slashed Danny Jo Eberle, 13, and
Christopher Walden, 12, near Offut Air Force Base, where he was
stationed. He also was convicted of stabbing and strangling a boy in
Maine.
The killings 13 years ago kept the Omaha area in fear for three
months. Joubert was caught after he tried unsuccessfully to abduct a
preschool teacher, who then noted the license plate number of Joubert’s
car. Joubert confessed later that day.
In explaining the murders, he told the Omaha World-Herald last
month: "It was the power and the domination and seeing the fear. That
was more exciting than actually causing the harm."
Tuesday, Dec. 9, 1997—
VIRGINIA:
Michael Satcher, 29, was executed tonight at the Greensville Correctional
Center in Jarratt, Virginia, for the 1990 rape and slaying of a woman
along a bicycle path in Arlington County.
Anne Elizabeth Borghesani was beaten, raped and stabbed 21 times with an
awl on March 31, 1990; Satcher was also convicted of the assault and
attempted rape of another woman who was attacked along the same path that
day.
Amnesty International USA asked Virginia Gov. George Allen to commute the
death sentence or halt the execution "so that any doubts about his guilt
can be resolved."
But Allen declined, saying that “the jury found that the crime was
wanton, vile and inhuman and that Satcher posed a future threat to the
safety of other human beings. | find no reason to overtum the judgment
and sentence rendered by the jury."
Satcher’s lawyers fought unsuccessfully in court for new DNA testing
which they said would cast doubt on his guilt. A test performed at the
time of his trial matched DNA in Satcher’s blood with DNA found in semen
left in Borghesani's body by her attacker.
Satcher becomes the &th condemned prisoner to be executed this year in
Virgin, tying the record for most executions in 1 year in that state,
Virginia executed 8 men last year, and will likely break that record this
week with the impending execution of Thomas Beavers on Thursday night.
Virginia has now executed 45 men since resuming capital punishment in 1982.
Satcher became the 73rd condemned prisoner to be executed this year in
the USA, and the 431st overall since America resumed capital punishment
on Jan. 17, 1977.
(source for both: Reuters)
Monday December 9, 1998 America Online: Galba3$ Page: 1
SARAH Executed 6-16-7045
"..eAt a court (Northampton County, Va.) held by a com-
mission of Oyer and Terminer, granted by the Governor in
1705, the negro slave Sarah, belonging to Major John
Custis, was indicted for burning a barn full of grain and
a house with a considerable quantity of salt and s&averal
barrels of her Majesty's gunpowder. She was found guilty
and hanged (Northampton County Orders, Wills, Vol. XVIII,
1698-1710, pp 23-2: 216-247). But inasmuch as the
Master was not chargeable for the wilful wrong of his
servant, Major Custis made no reimbursement for the gun-
powder destroyed. (JUDICIAL CASES CONCERNIN” AMERICAN SLi
VERY AND THE NEGRO, Comp. and Ed., Mrs. Helen T. Catteral,
5 volumes (Washington, 1926), Volume One, page 8h,
STUDIES OF THE VIRGINIA EASTERN SHORE IN T E SEVENTEENTH
Wilder Is “Appalled’
By DeNeen L. Brown
and Avis Thomas-Lester
Washington Post Staff Writers ~
Virginia Gov. L. Douglas Wilder
said yesterday that he was “ap-
palled” by the requests of two death
row inmates to have their sperm
frozen for insemination of their girl-
friends after their executions.
_ “This administration has no in-
\tention of responding affirmatively
to requests from death row inmates
seeking extraction and storage of
their sperm for later insemination
iof females of their choice,” Wilder
said in a statement. “I’m appalled by
their brazenness.”
two Mecklenburg Correctional Cen-
ter inmates, Joseph Roger O’Dell
III, 49, and Joseph Savino, 32,
‘spoke in a Washington Post article
about their desire to leave offspring
after their executions.
The prison’s warden, Charles E.
Thompson, said yesterday that he
Ihad received orders from the Vir-
iginia Department of Corrections to
tell the inmates that their requests
had been denied. Thompson said that
he did not know the reason behind
the order but that he believed it is
not the system’s responsibility to fill
such requests.
“I don’t think we’re obligated to
get involved with that for death row
inmates. I think we have more impor-
‘tant things to do,” Thompson. said.
“We're obligated to take care of.the
basic needs of the inmates. It’s not
ione of our priorities .... to talk
labout sperm for death row inmates.”
URS Hi GTO) (Po
By Inmates’
Killers’ Insemination Plan Called Ironic
The statement came a day after
Request
O’Dell, who has a sister but no
brothers, argues that because his
execution would end his family name
and “bloodline,” not allowing him to
have his sperm frozen constitutes
cruel and unusual punishment.
The Virginia Supreme Court has
denied as frivolous O’Dell’s request
that prison officials be ordered to
allow him and Savino, to have their
sperm preserved. O’Dell appealed
to the U.S. Supreme Court.
A Northern Virginia paralegal,
Patricia Dupree, who acts as a legal
consultant to O’Dell, said yesterday
that she thought O’Dell would be
disappointed by the . governor’s
statement. “This means he’s not
going to be allowed to carry on his
bloodline,” she said.
O’Dell, who is awaiting execution
for the 1985 rape and murder of a
Virginia Beach secretary, could not
be reached for comment.
O’Dell’s girlfriend, Sheryl, who
asked that her last name not be used,
has given permission to be named as
the legal recipient of his sperm.
The other inmate, Savino, who is
awaiting execution for the hammer-
ing death of his 64-year-old male
lover, said recently he had been
talking about parenthood with his
current girlfriend.
The two men are among 41 in-
mates on Mecklenburg’s death row.
“It is a grim irony that individuals
who have taken the lives of others
now ask that their bloodline be pre-
served,” Wilder said. “Their actions
prevented innocent victims from
the opportunity to do the same.”
§—LO 19]
fpsT
avave ee
ws ~ aw nee,
> EXECUTIONS: Former Boy Scout leader John Jou-
bert, 33, died in Nebraska’s electric chair for the 1983 mur-
der of two Bellevue boys, ages 12 and 13. Joseph Savino III,
37, was to die late Wednesday by injection in Virginia for
the 1988 bludgeoning murder of his male lover, Thos
McWaters, 64, at their Bedford County farm.
* THURSDAY, JULY 18, 1996 » USA TODAY
—_—_—_————
een UB CERES
\
EXECUTIONS: Joseph John Savino
Ill, 37, was executed by injection in
Virginia for the 1988 bludgeoning
murder of his male lover, Thos
McWaters, 64, at their Bedford
County farm.
>» Former Boy Scout leader John
Joubert, 33, died in Nebraska’s elec-
tric chair for the 1983 abduction and
==3 murder of two Bellevue boys, ages
: AP 12 and 13. He also was convicted in
Savino: Executed — portland, Maine, of the 1982 murder
for killing lover of a boy, 11.
> Tommie Smith, 42, was sched-
uled to die by injection in Indiana early today for the 1980
gunshot slaying of Indianapolis Police Sgt. Jack Ohrberg.
’ THURSDAY, JULY 18, 1996 - USA TODAY
Killers Put to Death in Virginia and Indiana
By The Associated Press
A man convicted of killing a police
sergeant in Indiana was executed by
injection early yesterday, hours af-
_ ter a man who had accused police
officers of badgering him into plead-
ing guilty to killing a companion was
executed in Virginia.
To the end, the Indiana man, Tom-
mie J. Smith, maintained he did not
fire the shots that killed Sgt. Jack
Ohrberg of the Indianapolis police.
Sergeant Ohrberg had gone to Mr.
Smith’s house in 1980 to serve an
arrest warrant for another man.
That man, Gregory Resnover, was
wanted in the killing of a Brink’s
guard in a $50,000 robbery of a
Kmart store in August 1980. Mr. Res-
nover was convicted for his role in
killing both the guard and Sergeant
Ohrberg and was executed in 1994.
Mr. Smith, 42, who had burglary
and robbery convictions in the 1970’s,
said he shot at the officer, mistaken-
ly believing that Sergeant Ohrberg
was an intruder. He denied police
accounts that he shot the wounded
officer as he lay on the porch.
In Virginia, Joseph John Savino 3d
was executed by injection late
Wednesday night after calmly stat-
ing, ‘I’m sorry for what happened to
Tommy McwWaters.”
Mr. Savino, 37, pleaded guilty to
bludgeoning Thos McWaters to death
at their Bedford County home in
1988. Later, he said that the police
had badgered him into confessing
even though he repeatedly asked for
a lawyer, and that he was high on
cocaine at the time of the killing.
Vg
‘ore ome wee
Inmates want to be fathers
BOYDTON, Va. — A death
row inmate wants his sperm
frozen and used to inseminate
his girlfriend, saying the state’s
right to kill him doesn’t mean it
can end his bloodline.
Joseph Roger O’Dell, 49, faces
execution for the 1985 rape and
murder of a Virginia Beach sec-
retary. He asked the state Su-
preme Court to allow. him and [
fellow death row inmate Joseph
Savino, 32, to preserve their
sperm.
The court denied the request,
calling it frivolous. Prison offi-
cials were still considering it.
[RyoLoce
Meat, A
: bo (199 /
(2h -2)
|
EXECUTION
The National Execution Alert Netw
of the National Coalition to Abolié
ALERT
ork is a project
h the Death Penalty
For more information, contact: Pamela Rutter, NCADP,
1325 G@ St. NW, Lower Level B,
Washington pc 20005 (202)
ALERT 90-
347-2411
June 20, 1990
90-5
*KEXECUTION ALERTX*EXECUTION ALERTX*EXECUTION ALERT*X*EXECUTION ALERT**
25 JUNE 1990 LETHAL INJECTION
ARKANSAS KKSUICTIDEX*
RONALD GENE SIMMONS, (White), ag 49, has been on death row eince 1988.
He was convicted in two separate trials
for murdering 14 family memberé
and two Russellville residents on December 28, 1987. Simmons has eaid
he wante to die to “end the torture and
euffering in me.”
In this past Spring, the u.S. Supreme Court ruled that Arkansas
does not have to provide mandatory review for death row prisoners.
TAKE ACTION, CONTACT: Gov. Bill Clinton
State Capitol
Little Rock AR 72201
(501) 682-2345 FAX: (501) 682-1382
TEXAS KKSUILCIDEX* 26 JUNE 1990 LETHAL INJECTION
JAMES SMITH, (Black), age 37, hae been on death row since 1983. He wae
convicted of the robbery/murder of a white male. Smith has
consistently wanted to be executed because he doesn’t want to epend the
reet of his life in prison.
TAKE ACTION, CONTACT:
Attorney General Jim Mattox
State Capitol
Austin, TX 78711
(512) 463-2100
FAX:
VIRGINIA *KKSUILCIDEX*
Gov. William P. Clements Jr.
PO Box 12428
Austin TX 78711
(512) 463-2000
(512) 463-1849
29 JUNE 1990 ELECTROCUTION
JOSEPH SAVINO, (White), age 30, hag been on death row elince June 1989.
He was convicted of the robbery/murder of hig homosexual lover. Savino
pled guilty, has had his direct appeal and wante to be executed.
TAKE ACTION, CONTACT: Gov. Douglae Wilder Atty Gen Mary Sue Terry
State Capitol
Supreme Court Bldg
Richmond VA 23219 102 N 8th St.
(804) 786-2211
FAX: (804) 786-3985
TEXAS 11 JULY 1990
Richmond VA 23212
(804) 786-2071
LETHAL INJECTION
KENNETH GRANVIEL, (Black), ag¢ 39, hae
1975. He was convicted of the murder o
TAKE ACTION, CONTACT:
Attorney General Jim Mattox
State Capitol
Austin, TX 78711
(512) 463-2100
FAX:
been on death row gince November
f a 2-year old white female.
Gov. William P. Clements Jr.
PO Box 12428
Austin TX 78711
(512) 463-2000
(512) 463-1849
13 JULY 1990 ELECTROCUTION
ALABAMA
WALLACE NORRELL THOMAS, (Black), age 36
, has been on death row since
July 1982. He was convicted of the murder of a white female. Thomas”
two codefendant 6 received life fenbences. Thomas Was convicted on
circumstantial evidence, and one of his codefendant 6 confession.
TAKE ACTION, CONTACT: Gov, Guy Hunt
eftys ‘22h S Union St.
A
t. Montgomery L 36130
ea (205) 261-7100 FAX: (205) 261-4017
VIRGINIA 19 JULY 1990 ELECTROCUTION
RICKY BOGGS, (White), age 27, has been on death row since October 1984.
He was convicted of the murder of an elderly white female.
TAKE ACTION, CONTACT: Gov. Douglas Wilder Atty Gen Mary Sue Terry
State Capitol
Richmond VA 23
(804) 786-2211
FAX: - (804) 786-3985
Supreme Court Bldg
219 102 N 8th St. .
Richmond VA 239212
(804) 786-2071
dicates
ossible
d then
consis-
he cir-
ith the
howing
need to
iced by
ul court
rights
iffirma-
he plea
ee with
is both
rit.
errors
asented
habeas
Wrrigan,
4), cert.
Ct. 780,
are also
arris v.
3, 1042-
right v.
", 2506-
hen the
wit and
alleged
tes that
sult in a
may the
iallenge.
750, 111
(1991);
1042-43.
’ of the
m. He
ould be
; akin to
1 claim
mn direct
er. The
1e court,
ttorneys
‘ffective-
e. Savi-
SAVINO v. MURRAY
Cite as 82 F.3d 593 (4th Cir. 1996)
no’s own argument that the error is obvious
from the transcript of the plea proceeding
further demonstrates that the claim could
have been raised on direct appeal. Because
Savino failed to present the issue on direct
appeal when he could have done so; the state
habeas court found the claim procedurally
defaulted under Slayton. The Virginia Su-
preme Court then refused to review the
claim as procedurally defaulted, thus fore-
closing -federal court review under Sykes and
its progeny. See Coleman, 501 U.S. at 750,
111 S.Ct. at 2565 (the procedural default is
considered an adequate and independent
state ground that forecloses review of the
claim in federal court); Bunch ». Thompson,
949. F:2d 1354, 1363 (4th Cir.1991). Because
Savino has shown neither “cause” and “prej-
udice” for his default nor alleged a funda-
mental miscarriage of justice, we are pre-
cluded. from considering his claim on the
merits. :
[17,18] Even if we did reach the sub-
stance of Savino’s..claim: and review it. de
novo, see Marshall v. Lonberger, 459 U.S.
422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646
(1983) (stating that voluntariness of a plea is
a mixed question of law and fact appropriate
for de novo review), we: would not rule it
Meritorious. The record indicates that Savi-
no was adequately informed of the nature
and the consequences of his guilty plea. Be-
fore taking the plea, the trial judge reviewed
the memorandum of understanding with him
in open court. The judge confirmed that
Savino read and understood the memoran-
dum, then signed it with full knowledge. In
response to the judge’s questions, Savino de-
clared that his plea was free and voluntary.
The colloquy, coupled with the substance of
the memorandum, more than satisfies the
concerns articulated in Boykin v. Alabama,
395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13,
23 L.Ed.2d 274 (1969) (finding that courts
may not presume from a silent record a
waiver of constitutional rights associated
with a not guilty plea, but must engage in a
thorough, on-the-record inquiry to establish
that the defendant voluntarily and under-
standingly enters his guilty plea). See also
Wade v. Coiner, 468 F.2d 1059, 1060 (4th
Cir.1972) (holding that a state judge may
Satisfy Boykin concerns by ensuring that an
attorney has advised the defendant of the
nature of the charge and the consequences of
his plea). In addition, such in-court repre-
sentations from the defendant are treated as
conclusive with regard to the validity of the
plea and may not be controverted later ab-
sent some compelling reason, which Savino
has failed to present. See Via, 643 F.2d at
171. Moreover, when a defendant making a
guilty plea is represented by counsel, as Sa-
vino was, his plea is strongly presumed to be
valid in subsequent habeas proceedings.
United States v. Custis, 988 F.2d 1355, 1363
(4th Cir.1993), affd, — U.S. —, 114 S.Ct.
1732, 128 L.Ed.2d 517 (1994). For these
reasons, we would agree with the district
court’s conclusion. that the record demon-
strates that Savino’s plea was knowing and
voluntary.
C. Mental Health Expert Testimony
Savino’s final argument is’ that testimony
by the Commonwealth’s mental health expert
regarding future dangerousness violated his
Fifth Amendment right against compelled
self-incrimination and his Sixth Amendment
right to effective assistance of counsel: We
find no such violations.
[19-21] The United States Supreme
Court has held that a capital defendant who
undergoes psychological evaluation and faces
the results of that examination as evidence at
the penalty stage is protected by both. the
Fifth and Sixth Amendments. Estelle: v,
Smith, 451 U.S. 454, 471, 101 S.Ct. 1866,
1877, 68 L.Ed.2d 359 (1981). Under the
Fifth Amendment, the defendant is entitled
to warning before the evaluation that he has
the right to remain silent and that if he
waives that right by cooperating, his state-
ments to the evaluator may be used against
him at the penalty phase. Jd. at 462-63, 101
S.Ct. at 1872-73. The. defendant also has a
Sixth Amendment right to effective assis-
tance from his attorney regarding the deci-
sion of whether to cooperate, which requires
that his attorney receive notice of the scope,
nature and intended uses of the evaluation.
Id. at 470-71, 101 S.Ct. at 1876-77. Both
amendments thus require clear notice to the
defendant and his counsel regarding any psy-
603
iehcios, ‘
wae a
HR ag See seamen SRS
10
SAVINO v. MURRAY
605
Cite as 82 F.3d 593 (4th Cir. 1996)
argues that he deserved specific notice that
his evaluation could be used to establish fu-
ture dangerousness, Smith and its progeny
do not require such specific notice. In
Woomer v. Aiken, 856 F.2d 677, 681-82 (4th
Cir.1988), cert. denied, 489 U.S. 1091, 109
S.Ct. 1560, 103 L.Ed.2d 862 (1989), we ap-
plied Buchanan to reject a nearly identical
claim. There, we found no Fifth or Sixth
Amendment violation because defense coun-
sel had requested one mental health evalua-
tion and consented to the other, and thus had
actual notice of the examinations. Jd. at 682.
We further concluded that the Constitution
does not require that a defendant be specifi-
cally notified that a psychiatric evaluation
might provide a basis for a future dangerous-
ness argument. Jd. Given that the facts
before us are nearly identical to those in
Woomer, we reach the same result.
Finally, Va.Code Ann. § 19.2-264.3:1 dif-
ferentiates between a defendant’s statements
made during psychiatric evaluation and an
expert’s opinion based upon such statements.
The statute forbids the use of statements or
disclosures made by the defendant during a
capital sentencing evaluation as evidence
against the defendant for the purpose of
proving aggravating circumstances, but it al-
lows the use of those statements or disclo-
sures in rebuttal to issues raised by the
defense in mitigation. Va.Code Ann. § 19.2—
264.3:1(F) & (G). Because the statute does
not preclude use of the opinion of the Com-
monwealth’s examiner for establishing an ag-
gravating circumstance, however, the Virgi-
nia Supreme Court has-determined that its
provisions permit the expert’s opinions on
future dangerousness. Stewart v. Virginia,
245 Va. 222, 427 S.E.2d 394, 407-08, cert.
denied, —- U.S. —~—, 114 S.Ct. 148, 126
L.Ed.2d 105 (1993); Edmonds v. Virginia,
229 Va. 308, 329 S.E.2d 807, 813, cert. denied,
474 US. 975, 106 S.Ct. 339, 88 L.Ed.2d 324
(1985); see also Barefoot v. Estelle, 463 U.S.
880, 896-903, 103 S.Ct. 3383, 3396-400, 77
L.Ed.2d 1090 (1983) (holding expert psychiat-
ric testimony admissible on issue of predict-
ing future dangerousness). Not only are we
bound by decisions of state courts on state
10. Dr. Centor said he reviewed police reports,
Savino’s statements to police, FBI reports of
previous convictions and sentences, the medical
questions when we sit in habeas review, Es-
telle v. McGuire, 502 US. 62, 67-68, 112
S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991),
but we find the interpretation consistent with
the constitutional standards set forth in Bu-
chanan, 483 U.S. at 410-11, 107 S.Ct. at
2911. We further conclude that Dr. Centor’s
testimony abides by these rules and princi-
ples.
At sentencing, the Commonwealth’s expert
did not disclose any statement that Savino
made during his evaluation. Dr. Centor
merely rendered an opinion as to Savino’s
future dangerousness. The doctor testified
that he based his opinion on evidence other
than Savino’s statements to him, naming
three factors that he considered—Savino’s
past criminal history, the nature of the crime,
and Savino’s history of substance abuse.
Upon cross-examination by the Common-
wealth, however, the defense expert read
aloud a fourth factor from Dr. Centor’s re-
port: Savino’s “stated conviction from an
early age that he’ll die before his time and
therefore there’s no use in trying to make
anything out of himself.” Dr. Hovermale
read the statement of her own accord.
Even if the testimony constituted error, it
was harmless. Under Virginia law, the cir-
cumstances of the criminal offense in and of
themselves may constitute sufficient evidence
of future dangerousness. Va.Code Ann.
§ 19.2-264.4(C); Delong v. Virginia, 234 Va.
357, 362 S.E.2d 669, 677 (1987), cert. denied,
485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 263
(1988). At sentencing, the Commonwealth
presented compelling evidence of Savino’s
prior criminal record and his own statements
of his criminal history. The nature of the
crime and the circumstances surrounding it
certainly revealed viciousness and danger-
ousness. Dr. Centor presented his opinion
that Savino represented a future danger, but
he specified that his opinion was based on
Savino’s criminal history and drug addiction,
as well as the nature of the crime. In addi-
tion to Savino’s statements during the evalu-
ation, Dr. Centor said he reviewed numerous
outside materials.“ Excluding Savino’s
examiner's report, Dr. Hovermale’s report, cop-
ies of twenty-six warrants for Savino’s arrest,
and photographs of the crime scene.
606 82 FEDERAL REPORTER, 3d SERIES
statements, therefore, would probably have
had little if any impact on Dr. Centor’s as-
sessment. Moreover, Dr. Centor never men-
tioned his interview with Savino upon direct
examination; he did so on only upon ques-
tioning by the defense. Thus, the alleged
error cannot be said to have had a “substan-
tial and injurious effect or influence in deter-
mining the[ ] verdict.” Brecht v. Abraham-
son, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714,
123 L.Ed.2d 353 (1993).
Consequently, we find that Savino’s consti-
tutional rights were not violated by Dr. Cen-
tor’s testimony regarding future dangerous-
ness.
Ill.
For the foregoing reasons, the district
court’s order denying habeas relief is
AFFIRMED.
O & KEY NUMBER SYSTEM
4MME
UNITED STATES of America,
Plaintiff—Appellee,
Vv.
Jay MARCUS, Defendant-—Appellant.
No. 95-5600.
United States Court of Appeals,
Fourth Circuit.
Argued March 8, 1996.
Decided May 3, 1996.
Following defendant’s guilty plea to one
count of conspiracy to defraud United States,
the United States District Court for the Dis-
trict of Maryland, Herbert N. Maletz, Senior
Judge, sitting by designation, imposed 15-
level enhancement to his base offense level
under Sentencing Guidelines for loss to vic-
tims exceeding $10 million. Defendant ap-
pealed. The Court of Appeals, Wilkins, Cir-
cuit Judge, held that district court correctly
concluded that generic drug manufacturer’s
gross sales were appropriate measure of ac-
tual loss suffered by consumers of quinidine
gluconate, in determining loss enhancement
to Sentencing Guidelines base offense level
for defendant, who was manufacturer’s presi-
dent and chief executive officer, following his
guilty plea to conspiracy to defraud United
States based on failure to notify or seek
approval from Food and Drug Administra-
tion (FDA) for modification of drug’s formu-
la. '
Affirmed.
1. Fraud €69(1)
In general, “loss” under Sentencing
Guidelines section, which provides for in-
creases in defendant’s base offense level cor-
responding to amount of economic loss suf-
fered by victims of defendant’s fraud, is the
actual, probable, or intended loss to victims.
USSG. § 2F1.1(b)(1), 18 U.S.C.A. .
See publication Words and Phrases
for other judicial constructions and def-
initions. , :
2. Fraud <=69(1)
Gain, measured either by gross sales or.
by some other gauge, does not support loss _
enhancement under Sentencing Guidelines
section, which provides for increases in de-
fendant’s base offense level corresponding to
amount of economic loss suffered by victims
of defendant’s fraud, if there was no actual;
probable, or intended loss to victims; gain is
not proxy for loss if there is none. U.S.S.G:
§ 2F1.1(b)(1), 18 U.S.C.A. ae
3. Fraud <69(1) .
Given unchallenged finding that consum-
ers would not purchase drug of unknown -
safety and efficacy at any price, district court
correctly concluded that. generic drug manu
facturer’s gross sales were appropriate mea-
sure of actual loss suffered by consumers of
quinidine gluconate, in determining loss en:
hancement to Sentencing Guidelines base of
fense level for manufacturer’s president and
chief executive officer following his guilty:
plea to conspiracy to defraud United States ~
based on failure to notify or seek approval ©
from Food and Drug Administration (FDA).
st
I ae SRS 8g TS EET
SE PME Se
iad ake a hs ‘ wri
for m
preside
mula p
valence
me known
ie § 2FI.
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ee ee
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:
604 82 FEDERAL REPORTER, 3d SERIES
chiatric evaluation by the prosecution. Jd. at
471, 101 S.Ct. at 1877.
[22,23] In Smith, the Court differentiat-
ed between a defendant who intends to intro-
duce psychiatric evidence on his own behalf
and one who “neither initiates a psychiatric
evaluation nor attempts to introduce any psy-
chiatric evidence.” Jd. at 468, 472, 101 S.Ct.
at 1875-76, 1877-78. When a defendant as-
serts a mental status defense and introduces
‘psychiatric testimony in support of that de-
fense, he may face rebuttal evidence from the
prosecution taken from his own examination
or he may be required to submit to an evalu-
ation conducted by the prosecution’s own ex-
pert. Buchanan v. Kentucky, 483 U.S. 402,
422-23, 107 S.Ct. 2906, 2917-18, 97 L.Ed.2d
336 (1987); Smith, 451 U.S. at 465, 101 S.Ct.
at 1874. That defendant has no Fifth
Amendment protection against the introduc-
tion of mental health evidence in rebuttal to.
the defense’s psychiatric evidence. Powell v.
Texas, 492 U.S. 680, 684-85, 109 S.Ct. 3146,
3149-50, 106 L.Ed.2d 551 (1989); Buchanan,
483 US. at 422-23, 107 S.Ct. at 2917-18. In
essence, the defendant waives his right to
remain silent—but not his right to notice—by
indicating that he intends to introduce psy-
chiatric testimony. Powell, 492 U.S. at 685,
109 S.Ct. at 3150. ,
[24] In Virginia, the statutory scheme set:
forth in Va.Code Ann. § 19.2-264.3:1 governs
the use of psychiatric testimony in. a capital
case.” The provisions operate to notify the
defense that its decision to introduce psychi-
atric testimony constitutes a waiver of the
defendant’s right to remain silent during ex-
amination by the Commonwealth’s mental
health examiner. The statute treats the de-
fendant’s waiver as a condition precedent to
the prosecution’s use of psychiatric evidence.
See Washington v. Murray, 952 F.2d 1472,
1480 (4th Cir.1991) (construing Virginia stat-
ute). It details the conditions under which
the Commonwealth is entitled to have an
9. In subsection A, the statute provides that upon
the request of an indigent capital defendant, the
trial court must appoint a mental health expert
to evaluate the defendant and assist the defense
with regard to the defendant's history, character,
or mental condition. According to subsection E,
a capital defendant planning to present the ex-
pert’s testimony at sentencing in support of miti-
examiner evaluate the defendant and outlines
the scope and permissible uses of that exami-
nation. Va:Code Ann. § 19.2-264.3:1(F) &
(G).
[25] In preparation for the penalty phase
of the trial, Savino’s counsel moved the court
‘ for appointment of a mental health expert,
pursuant to Va.Code Ann. § 19.2-264.3:1(A)..
Several months later, the defense gave notice
that it intended to present information from
the court-appointed expert, Dr. Lisa Hover-
male, to support a claim in mitigation.. Soon
after, the court granted.the Commonwealth’s
motion for appointment of a second expert
under § 19.2-264.3:1(F): The Common-
wealth indicated that, if Savino were convict-
ed, it would present at sentencing the report
of that expert, Dr. Arthur Centor. At the
penalty phase, Dr. Centor did testify, stating
that there was a “high probability” that’ Savi-
no would be a future danger to society. ©:
It is clear that Savino waived his Fifth ‘
Amendment rights by requesting a psychiat-
ric evaluation pursuant to the applicable stat-
ute. The - statute, both on its face and by
operation, provided the defensé with ade-
quate notice of the waiver. That notice was
supplemented by the Smith line of cases.
See Buchanan, 483 U.S. at 425, 107'S'Ct. at
2919 (stating that Smith put defense counsel
on notice of the waiver). Furthermore, both
defense counsel and the Commonwealth’s ex-
pert had warned Savino beforehand that any
information he gave to the psychiatrist could
be used in the capital sentencing phase. Un-
der our precedent, such advice precludes a
defendant’s Fifth Amendment claim. Giar-
ratano v. Procunier, 891 F.2d 483, 487-88
(4th Cir.1989), cert. denied, 498 U.S. 881, 111
S.Ct. 222, 112 L.Ed.2d 178 (1990).
The statute also provided adequate warn-
ing of the scope of the Commonwealth’s eval-
uation and the possible uses of the mental
health information gathered. While Savino
gation must notify the Cbransciyiveaith, Only
then, subsection F specifies, may the Common-
wealth seek appointment of its own expert to
examine the defendant concerning mitigating cir-
cumstances. If the defendant refuses to cooper-
ate, he may lose the right to use his own expert's
testimony in mitigation.
SA’
: Cite as
: argues that he deserved specific noti
his evaluation could be used to estab
ture dangerousness, Smith and its {}
do not require such specific notic
Woomer v. Aiken, 856 F.2d 677, 681-
@ (ir.1988), cert. denied, 489 US. 10
BE s.ct. 1560, 103 L.Bd.2d 862 (1989),
; E plied Buchanan to reject a nearly 1
E claim. There, we found no Fifth ¢
& Amendment violation because defen:
pc! had requested one mental health
e tion and consented to the other, and t
E actual notice of the examinations. Ta
= We further concluded that the Con
‘does not require that a defendant be
e cally notified that a psychiatric es
might provide a basis for a future da
ess argument. Id. Given that t
efore us are nearly identical to
Woomer, we reach the same result.
“Finally, Va.Code Ann. § 19.2-26
i Srentistes between a defendant's st:
F made during psychiatric evaluation
es opinion based upon such stz
EF The statute forbids the use of state
* disclosures made by the defendant
d capital sentencing evaluation as
* against the defendant for the pt
= proving aggravating circumstances,
= lows the use of those statements
E sures in rebuttal to issues raise:
: defense in mitigation. Va.Code An:
- 964.3:1(F) & (G). Because the sta
es not preclude use of the opinion of
monwealth’s examiner for establish
: gravating circumstance, however, ©
ae
. nia Supreme Court has determine
Py provisions permit the expert's of
ca future dangerousness. Stewart v.
> 945 Va. 222, 427 S.E.2d 394, 40°
denied, —- U.S. —, 114 S.Ct.
L.Ed.2d 105 (1993); Edmonds v.
229 Va. 303, 329 S.E.2d 807, 813, ce
474 US. 975, 106 S.Ct. 339, 88 L.
(1985); see also Barefoot v. Esteli.
880, 896-903, 103 S.Ct. 3383, 33
L.Ed.2d 1090 (1983) (holding exper
rie testimony admissible on issue
ing future dangerousness). Not ¢
bound by decisions of state cour
10. Dr. Centor said he reviewed pc
Savino’s statements to police, FB
previous convictions and sentences
SCOTT, James .
Hanged at Winchester, Virginia, on Nov. 11, 1803, for the
murder of W. C, Simmerton of Philadelphia on the public
highway on Friiday Morning, September 2, 1803, See work-
sheet - Virginia * Not written up - Bound.
Box 148. Exee. Papers of Gov.
James Scot was a tree wut fatto war. His Wetaporr was A
hichory Sth:
scot, Bi1ty (alias Dick Richard), Slave.
Henrico County, Virginia Court, 2-4-1805 - Bury
Scott, alias Dick Richard, a slave of Reuben
Jones of New Kent was charged with rape of Anna
Miller the wife of Johh Miller of Henrico, Con-
victed and sentenced to be hanged on second Fri-
day in March, 1805. The execution certified by
Deputy Sheriff Benjamin Shepherd,
PYESLOL
(State Archives, Auditor's Records, Item 153, Box
4,
]
|
a
a
\
\2, Envelope 1805.
Box 133, Exee. Papers of Gov. Crime committed on 1-28-04.
Executed at Richivond 0n 3/15/05. Valued at £100.
SCIPIO ( aye) Execulédd M-/ rd -/, Vbrd
.For the theft of a horse in the same year (1762),
Al bridgtom Jores' Scipio was hangedee." In Virginia, pro
bably Southampton County,
SOUTHAMPTON COUNTY, VIRGINIA, by Thomas C. Paramores
Charlotbesvilles University Press of Virginia, 1978; p30
page AG3ASY Southampton County Order Book /759-
Slave of Abraham Jones. Vafuaton Jo.
/76?.
SCOTT, James, hanged at Winchester, Virginia, on November 11, 1803.
"Confession of James Scott, who was executed at Winchester, Virginia, on.Friday, the
llth of November, 1803, for the murder of W. C. Simmerton of Philadelphia, on the
public highway, on Friday morning, the 2nd of September.1803: 'Just going to be
lauched into an awful.eternity; and feeling myself reconciled to the fate, which is,
in a few minutes to be inflicted, and knowing at the Late period, than an erronious
assertion. would avail nothing in.my interest in this critical moment, and would
operate generally.against the salvation of my soul in that mansion of glory, which,
XX I am persuaded I shall directly meet, I feel it a duty incumbent upon myself to
confess to the world, that 1 never was guilty of any capital crime except the one
for which 1 am now doomed to expiate. I am well convinced. that people entertain
various opinions of my having been guilty of more murders than that of the unfor-
tunate Simmerton, which I solemnly declare not to be correct in any wise, and which
I utterly deny, In order that people may have an accurate view of the murder of poor
Simmerton, I will relate the manner in which I perpetrated that horrid act. In
traveling towards Middletown, I met.Mr. Simmerton, whom I had not the least design
of injuring, except robbing him of his money (which I supposed to. be considerable,.
from the style in which he travelled.) My heart was fired with anticipations of
horror at such a diabolical violation of the laws of humanity and those of my
country, but those anticipptions were soon dispelled by others of a more brilliant
nature. I had already made my calculations of the best and most advantagedus mode
of disposing of my plunder, I followed and overtook him at the place where he was
found after being murdered = I gave him a blow on his head without the smallest wish
of its proving fatal, When I gave the blow, he uttered these words = 'I will give}!
and endeavored, at the same time, by signs to signify that if I would desist he would
give alls at that instant his chair was likely to upset, which I endeavoured to
prevent, by thrusting one of my feet against one of the wheels, but to no purpose =
it overset, and tas the means of his death. I feel myself forgiven, and am resigned
to my fate. In a few moments I expect to meet an awful and a just Gods whose mercy
I implorg fpr Jesus Christ's sake, /s/ JAMES SCOTT."
CHARLESTON COURIER, Charleston, S. C., December 28, 1803 (1:3.)
"From the Winchester, Virginia, GAZETTE 6f Sept. 6, 1803-MURDER & ROBBERY! Mr,
Bowen, Being in Yhenandoah County on Friday evening last, I was informed that a
most atrocious murder and robbery had been committed on the body of a travelling
gentleman a little above Stovertown, on the main road. Impelled by curiosity as
well aa duty, I rode with several genthemen to view the body, early on yesterday
morning.
"Upon examination we found that he had received a violent blow upon the head, just
above the left ear, the contusion was as large as the palm of a man's hand, there
were several other MHX¥XX wounds on the head, and a bruise on the breast, The
attack was made about nine o'clock, a,m., not more that 270 pases from Mr. Jacob
Snapp s, and he expired about twelve, He was found weltering in his blood, a few
minutes after, by two Germans = when they came up, they enoguired what was the matter?
He replied that he had been robbed by a negrp or mulatto man, and immediately faint-
ed, One of these strangers ran to Mr, Snapp s, while the other remained with him,
fhe larm was immediately given, and notice sent to P. Spangler, a megistrate, who
made use of every exertion to discover the perpetrator of this horrid crime, but
without effect. Two personsyare suspected, one a mulatbo fellow, who, it appears,
was travelling toward& Rockingham, and lives at Holker's plantation, in this county;
the other calles himself James Scott, a feww mulatto, who has lived some time near
Middletown, Pursuit was made after the first, but the posse had not returned last
evening; but by the information of some travellers, it appears that the follow had
left the road, and was not taken early yesterday morning, Scott was apprehended on
suspicion, examined before two magistrates, and committed to jail, I, however, in-
cline to believe that he is not guilty, and that it is more probable that the first
mentioned fellow committed the murder, He is said to be a tall dark mulatto,
stoops much in his walk, is blind of an eye, and was dressed in coarse linen clothes
- carried a budget and a large club, The stick with which the murder was committed
was a dead hickory - it was found near the deceased, with the hair adhering to the
big end from the violence of the blow, JI am informed the above described fellow was
noticed to have used such a club as a walking stick.
} Lee eer \
JaCKsON,
1 a). 7 all i { r * 1 ie | t ’ x *
a ae Av ae ft Aye) AN i { Tg t \
| AMEN A PEN A | att
‘Bd a Ay Swe (ba if: aly, fruh
a Pn Says ? ii
Hs insane
sett Sanaa eel aati Gemeente eae 2g abatiaiens S: sesame aipeS es) sk", eee Fone
Joe and SHELL, yonH ‘ble .cks, electrocuted Virginia State Prhson ‘
(Spottsylvaria County) on 2/21/1936, aa oe
ILING THE 2
: Workmen and special officers dig for the. .
bodies and additional clews as Common- t
wealth’s Attorney E, R. Carner takes notes. ‘ty
Above, Loney Tip tries to find some sort. we
“» Of consolation after his detective feat ° «-
ua
26
for nearly a lifetime, Although his ‘long:
service and devotion to the murdered .
culiple was common knowledge in the
community, | determined to take nothing
for ranted, However,’ Braxton answered
all questions J threw at him: with candor.”
and honesty, I believed him, Moreover, :
he furnished an iron-clad alibi,» As | was
about to leave,‘he stopped me. - .
“Wait jest a minute, Sheriff. I'’se for-’,
ot to tell you somethin’ | jest remem-’
red,” he said. He hesitated for a mo-;
ment. “Sheriff, dar’s: somebody else dat
worked for Mister Coleman, but dat been:
over a year ago come dis Fall.” tt
“Who: was he?” | asked quickly, The
apprehensive manner in which ‘Tom made
that statement. aroused: my curiosity and
interesteje3¢ 052 SUN 2 Semen
“You gotta promise. me somethin’,
Sheriff. Don’t let on I even sed his name!
He might git ideas I sed mo’n I did, ’en:
and |. ain’t lookin’ foh’ no-.trouble, yas: :
suh. He's a big nigger ‘en he gits pow ful °
mad sometimes.” | ue
“Well, who is it?”. | asked somewhat im<
patiently. : BAA ed a ‘
“His name’s {ge Jackson. He lives ’bout
a mile from Mister Coleman's place, jest.”
off U. S. Highway I, de house settin’ back:
Z
off de road. ‘ : Bs
“How -long did Jackson work for’ the
Colemans?” | asked him. 2. 0 °°? fs:
“Oh, not. very. long.”
“What kind of worker was he? Was his
work satisfactory, Tom—insofar: as you .”
know? :
“1
much, Joe Jackson was a big, quiet nigger, °
but sometimes he got pow’fu
mad, -’en: his eyes would git’ big and.
black—"- +} . a
“All right, Tom—and thanks.” 1 -hur-
ried away and lost little time in getting
to the house of Joe: Jackson. One lea
was as good as another, and the-Negro
that “got powful mad”. might be ‘worth
investigating. . ‘ iat
Arriving at Jackson’s home, | quickly :
noted there were no signs of activity. The
door and windows were closed. | knocked
on the door for several minutes. There,
was no answer, only the chirp of crickets
and the rustling of leaves. The house gave.‘
every appearance of being deserted for the
time being. Near by: stood a small cottage.
I walked up and inquired of a portly col-
ored woman who answered my knock as
to whether Joe Jackson might bi
home at any time soon, ; :
“No, suh,” she answered, with an em-
phatic shake of her head. “Joe Jackson:
done moved to Fredericksburg a bit ago.”
No, she had no idea, she said, .as to just”
where in Fredericksburg he had moved. °
However, ‘I wasn’t particularly worried as
to finding his new .residence. Virtually all
the inhabitants of the colored district in
the town know one another either fairly
intimately or by hearsay. a
.
Driving back to Fredericksburg, I soon
earned where Joe Jackson lived. Due in-
quiry of the occupants of. the house:
brought forth the rather startling infor-~
mation that. Jackson :
since yesterday afternoon (the evening o!
the murder) and that his present where-":
abouts was unknown. My interest in Joe.
Jackson rose several ‘degrees. Believing
now that Jackson was deserving of some
attention, | endeavored to trace him, and
as the hours rolled by I was forced to
concede. that the results were. decidedly
disappointing. = -* i.
Early the next morning, as the first rays
of dawning sunlight began to_ pierce
through a murky fog, the telephone
shrilled loudly in my home. It was a long-
distance call from Police Headquarters in
Richmond reporting that the escape car of.
the killers had beep found! Perhaps here : of
was the break we were hunting. | dressed.
hurriedly, called one of my deputies,
Walker Burgess, and after leaving instruc- -
tions for him to continue the search for .
Jackson, I sped toward Richmond.
An hour and a half later Captain of
Detectives Alex Wright informed me at ,
the. Richmond Headquarters that. the
abandoned car had been found on. East,’
Clay Street about 2 o'clock
by a cruising squad car.
who or how many had occu
prior to its abandonment had been dis-:
covered up until that time. A finger-print .
expert from the identification bureau had,
endeavored vainly: to obtain finger-prints-
30 .
No clew as to:
guess so, Sheriff. Least I) never’.
heerd Mister’ Coleman complain awful :;
mad, ‘real »,:
in the morning.‘
ied the Ford. + Mrs. Coleman, T
from the car, Captain Wright told me;
and despite the fact that every Inch of the
“gedan had been gone over, nota single
clear print, could be located, *
Te began to seem aa If misfortune were
dogging our - footsteps, An abundance of
half-clews and. snipped-off in
else, Leaving the Headquarters building, ,
drove to the location on East Clay Strect
where the car had been found, In the
neighborhood were several all-night lunch-
“rooms and small restaurants catering to
Richmond’s “little Harlem,” | commenced
questioning the proprietors and waiters at
several. of. these restaurants. Finally
“came upon ‘Richard Vaughan, proprictor
.
Jackson, the “black man”
of the wanted pair
“Joe
‘of the Tokio Restaurant, who leaned
“across the counter and gave me the fol-
lowing information.) G25:
“Yeah, I remember: seeing them—one
yellow fellow and one black fellow. They
came in here ‘twice last Tuesday night.
First time was about 12:30, when they
ordered some fish and pork-chops. While
eating they tried to get fresh with the
girl that works here. They asked me where
expected, ; ro get some whiskey. | told them
ved di
n't know. They came back about 2
o'clock in the morning and ordered sorhe
‘yocha’—that’s : a. Chinese noodle dish
: that’s supposed. to be quite gelataie if
‘ou've had several under the elt. They
“had been drinking, and they hung around
for quite some time still trying to date
the girl up. Finally they got into a Ford
sedan that I noticed standing in front of
the place, Yeah, it was a Model A, dark
lor, just like you said.” -
As soon as Vaughan commenced telling
“me. of his early-morning customers,
‘gan to believe | was hot on the trail of
the escaped. convicts;: but when I. asked
had not been home:.: ory eros to describe as: carefully as he
¥ coul
; “the yellow: and the black fellow,”
the description he gave me tallied in no
“respect whatsoever with the description
we had of. Reese*and' Williams, the sus-
pected killers. - * ;
. Here was a puzzle. Haislop, the filling-
‘station operator, c
in a Ford sedan unmistakably the Cole-
“man machine. His description of the occu-
pants bore. marked similarities | to the
description of the pair, we were Laman
Later that same. evening Vaughan ‘sells,
foed to the same two men who descended
from the tell-tale.car, and his description
‘js totally at variance with the one we had
the suspects. Ostensibly, one of the two
“men had observed the pair casually, with
a resultant recollection that was none too
clear;. the. other had ‘observed quite
closely, with a resulting es description—
or was it possible that there had been two
different sets of men in each instance?
‘Later in the day the question was an-
~swered with dramatic suddenness. Loud-
speakers throughout .the city began an-
‘nouncing the apprehension of Reese and
“Williams, .suspected killers of Mr. and
hey had been taken into
‘custody near Alexandria, and repeatedly
had denied any knowledge of the Coleman
crime. | immediately sent a wire to the
Alexandria’ authorities. and: learned that
1. the party at the door—and
. something was wrong. There was. Haislop
had asserted that Reese and Williams were
not the men’ who purchased gas for the
‘to know whether Vaughan,
: Restaurant, would refute Haislop’s. identi-
“We rushed
4. Feeling was rising to the boi ing
‘and around Fredericksburg,
’ Williams’ a
"ances,
- frequent company with one John Shell,
had sold gas to two men..
that type of shoe in my store!”
the men were being hurried to ‘Vhornsburg
for possible identification by Halslop, the
filling-station operator, sent another
wire reporting that | had uncovered ane
other withes who had been lin the pres,
ence of the suspected slayers the night o
the murder, and arranged to meet the offi-
cers in charge of Reese and Willams,
Impatiently | waited their arrival. Late
in the evening a car roared up in front of
the Richmond Police Headquarters, carry-
ing several Fredericksburg police and de-
tectives, and two Negroes securely mane
acled with chains and handeutfs, { met
sensed that
Model A sedan, the Coleman car, the
night of the murder! | became anxious
at the Tokio
fication. : beste
the Negroes to the restau-
rant, Vaughan and the waitress also de-
clared that the convicts failed:to resemble
even ney
rant! -And that was that—to our great
ae sige 4 :
‘There was only one thing left. to do,
namely to start another line of investiga-
.tion along our second theory. The finger
of suspicion again: swung’ in the direction
of Joe Jackson, the man that got pow'ful
*, mad
ad. :
Quick: action was becomin imperative.
point in
( the flames
being fed «4 the splinters of Reese and
solvement of blame. in the
killings. We were being goaded on every
side, and barrage after barrage of strong
and often vituperative criticism was
hurled at us for our failure to crack the
case.
We began a widespread and intensive
hunt for Jackson, also for his mysterious
ally in crime. In the process of checking
on Jackson’s former friends ‘and acquaint-
I learned that he had been seen in
and had fished and played with him
on numerous occasions. Shell was de-
scribed as a man of medium height with
an co gine yellow complexion. | remem-
bered a an’s mention of a “black and
yellow fellow,” and Haislop’s. assertion.
that one of the men he saw was light in
color for a Negro. 2 :
All day Friday and Saturday we worked
to uncover the trail of Jackson and his
pal, John Shell, but failed to find a single
clew as to their whereabouts. Then after
nearly ‘a week of protracted - disappoint-
ment, and silently enduring the bombard-
+ ment of public criticism that, each aay
rose in proportion with continued fai
ure, the first big break came—quite inau-
spiciously. Early Sunday morning Chief
Perry called me by telephone to inform
me that Joe Jackson had walked into the
lice ‘station with ‘the remark, “I done
eard Blaydes wants to see me!” ... I did,
and er ; i
I asked Perry to clap Jackson in a cell
the men who emerged from.
- the Ford sedan and came into the restau-
and await my coming. Arriving at the jail. .
“1 found the suspected killer already pro-
‘testing what he deemed an unwarranted:
V
arrest. He was about 23 years old, with a’
large face, protruding ears, and almost
coal-black in color. | immediately started °
to —— him. He denied any knowledge
of the brutal murder of the elderly Couple.
“Anybody that thinks I done that: is
crazy,” he stated vehemently. wo
-In the course of the questioning Jack-
son asserted that during the time we were
hunting for him, he was working on a
farm in Stafford County. | carried him in .
my car to Staffordand asked him to
point out the farm. This he was unable
to do. Driving back to Fredericksburg |
me Jackson where he had obtained the
shiny
plied that he had purchased the shoes at
Chrismond’s Shoe Store, in Fredericks-
burg. ‘Arriving back in-town, I drove over
to the home of H._F. Chrismond, proprie-
tor of the store. Finding Mr. Chrismond
in, I asked him if he recollected selling the
shoes to Jackson. Chrismond bent down,
inspected the shoes, and shook his head. ~
“Sheriff,” he said, “I’ve never carried
Then Jackson, it appeared, was lying. |
carried him back to the jail and despite
a terrific grilling throughout Sunday after-
lack shoes he was wearing. He re-"
.
noon, he persisted in declaring ignorance - -
of anything pertaining to the crime, If
he was our man, We had work 2
Jackson showed not the slightest sign of
bar rg and apllling a confesdon,
-'On the following day, Monday, 1,
began to scour the neighborhood in the
vicinity of the crime, endeavoring to Une
earth any workable clew, and now the
gods of fortune smiled benignly. 1 found
two Negro youths near Massaponax who
stated that they saw “a black man and a’
vellow man get off the five o'clock bus:
Tuesday evening,” and that the two had
hurried across a field towards the Cole-
man reisdence.
Confronting Jackson at the jail, the’
Youths ‘immediately identified him as the °°’
lack man, and as one of the pair to-leave
the bus at Massaponax!
Jackson heatedly refuted all the state- .,
ments of the youths, shouting they were
“nothing but ‘li ¢ n
for two hours, and finally, with perspira-
tion streaming from his face, he sullenly’
confessed that he did get off the bus near
a field adjoining the Coleman farm, but
in the same breath vehemently asserted
that he had refused to go with the other
man and had returned to Fredericksburg
soon after alighting from the bus.
“Then you were with another man when.
pote the bus. Who was that man?”
asked him.
“Tohn Shell,” came the sudden reply.
Elated, | now felt that we were getting |
somewhere. A lot of stray numbers were
beginning to add up. Jackson with his lies
and-evasions was guilty as sin. I felt cer-:
tain of that. John Shell, the mysterious
yellow man, was his fiendish partner in
crime. Jackson was ripe for an indictment,
but I wanted Shell too. From several’
sources had come the information that
Jackson’s pool-playing crony possessed un-
usual cunning and intelligence for an un- —
educated Negro; hardly good medicine for
encouragement especially when J’ remem-,
bered that Shell had several days’ start.
Immediate efforts to trace Shell dis-
closed the fact that he had been employed
agali' +s
ars.” | hammered at him’ .’
ahead, . |
at the Montgomery-Ward: store in Fred- : “:**
ericksburg as a defiveryman, and that he
had been ‘discharged on the Saturday
night prior-to the commission of the crime
for which he was sus
‘employers knew: nothing of: his_ present
whereabouts, asserting that the Saturday.
ted, His former .
night of his discharge was the last they -”
saw of him. Jackson, although professing -
not to know the exact number of Shell’s
house in Fredericksburg, furnished us with
sufficient information to locate the place.
I was very little surprised; upon our ar-
rival, to find the house deserted. Inqui
‘of his neighbors revealed that Shell hadnt
been seen for a: week. His wife and two
children had left Thursday night for an
unknown destination. @
I scoured the colored pool-rooms in °
Fredericksburg and, among other things
of diverse significance, learned that Shell
had originally resided in Danville, in the
“Southwestern part of Virginia, Believing
he might have fled’ to et city, I pro-
ceeded there and enlisted the aid of Chief
of Police J. H. Martin and several detec-
-tives, A ‘careful search of Shell’s old
haunts led nowhere. He had not been seen.
Martin informed me a bit later that the
ellow man was no novice in crime. Head-
_ing the list of along criminal record was a
I5-year sentence for raping a young girl ©
in Pennsylvania.
_ The suspected killer’s complete record, B s
I learned, was on file at the Virginia State
Penitentiary. Swinging back to Richmond,
I obtained. Shell’s description, photo-
graph, and a set of fingerprints, and then
returned to Fredericksburg to arrange for
.a general alarm.
Whether Shell was in hiding in the ite
vicinity of Fredericksburg or whether he ©
had left town immediately after the crime,
was of course a moot question. However,
the fact that his wife and two children had
also vanished without word or trace led
me to reason that he had fled the vicinity
and taken them along.
In checking over ticket sales at. the ~
R. F. & P. depot and the Greyhound bus
terminal, we were able to. weed out three *
ossibilities, One,.a-tall, bespectacled, rest-. -:
to Trenton, I Another, a heavyset,
aa built ji
‘are to Washington. The third, a Negro
woman with two children, who had pur-" -
less-appearing te who bought. a ticket
egro who purchased aes
re
et once
bl
accompanied by a woman and two small ts
he al
”
thily described -
had shi
slid from: the
time the agent repo ;
had been claimed on
n
. Robinson:
ad
York, ”
ed kind - of
later a: silent cordon: of ‘Mamaroneck po- 3 .
t sure if that’s the“:
‘lice ‘officers ‘and’ detectives,’ ‘armed -with’
‘. automatic rifles and tear gas, surrounded: BN RSMO Le, oe
the silent and dilapidated house of Char-'::: It seemed like a lead that would pay
lie Stanfield. ° Without . further “ado we--off.We: hurried: to the ferry. terminal on
.. broke into the house and found Stanfield: the” Jersey side; where in unbelievably
- alone in bed in an upper bedroom. :He ‘ short time:.we found a: porter who | re-
jumped up, startled, fear-and resentment” ported -having loaded bags similar to our
written on his face. 2s “ose man’s, on a train bound for Haverstraw,
‘+ “Stanfield, where is John Shell?!":1 as a beck Tes aR arts
him. BPN r ,
. “John Shell? “What. John, Shell
2 Ve on Meas “ Pa
«“saye'We caught the: first train to Haver-
ys f straw. Arriving there we moved swiftly to
-* talking about?” he countered. (8-950 9°CRU%' pick up the trail. But none of the bag-
-~ “You know what John Shell,” put in: gage room. employees could: recall having
Burgess grimly,’ “the John’ Shell ‘with: seen Shell or_ any luggage answering our
whom you used to steal cattle and sell it“: description. Then we went to our old
;, across the Dan River, in North Carolina.”= :friends,’ the cab-drivers, - Again — they:
3” At this sudden revelation’ of his shady* proved a veritable God-send. One imme-
past, Stanfield,. who some time .ago had’ diately identified. the picture of Shell as:
“fled Pittsylvania County, to avoid arrest,’..the man he had taken toa house a_half ’
appeared to wilt with fear. But he denied: ‘mile from. Haverstraw!
knowing anything as to the whereabouts:::* The ‘trail had: grown red-hot again.:
of Shell, asserting he hadn’t seen him in “We're on’ our way!” said Deputy Bur--
: three or four years. Taken-to the local : ;
.
gess latedly. :
Nt
‘over. Eddie Whitfield, but he found no
new evidence; naturally | felt that | had
done my work rather well, but I. was.
-which I labeled and dated in order that:
cL might use it for evidence later in court:
“if a case ‘against: Eddie.*Whitfield ever
came to trial, gee rene nevertheless disappointed that we did not
The broken’ fir,needle I had removed have more. ; :
‘from the only place where it would be. ° “Nothing to feel bad about yet, Sheriff,”
« possible to hide even so small’an’ object’ consoled Mr. May. “We are merely trying
on the nude body of a man; I'considered: .to arrive at the truth, and if Eddie Whit- °
field isn’t our man the sooner we eliminate
it an important clew, but one which should
be turned over to a criminologist; so when; «him from the picture the better it will, be.
had finished my examination | went to.."Then we can go on and find the right
‘the telephone. and called Luke S.° May, trail.” ; + edie eae
Seattle: criminologist, and-asked “him -to:*°: The’ autopsy, performed on the dead
“come to Vancouver at ‘once, It was mid- ‘girl by Doctor Robert L. Benson of Port-
night, but he dressed“and drove the 200 .:land, Oregon, across the river from my
‘miles to Vancouver that night." “town; by Doctor Blair of Vancouver and °
.. The ‘next, morning Mr. May ‘also*went®,Mr:..May, ‘revealed. that the murder chad
7
‘
rted that the. .
- “the yellow man,” cursin
_-endeavore
’ the. dresser. A. woman’s handbag, which.
‘Governor Perry, we returned
«But there was no time to. be lost. In
“gompany with the cabedriver: we hurricd
to the Haverstraw Headquarters whore
olice officials unhesitatingly consented to
velp us in picking up our quarry, About
fivesthirly In dhe evening the cubedriver
folutey out the old brick house to whic
re had taken the fleeing suspect, No one
was around, Silently and swiftly, heavily
armed oflicers and: detectives deployed
and myself
around the house,
Burgess, a local officer
walked up to the door and knocked, Com-
plete silence was our. answer, We broke
into the front door and_ simultaneously
heard a commotion in the rear of the
A * John. Shell, the “yellow man”: wf
.. who skipped to far places : th
ps TY oe oe
Noe he ou:
orward and came u
house. We rushed f
and strugg
violently in the arms of ‘several oflicers
who had pounced upon him as he had:
to escape through the rear, :~+
Shell refused to talk, either'to deny or
confess guilt... Once he: sneered defiantly,
“You-can do ‘as you please, Go ahead
and kill me—I don’t care.”.°* 00 2p"
: Searching ‘the ‘house, we came upon
Shell’s wife .and children, quietly fearful. :
I We let them alone, In the bedroom which.
‘ Shell had occupied’ we found an empty:
watch-case with the initials “J.T.C.,”:on:
we believed had belonged to Mrs. Cole-
man, was also found. But efforts to find
aver. evidence of guilt proved fruit-
ea mi pareie ess aes dire
In the face of a severe grilling at the
local jail, Shell maintained a defiant si-
lence, He refused’ to talk or to answer
questions; furthermore, refused to return,
to. Virginia without extradition - papers.
He meant to make a fight of it, -
We had the suspected slayer locked up
in the Rockland: County ‘jail and went
back to Virginia to arrange for extradi-
tion. Procuring the necessary papers from
j to. New
York. On April 30 John'Shell, sullen as a
thundercloud, returned to Virginia with us,
Shell was imprisoned ‘in the: Henrico
County jail in Richmond, where we had
taken Jackson before revealing to the pub-
lic the fact that he was one of a pair.
under suspicion for the murder. of_ the
- Colemans. Had we taken either to Fred-
Damned by a Broken Fir Needle (Continued from Page 19).
been a most brutal one. The girl had not
died from the results. of the assault; she
had been killed by a knife slash which:
-laid open the arteries literally from ear
to ear, - : : it,
From the amount of blood about we
could be’ almost certain that: the death
wound had not been made -until the big
rock had been reached. And this led us
to the conclusion that the girl probably
had been struck a: telling:
she first met up with the rapist.
A further examination of the girl’s head
revealed that she had been hit hard over
the left temple. The hairs had been
crushed, not severed by a knife; the edges
* guilt, On
. John ‘Shel
: outbreak that promised to. flare forth w
ya deg
pon
Sow or had :
: been strangled prior to that, at the time™
- 2" thorough going over,
ericksburg, | felt contldent that a tub -
would have made every effort to tear
them apart, ‘Thole tendlah aasiult upon. >
Mrs, Coleman had hardly been forgotten, °,
We put Shell fares three days of ine
tense gelling and flnully obtalved hiy cone
fession. Jackson previously had placed all,
the blame for the two killings on Shell, |
asserting he had stayed at the rond while |.
his partner committed the assortment of.
unspeakable crimes, We confronted one’
with the other at the Henrico Jail, and»
their anger at each other became white: -
hot, each believing the other was attempt.“
ing to place full blame on the shoulders’.
of ‘the other, They strained:and frothed.‘:
in our arms as we held them, cursing and
reviling each other. Shell vehemently as...
serted that ‘Jackson went’ into the Cole-.-
man house and held the gun_on the elderly
couple, that he placed Mr.’Coleman in the,
well’ alive, and ‘that’ when he ‘(Shell)’;
started to pull him up, Jackson had :
cried:. “Don’t do’ that—he knows’ me!”—1""
and shot him. Later on the two altered’.
their confessions to the extent that. we,";
were able to make an exact reconstruc-"»
tion of the crime, as narrated in the first
part.of this story. i
‘We prepared our case. to show equal:
13 14 trial of Joe Jackson and -;
or,the: atrocious slaying of.
rs and Mrs.*-Coleman _begam...in .. his-?.
- toric . Spottsylvania’ County Courthouse.5-
Throngs crowded the spacious and shadyz?
greens in front: of. the courthouse; fightingiz,
to gain‘ entrance into the packed ‘court='.:
-room, * Frequently: from ‘various points>.,
were. heard hoarse : epithets directed;*
- against: the. killers.. State. teeeers. -armed:,”
with tear gas, surrounded. the building in-;:,
side and*out, alert and ready to’ quel ee
it!
each passing minute.
<< "The trial consumed a single. day. Late.*
in the: evening the’ jury brought in the.:
verdict of guilty of, murder in the first
ree, ty. «e : ee
‘Il sentence you to death for Spottsyl-.:
vania’s. most inhuman. crime,” Judge: :
Frederick W. Coleman told the manacled;
prisoners... “Death is light’ sentence.. for...
such heinous murders.”. | a aE
$<..Immediately: atter” the trial “the con.
‘'victed ‘slayers, ‘surrounded’ by police and:
~ State troopers holding tear gas bombs in :
*-, readiness, were spirited out of a-rear en-"
trance and hurried to Richmond ‘to. await:
*-death:in the chair on June 21. Two days:
' before. the date they were. granted a re.
prieve until July 26..In the interim they’
were granted another: reprieve, and July:
26 iis with the slayers still. incarcer-/ -
-‘ated‘ in -the ‘State Penitentiary, having:
- been degen a respite until August 31.
But that day arrived with the murderers”.
-“in possession: -of ‘a.'stay of, execution till.
a fourth:
September 17, on which da
ebruary 21,
reprieve was granted until
The people of Fredericksburg and
Spottsylvania County ‘are becoming irked.
at the repeated stays of exe Rion granted
‘to the men whom Prosecutor Carner pre-"
viously had described as inhuman, mad.
“dogs of the worst type. On street corners:
and in the drug stores in Fredericksburg’
the conversation invariably turns to. Shel
and Jackson—and the ominous possibility -
‘ of speeding an avenging caravan to Rich-
mond in the dead of night. The writer has:
heard discussions in such vein. They aren’t-,
fairy tales, Fredericksburg, seething with ©
anger, wants Jackson and Shell to pay in-
full for their fiendish crime. In all prob-.
ability they will. Pe oe By
‘
were bruised, not. cut. That meant that
some other weapon had been used beside
the knife, and since. no sharp abrasion
shdwed in the skin, we believed it had
been a blackjack or a sap of some sort,
Turning back the skin over the temple,-
the doctors found that the skull had been.
crushed, and that pieces of the bone had
‘been driven into the brain; some sound _.
object had made the indentation. =.
oth Mr, May and myself were anxious
to- give the old’ Tukes homestead a’
but I had begun to:
hear rumblings of mob violence, and I'd:
better remove my prisoner first. I took
‘him to Tacoma for safekeeping. When |
got back to Vancouver I found that the:
ae,
Below: is Prosecutor’ -
pointing to- the 'well.; Compare;
this picture with the one on page.
-°26 for a” detailed idea of the
well:-— and the ‘super-human <
strength of the killers who used °
“it for a grave = :
Re
Colemans!
*’ News’of the slaying, the most brutal. inthe history
of spesteens ‘County, was relayed to me. first at
Richmond, ‘whe: ndin tin
ness at the United States District Court. Receiving the
I -terminated my. business at».the court and - shortly
afterwards |-was burning up the highway to Fredericks-
burg. ..°: m en, “i wee
; REACHING the’ scene of the crime about 2:30 o'clock
: in: the -afternoon, I . found: that Commonwealth’s
‘Attorney, E. R. Carner, County Coroner W: A. Harris,
sisted by several county. and. city. officers, already had
‘concluded a minute examination: of..the ‘house, : well,
_ garage, and surrounding grounds, The
that they .were gazing into the watery. tomb of the:
‘ CaS oe ‘yis°98 car, and his recollection of its occupants is a good de-.,
“scription of two convicts who overpowered and nearly; <
*’ killed a Fluvanna’ County pert, vane he was taking ©
‘where | was attending to some routine. busi-"
long-distance call afew’ minutes after noon of April 3, .
and Chief of Police S. E, Berry, of Fredericksburg, as- . ; t
“~ theory; namely, the possibility that, the killer or killers
»= ‘knew. something concerning the habits of the Colemans, . -
bodies -had been:
nal
NYS a! |
hauled out of the well and turned over to a Fredericks
-burg undertaker. Carner, Spottsylvania’s able Prosecut-
y
‘him ‘out.
rimly; “but dogs with
ust about concluded there was more than one person
involved in the crime. The evidence we've athered
— to that. theory conclusively.. We’ve combed the
-house and the grounds and we've failed to dig up a
‘single, solitary clew as to the identity of the killers.
“struggle—leading us to believe the. actual killing: took
“place outside the house. The Coleman car, a Model A
Ford -sedan, is missing from the garage, and Braxton
* tells us that a shotgun which Mr. leman always kept
‘in the house is also missing. Chief Perry has left for
HERE are no bloodstains to be found anywhere, no
“SF T+ shotgun pellets in, the house, and very few signs of
ty
The ‘Tokio’ Ca
‘the ‘killers’ went, ‘to: eat: ¢
‘murder night—and: where. they feft. in-:
‘a 2delible, traces, of thelr
7
“The ‘question was, had some transient” crimin:
««"chanced upon the home of the elderly couple and poure
ing Attorney, had taken ‘extensive notes on the morn-.”
Bo oes
- “It looks like two, perhaps more, of the maddest ,
‘dogs that ever* roamed Spottsylvania County hit: this :
- house‘ last night,” said Carner
‘the cunning that madness often lends so liberally. We've .
-ing’s preliminary investigation, and | immediately sought -
a trail of bloody horror upon the mere suspicion: th
the couple might have a sum of money hidden away
Or had the killers, convinced there was money conceale
in the house, aware of the fact that the ‘aged coup!
were alone, boldly entered the place and committed the
‘savage crime? Here were two theories, both tenable, bu
each obviously entailing a different line of investig:
tion. ‘ : ; im
Further, where was the dog when the killings:
"curred?
_the car and to bring back a pea Pal ‘expert. Frankly,
1 don’t believe there is a clear finger print in the house,
“On-the other hand,” Carner continued, “I. think °
“we've got a good lead. A fellow by the name of Haislop, .
station at Thornsbutg, has already
0 o'clock last night two
who runs a fillin
reported to us that about
‘Negroes in a Ford sedan stopped to get
“scription ‘of the Ford corresponds with the Coleman
‘them to the State Penitentiary. We've found out that
‘their names are James Williams and Connie Reese, two
of the hardest-boiled birds that ever tried to get-away.
‘There’s_no telling what they may do next—we've got...”
to get Reese and Williams!’
After hearing all the details of the investigation Li.
began to sort the odds and ends. | felt that Carner and
the Fredericksburg authorities, who shared his belief in
- the guilt of the escaped convicts, were probably right. :
as. His de- -
RTS
However, the fact that the perpetrators of the shock- ‘
ing crime had chosen the Coleman home for robbery,
«Richmond ‘to arrange. for a broadcast description of --
of all the houses in the vicinity, pointed to another ~’
and to what extent the house was protected.
of the Richmon
* clear, . finger-print,
Meanwhile Chief Perry, in cooperation, with tt
Richmond police and the two radio stations, WRV.
and WMBG, had sent an alarm over the entire Atlant:
seaboard, Strident tones crackled from loudspeakers i
homes throughout Virginia and neighboring states, d:
tailing news of the bruta, slayings, together with
‘description of the stolen cM and the suspected -killer
- Immediate notification of local authorities was urge
should the car, be spotted.: State ‘and city police’ we:
rushed’ to all highways leading from Richmond, and tl
most widespread and sensational manhunt. since ‘tt
‘flight from the Richmond City Jail of Walter Legen:
and Robert Mais, notorious Tri-State gangsters, .w.
under wayl’ : w ote tact)
ran F : ‘ Stee 2p
CHIEF R. B. JORDAN, head of: the Richmond polic
had agreed to Chief Perry’s request, for the detz
of Detecy ve Serene J. M. Wright, finger-print expe
r Bureau of Identification, to work wi’
Spottsylvania authorities, Arriving at the crime scen
Detective Wright immediately set to work, and to o
great ‘disappointment he was unable to obtain a sing
» We. could expect - no~--he
here. ° S ws ats nett
that-almost every police power in the Sta
ted toward the apprehension of Reese ar
"Making the advent of a striking innovation upon the method of executing criminals in
Virginia, Henry Smith, alias .Oscar Perry, a Portsmouth negro, will die in the new.
electric chair at the penitentiary this morning, paying the penalty for a most revolt-
ing crime, The exact hour of the execution’ has not been made public, though it will
very probably take place before 10 o'clock, .The chair was completed some weeks ago,
and has been thoroughly tested by experts, It is therefore believed that no hitch
will arise and that the matter will quietly end. The negro, who will be fhe first to
die in:the chair, was convicted-of a most heinous crime, He assaulted a poor old
woman, 75 years of age, and then robbed her house. Smith has recently made a full
confession and realizes that he must die for his crime. The new law changing the mode
of execution from hanging to death by electricity was the result of a joint effort on
the part of Delegates Throckmorton of Henrico and Williams of Northampton, at the last
session of the Legislature, The former offered a bill providing. that all executions be
at the State:prison , and the latter got on an amendment that they be by electrocution,
instead of by hanging. Superintendent E. F. Morgan will have charge of the. execution
and it is within his discretion to say what persons shall be admitted as witnesses,
the only provise in the law being that outside of: the penitentiary CES aaMS the
number shall be'confined to "twelve reputable citizens,"
TIMES=DISPATCH, Richmond, Virginia, : October 13, 1908 (12:2.
"(Special to the Times Dispatch.) Norfolk, VA, September 28, = Henry Smith, condemned
to death in the electric chair on the charge of assaulting aged Mrs. Albert Powell, this
afternoon, as he was being prepared for his journey to Richmond, where he will go to
the electric chair, confessed to peomalbibeiciea admitting that he committed both assaults
within two weeks of each other,"
TIMES- DISPATCH, R,chmond, Virginia, September 29, 1908 (2/5.
SMITH, Henry, black, 22, electrocuted Virgihia .(Norfolk Co.) on October 13, 1908,
"Norfolk, Va., Aug. 12, 1908-An unknown negro Tuesday attacked with a knife in her
Prentiss place home, Mrs, Katharine Powell, aged 78 years, and after overpowering the
defenseless woman, assaulted her, leaving her,in-a serious condition, This is the
2nd time in 2 weeks that the aged woman.has been similarly assaulted in her home
by a negro, Feeling is intense, A posse is in pursuit," JOURNAL, Atlanta, Ga.,
August 12, 1908, page two column seven, :
ATTEMPT TO LYNCH
"Norfolk, VA, .8-15-1908-a mob of more than 300 men attacked the Portsmouth jail at
lo clock this morning, bent on lynching William King and Henry Smith, both negroes,
who*were held on the charge of criminally assaulting Mrs, “atharine Powell, aged
white woman, last Mondy, The negroes had been, removed to Norfolk, jail earlier in
the evening for safekeeping.
"The mob forced the doors of the jail, but were met by Deputy Sheriff Huybert and a
score of officers, of whom the the cell keys were demanded, and refused, ‘he crowd
was forced back by the policemen with drawn weapons, and the fire department was _
called out to disperse the mob with the hose, ; ; .
"Under orders of Mayor Reed, the police arrested Wade Codd, Martin L. ‘estbrook, and
T. O« Williams, white men, and a half-score of negroes, as ringleaders, Warrants
have been issued for MAXXXMMAAKAA a half-hundred more, ,
"At 2.a.m., the crowd had left the vicinity of the jail, and it is reported that they
are congregating elsewhere and intend to march to Norfolk and attack the jail, in
the hope of securing the prisoners. . . 1 : Ae ~
"Qué&et prevails in Portsmouth today following the jail attack last night by a mob
who sought the negro assailants of Mrs, Albert Powekl, o f Prentiss Place, after
the prisoners had, without theknowledge of the mob, been brought to Norfolk for
safe-keepinge
"Henry Smith, alias Oscar Perry, the negro charged with the assault upon Mrs, Powell,
was today held to the grand jury. Smith admitted breaking into the Powell house,
robbed it and had a struggle with the woman, and made only slight denaal of the
assault,
"Ten men, eight white, and two negroes, alleged to have participated in last night's
attack on the county jail, were today before Mayor Reed in Portsmouth, The cases
were continued," JOURNAL, Atlanta, GA, August 15, 1908, page four, column four,
"Within the grey walls of the State Penitentiary, Henry Smith, a Portsmouth negro, was
put to death by electricity at an early hour yesterday morning. He paid the penalty in
a manner far different from those executed heretofore, There was nothing spectacular
about it = certainly nothing which will reach the eyes of those who read, The one fact
which was brought clearly to the front showed that the Commonwealth has moved forward
in its effort to carry out the orders of the court in capital crimes in the most humane
manner, Smith was the first victim of the new law which provided that murderers from
all parts of the State should be brought here for electrocution, This being the first
case, the test proved satisfactory to the officials. Under the statute the newspapers
are prohibited from publishing the details. There is no penalty for violation, al-=
though the press has observed the spirit, if not the letter, for the wholesome effect
it will unquestionably have in Virginia, For the past two years or more The Timese-
Dispatch has urged that all prisoners be executed in the penitentiary, mainly for the
reasons that it would free the various communities of the excitement, the morbid curi-
osity and the maudlin sentiment connected therewith, Many things have happened in
Virginia to justify this change in the plan, and convinced of its wisdom, the General
Assembly, at its last session, enacted a law making the suggestion effective. It was
not a pleasant duty to be thrown upon the superintendent of the penitentiary, yet it
relieved more than 100 county officers of the same burden, In view of the opposition
in the General Assembly, it is sufficient to state that witnesses who have been pres-
ent at hangings unhesitatingly declare that electricity is far less barbarous, Smith
had already served one term in the penitentiary. He was dismissed in January, 19076
Some months ago he assaul ed a poor white woman in lat pi subsequently robbing her
house." TIMES- DISPATCH, Richmond, Virginia, October 1h, 1908 (12/h.
a
SMITH, Henry, black, 22, electrocuted Virgihia (Norfolk Co.) on Ogtober 13, 1908.»
7 q
"Norfolk, Vas, Auge 12, °1908-An unknown negro Tuesday attacked with a knife in her
Prentiss place home, Mrs, Katharine Powell, aged 78-years, and after overpowering the
defenseless woman, assaulted her,: leaving her,in-a serious condition, .This is the
end time in 2 weeks that the aged woman ,has been similarly assaulted in her home |
by a negro, Feeling is intense, A posse ‘is in pursuit." JOURNAL, Atlanta, Ga,
August 12, 1908, page swo column’seven, + , i ae
; ‘ ATTEMPT TO LYNCH. 7 ae ere oe eae
"Norfolk, VA, ,8-15-1908-A mob.of:more than. 300.men attacked the Portsmouth jail at
lo clock this morning, bent on-lynching William King and Henry Smith, both negroes,
who*were held on the charge of criminally.assaulting Mrs; Satharine Powell, aged |
white woman, last Mondy. The negroes had been, removed to: Norfolk jail earlier in
the evening for safekeeping. erotic. chy -
"The mob forced the doors of the jail, but were met by Deputy Sheriff Huybert and a
score of officers, of whom the the,cell: keys were demanded, and refused, The crowd
was forced back by the policgmen;with drawn weapons, and the *ire department was _
called out to disperse the mob with the hose, : : «see
"Under orderg of Mayor Reed, the police ayrested Wade Cadd, Martin L, “estbrook, and
T. O« Williams, white men, anda. Nalf-score of negroes,;*‘as ringleaders, Warrants
have been issued for HAXXXAMMA#AA a half-hundred more, ° ‘
"At 2.a.m., the crowd had left the vicinity ,of the jail, and it is reported that they
are congregating elsewhere and intend to march to Norfolk and attack the jail, in .
the hope of securing the prisoners.! . vi eetuito ‘ oo “
"Qubet prevails in Portsmouth today following the jail attack last night by a mob
who sought the negro assailants of Mrs, Albert Powetl, o f Prentiss Place, after
the prisoners had, without theknowledge of the mob, been brought to Norfolk for
safe-keeping.
"Henry Smith, alias Oscar Perry, the negro charged with the assault upon Mrs, Powell,
was today held to the grand jury. Smith admitted breaking into the Powell house,
robbed it and had a struggle with the woman, and made only slight denaal of the
assault,
"Ten men, eight white, and two negroes, alleged to have participated in last night's
attack on the county jail, were today before Mayor Reed in Portsmouth, The cases
were continued," JOURNAL, Atlanta, GA, August 15, 1908, page four, column four,
"Within the grey walls of the State Penitentiary, Henry Smith, a Portsmouth negro, was
put to death by electricity at an early hour yesterday morning. He paid the penalty in
a manner far different from those executed heretofore, There was nothing spectacular
about it = certainly nothing which will reach the eyes of those who read, The one fact
which was brought clearly to the front showed that the Commonwealth has moved forward
in its effort to carry out the orders of the court in capital crimes in the most humane
manner, Smith was the first victim of the new law which provided that murderers from
all parts of the State should be brought here for electrocution, This being the first
case, the test proved satisfactory to the officials. Under the statute the newspapers
are prohibited from publishing the details, There is no penalty for violation, al-
though the press has observed the spirit, if not the letter, for the wholesome effect
it will unquestionably have in Virginia, For the past two years or more The Times-
Dispatch has urged that all prisoners be executed in the penitentiary, mainly for the
reasons that it would free the various communities of the excitement, the morbid curi-
osity and the maudlin sentiment connected therewith, Many things have happened in
Virginia to justify this change in the plan, and convinced of its wisdom, the General
Assembly, at its last session, enacted a law making the suggestion effective. It was
not a pleasant duty to be thrown upon the superintendent of the penitentiary, yet it
relieved more than 100 county officers of the same burden, In view of the opposition
in the General Assembly, it is sufficient to state that witnesses who have been pres=
ent at hangings unhesitatingly declare that electricity is far less barbarous, Smith
had already served one term in the penitentiary. He was dismissed in January, 1907 «
Some months ago he assaul ed a poor white woman in Portsmouth, subsequently robbing her
ouce." TIMES. DISPATCH, Richmond, Virginia, October 1, 1908 (1?/e
¥
~~
SMITH, Henry, black, elec. VASP WINorfolk) October 13, 1908
SMITH, Henry |
Black, 22eyears-oldy, electrocuted Virginia State
Prison (Norfolk County) on October 13, 1908,
"October 13, 1908-fhe first execution under the new
statute of Virginia, which substitutes electrocution
for hanging, took place in the penitentiary here
early today. The man to suffer the penalty was
Henry Smith, a negro convicted of rape on an aged
"lady of Portsmouth and robbery, No details of the
execution were given out by the penitentiary but
officials say that there was no hitch, the law pro-
hibiting the publishing of details."
BIRMINGHAM NEWS, Bimmingham, Alao,y 10-13-1908
"Norfolk, 8-15-1908 = A mob of more than 300 men attacked
Portsmouth jail at 1 o'clock this morning bent on lynching
vim. King and Henry Smith, negroes, who were held on the
charge of raping Mrs. Katherine Powell, an aged white wo-
man, last Monday night, The negroes had been removed to
Norfolk jail earlier for safekeeping. The mob forced the
dorrs of ‘the jail & were met by Depe Sh, Huebert and half
a score of officers of whom the cell keys were demanded &
refused, The crowd was forced back by the police with
drawn weapons & the fire department called out to disperse
the crowd. Under orders of Mayor Reed the police arrested
3 white men and half a score of negroes as ringleaderse
Werrents have been issued for half a hundred more€eeceee"
NEWS, Galveston, TX, Auge 16, 1908 (1/5.)
“ORKSEEET P= EPARED - VIRGINIA - NwUu - BOUND.
Siengatiin df wife of executed murderer Ja
a the State Peniten
AP coe
mes Briley, holds
tiary.
@ Rapist, murderer pray ys a
‘ until moment of death ie ie:
By DENNIS MONTGOMERY
Associated Press
RICHMOND — From his entry at
death’s door to his. from
this life, Michael Marnell Smith.
prayed without pause a condemned.
man’s prayers. For three uninter-
rupted minutes, he his God
and he battled his fear with his
- faith.
“I come to thee, oh Lord,” he
said. “Father, your holy Spirit, ac-
cept me, oh Lord, I pray.”
His voice was thin but strong. It
wavered but it did not break.
The air conditioner at the back of |
the chamber drowned some of his
words. And the thick leather mask |
strapped across his face muffied —
others. But Smith, twice a rapist ,
and once a murderer, was not.
speaking to the men and women
watching.
“Father,” he said, “I am here.”
In the next » NO sooner”
than the prison chaplain said “‘God
bless ott he was “i Thirty-six
minutes after 11 on Thursday night,
his body bore the frst of two. 35
,200-volt shocks. A long,
moan and the hum of the electric
current stifled his supplications.
Swept into the room by five
guards in blue jumpsuits at 11:33,
_Smith had made but One false step.
It was a | meander to his
_ right to stare wide-eyed into the.
faces of the two women and eight —
men who'd asked to see him die. He -
walked quickly on. Four newsmen,
four police officers,.a college pro-
fessor and a businesswoman, sat be- |
_ hind the w:
nesses’ “miybicle and *
low -
We tin chr oh te ad ts
Smith’s left, it took the attendants
two minutes to buckle the seven
oo, eae around his see se an-
fined ele Gloctrode Gaur os his his right
kle at 11:35 p.m. And he was alone
in the thick oaken chair on the short
gray pedestal crowned with an elec-
trode cap.
“Father,” he said, “I am here.”
One minute later, the current
~ flowed and the prayers ended. His
body stiffened. His right hand fell
——
ae
And evecsons: was as tl Mi.
chael Marnell Smith. *
SMITH, Michael M., black, electrocuted va. (James city) 7-31-1986.
Gilbert Anderson,
As a prisoner is put to death, an
right, of Staunton, Va., argues with Jerry Gorman, who was with a soa protesti ution « toe
Smith outside the State Penitentiary. Anderson was dstonted and peed sill = hates
Michael Marnell Smith.
4
ad
old debate ra
—_t_
Z & Bats
x
Virginia executes rapist-killer
after his 11th-hour pleas fail
By WARREN FISKE
and BILL BYRD
Staff writers
RICHMOND — Michael Marnell Smith, a convict-
ed murderer who had spent almost one-fourth of his
life on Virginia’s death row, died Thursday night in
the state’s electric chair after a series of eleventh.
hour appeals that wound up before the U.S. Supreme
Court.
Smith, 40, was electrocuted at 11:42 p.m. for the
1977 rape and murder of a Williamsburg woman. He
died minutes after the high court, conferring by tele.
phone conference call, denied by a 5-3 vote the re.
quest to halt the execution. The ruling came at 11:15
p.m., less than four hours after the appeal for a Stay
had been filed by Smith’s attorney and an Atlanta-
based anti-death-penalty group.
The Supreme Court’s denial of the appeal was the
third in rapid succession Thursday night as attorneys
unsuccessfully raced the clock to halt Smith’s
execution.
Earlier, a federal judge in Norfolk and an appel-
late judge in Durham, N.C., also had declined to is-
sue stays.
The high court issued its denial without comment.
Voting to deny the Stay were Chief Justice Warren E.
- Burger and Justices Sandra Day O’Connor, William
H. Rehnquist, Byron R. White and Lewis F. Powell
Jr. Voting to grant the Stay were Justices Harry J.
Please see KILLER, Page A7
to
*
< %
—*
Hae.
ree
KILLER. aed
Blackmun, William J. Brennan Jr.
and Thurgood Marshall. Justice _
John. Paul Stevens did not partici-
pate in the voting. ;
Following the high court’s ruling, _
Gov. Gerald L. Baliles issued the
order for Smith’s execution to pro-
ceed. A coroner pronounced Smith
dead at 11:42.
Smith’s last words, according to
Corrections Department spokesman
Dwight L. Perry, were a recital of
the 23rd Psalm.
According to Peter Vieth, a Rich-
mond radio reporter who witnessed
the execution, shortly before Smith
died he said, ‘Forgive me, Lord. I
come to thee, Father, O Holy Spir-
eae
Had the Supreme Court not ruled
before midnight, the state’s death
warrant would have expired, and
Smith would have automatically
been granted an indefinite stay.
The appeal on behalf of Smith,
filed at about 7:30 by the Atlanta-
based Southern Prisoners Defense
Committee and J. Lloyd Snook III |
of Charlottesville, Smith’s attorney,
contended that Virginia’s adminis- '
tration of its death penalty was ra-
cially discriminatory. It argued that
people who kill whites are much
more likely to be sentenced to death
than people who kill blacks.
The first judge to deny the appeal
was U.S. District Judge John A.
MacKenzie in Norfolk.
In a ruling issued at 9:35 p.m.,
MacKenzie said such a claim “had
not been raised on direct, appeal”
and had not been mentioned in oth-
er. previous appeals. Thus it was
“procedurally barred” from consid-
eration, he said. He also noted that
in recent appeals the issue had been
raised and dismissed for similar
reasons.
“The ends of justice. would not be
served by relitigating this issue,”
MacKenzie wrote.
Lawyers‘ hastily appealed to the
4th U.S. Circuit Court of Appeals.
Judge James Dickson Phillips Jr.,
hearing the case via conference
telephone call in Durham, denied
the request for a stay at 10:30.
The case was then appealed to
the nation’s high court. Under judi-
cial procedure, Burger, supervisor
of the 4th Judicial Circuit, which in-
cludes Virginia, had the authority to
issue the stay on his own or to poll
the other eight justices to determine
whether to grant the stay.
Robert McGlasson of Atlanta, an
attorney for the anti-death penalty
group, said that the Supreme Court
has agreed to hear challenges to
Florida’s and Georgia’s death-pen-
alty laws based on the same
grounds of the late appeal for
Smith. The court in June agreed to
review Florida’s law and one month
Aa anemia I nnweia ey
ee
n three of the four
been white, ©
-McGlasson said the Supreme
Court voted 9-0 two weeks ago to
Stay an execution in Georgia pend-
ing the resolution of the death-pen-
alty case. He also said White on
Th y granted a temporary stay
to a iana inmate appealing his
conviction on ar grounds. ;
McGlasson said the Southern
Prisoners Defense Committee was:
not made aware of Smith’s case un- |
til about 4:30 p.m. Thursday. He
said Smith’s lawyer apparently was
not aware that he could ask for a
stay on the racial discrimination
According to Dwight Perry, di- |
rector’ of operations at the State
Penitentiary, Smith’s brother, How-
ard, was his last visitor Thursday.
He came to the penitentiary on
Thursday afternoon and was al-
lowed a “contact visit,” in which
the two men were allowed to sit ‘in
the same room and embrace.
Smith’s parents did not come to the
prison Thursday.
Smith’s last meal consisted of .
fried seafood prepared at a Rich-
mond restaurant. He was allowed
‘unlimited. use of the telephone
throughout Thursday evening.
As Smith’s fate was working its
way quickly through the federal ju-
diciary, more than 100 death penal-
ty opponents gathered outside the
State Penitentiary around 9:30 p.m..
for a candlelight vigil. Many car-
ried placards Saying ‘‘Stop the
Death Penalty” and “Disarm the
Chair.”
Thursday was not the first time
the high court-had ruled in the mat-
ter. A bitterly divided court upheld
Smith’s death sentence last month,
5-4, and Baliles on Wednesday re-
jected an appeal for clemency.
Corrections Department spokes-
man Wayne Farrar said earlier
Thursday that inmates in the peni-
tentiary were confined to their cells
to prevent disturbances that might
be sparked by the pending
execution.
Inmates at the prison staged a
bloody riot in April 1985 in an at-
tempt to block the electrocution of
convicted murderer James D. Bri- |
ley. Nine guards were seriously in-
jured in the incident.
Smith, an inmate who had spent
much of his time in prison reading
the Bible, was reported calm during
the hours before the execution.
Staff writers Kent Jenkins Jr.
and Steve Stone contributed to this
report. ;
— SS oy — ee ee
feaity route Soures "yeTUar aay, in the eelat term oalied i hee trial, As at the
preliminary before the magistrake, the evidence, though almost entirely circumstantial,
seems to be strongly against ‘the accused. All of the witnesses examined yesterday were
for the Commonwealth and no one is just certain what lifes of defense may be defeloped,.
Attorney A. He Sands, who was designated by Judge Scott to defend Smith, has been at work
on the case, and it is intimated that before the trial is over he will spring some sur-
presies in the way of evidence in favor of the‘prisoner, On the other hand, KawMaNWEXKY
Commonwealth's Attorney Julien Gunn claims that "he will weave around Smith a fabric of |
facts that‘will be sure to send him to the electric chair, The‘actual trial of the case
was not begun until*3:30 o'clock yesterday afternoon, the morning session of the court
being taken up with the section of the jury from a venire of 20, As it was, this number
was not sufficient, and two or three were called from the court-room, The jury is: John &
F, Weber, “George Ae We Brittain, Charles T. Allen, A. B. Blankenship, “. E. Moss-~
miller, Es W. Christian, Thomas J. Puryear, Andrew Je‘Smith, W. Te Kicken, William §. Hux-
ton, George Jordan, and William Jenkins, They were quartered at the Lexington Hotel last
night under guard of Deputy Sheriff Traylor, The firs t witness for the Commonwealth —
were Dr. H. Stuart MacLean, whose testimony was mainly about the nature of the wounds,
He said that they were probably made with the piece of scantling which was found covered
with blood close to the place of the murder, M, Tate testified that he found Flynn at
5:5 o'clock in the morning, He said that then he was:still alive-and seemed to be con-
scious, that he evidently:tried to make a statement, but could not make himself WMKAKKXAaa
understood, John Krug swore that at 11:0 O'clock on the night before the murder he saw
Smith at the little station, He says that his actions were very suspicious; that he told
him he was going to take the car, but failed to do so when it came in, -Dr. Ae He Mar$in
told of being summoned to the scene and tesfified as to the condition of the man when
found, Attorney Sands, it is expected, “will base:his defense on proving:an alibi for his
client. For this purpose he has summoned several witnesses, who will be placed on the
stand after the State has rested, One of the most important of these, “illiam H ill
(colored), was missing when the case was called yesterday morning. Though he had been
summoned.-he.failed to show up at the court room, and a search in his usual haunts revealed
no trace of his whereabouts, Judge Scott then ordered the officers to make an organized
search for him, Late in the afternoon fle was found and brought to the courthouse, The
judge announced that he would be fined $10 for contempt. Unless others are called this
morning, seven witnesses remained to be examined for the Commonwealth today, Charles
Hamlet is’ expected to tell what Smith said about the clothes he wore, and how KRXWA# it
was his inten tion to rob Krug had the opportunity presented htself, The principal tes-
timony of the other witnessess will be to identify the dead man and to prove that the
clothes worn by Smith when capbrured belonged to Flynn, The probabilities are that the MB
case will not he concluded before next week, Later Hamlet, who is also charged with the
murder of Flynn, will be put on trial before Magistrate Lewis. It is expected that he SRE
sent to the grand jury."
TIMES.DISPATCH, Rychmond, Virginia, February26, 1909 KERR es)
Indicted - TIMES-DISPATCH, Richmond, Vase, Jane 30, 1909 (2el.)
Arrest - TIMES-DISPATCH, Richmond, Vae, 1-28-1909 (1):2&3e) ; ik
Murder - TIMES-DISPATCH, Richmond, Vae, 1-27-1909 (10-1&2.) .
VIRGINIA TUESDAY SEPTEMBER 3 11:00 p.m. ELECTRIC CHAIR
MICHAEL SMITH, a 39 year old black man who was convicted in 1977 of the rape/murder
of a white woman, has an execution date set for September 3. Smith had been scheduled
to be executed May 15, but received a stay.
For updates on this case, contact: Marie Deans 804-353-0093
SUGGESTED ACTION:
Contact Gov. Charles Robb
Governor's Office
State Capitol
Richmond, VA 23219
804-786-2211
UPDATES SINCE LAST ALERT:
Executed /
Jesse de la Rosa TX May 15 Moris Mason VA June 25
Marvin Francois FL May 28 Henry Martinez Porter TX July 9
Charles Milton TX.’ Jane: 25
(Charles Campbell in Washington state received a stay. This was a phone alert.)
IMPORTANT: For the rest of August, contact the National Execution
Alert Network by calling Tim Cain at the National Coalition Against the Death
Penalty office, 215-241-7118 during office hours.
Starting Sept. 5, the National Execution Alert Network will once again be:
402-474-6575 and 402-435-3100 Box 81455 Lincoln, NE 68501
(alerts
NATIONAL EXECUTION ALERT NETWORK
naire
Summér address: EAE AEN.
c/o Squire [= AUR¥ 2
3151 Schubert Ave. ea eS
Cincinnati, OH 45213 ee ee A
NESE
, 2 4
Walt ESPY~ 7
Box 6205
Law Library 345
University» AL 38
4
tr
Courts”
refused to
delay further
his date with
ss death
ri d ay ¢-]-fb
Rapist-killer
executed in
Virginia chair
ASSOCIATED PRESS
RICHMOND, Va. — A man who
said the devil made him rape.and ~
murder a woman was executed ‘in’
Virginia’s electric chair after
spending 8% years on death row. °
“Father, I am here,” Michael
Marnell Smith said just before the
first of two 55-second jolts of elec-’
tricity ran through:his: body-‘last
night, a half-hour after the’U.S. ‘Su-
preme Court rejected his appeal.
Smith, 40, who spent more time
on death row than anyone ‘else now
facing: execution in Virginia, died —
at the State Penitentiary at’ 11:42
p.m. EDT, said Corrections Depart-
ment spokesman Wayne Farrar.
f execution until the Supreme
Gra led on. opener :
the 9 de court agedted.
appeal. Earlier, federal district and
‘court refused to
aoe irantboaie state’s fifth
since it resumed execttions in 1982.
and first in more than a year. The’
ae IN
a ie as
Sah ale ‘a mother of cies ‘who
bd as She strolled by’ the’
Soe a River on her 36th birthday.
He had'been out of prison for nag
than ‘five ‘months. after. rn,
three yearsforrape.
's lawyers had requested %
Smith’s .
a —,
4 =
te nt <4aup vdw
SMITH, Michael M., black, Electrocuted Va. SP (James City) 7-31-1986.
Virginian Goes to Electric Chair
SF Chrenicle
Richmond, Va.
po tore
A condemned murderer and.
rapist who spent more than eight
years on death row was executed in
the electric chair last night, less
than an hour after losing a last-min-
ute appeal to the US. Supreme
Court.
Michael Marnell Smith, 40, had
been convicted of raping, stran-
gling, drowning and stabbing a di-
vorced mother of two, who was at-
tacked on a riverside stroll near -
Jamestown in 1977.
Shortly before Smith's death, .
the U.S. Supreme Court, with a 5-
to-3 vote, turned down his appeal.
The justices’ action came after re-
jfections earlier in the day from a
federal district court and a federal
appeals court judge.
Smith’s execution was the 62nd
since the U.S. Supreme Court al-
lowed the states to resume the
death penalty in 1976, and the 12th
this year. Associated Press
ee ao a
7 et Neat
x -_
Se tenets 3 any
Phe Bie x tr 2m - Hees ’ is os
A He LE OREN Aa LONG OEM OTR CSTE er
4
“THE NEW. YORK TIMES, SATURDAY, AUGUST 2, 1986
“expe
{
‘\ Z \
A eee
Killer Executed After 8 Years on Death Row.
-_gicinionn, fa oo —A man’
mes ng i years on death TOW
; rejected. his appeal.
Mr. Smith, 40, who: hal Apent ‘hore
time on death row than anyone else
now facing execution in Virginia, died
at the State gow rarer at 11:42 P.M.,
' Wayne Farrar, the Corrections Depart-
ment spokesman, said.
In a rae decision, ‘the: ‘Supreme
- Court rejected the a Lat 11:10 P.M.
Earlier in the day, Federal district and
appeals court judges refused to block
2 - «, the execution, the eae’ fifth since it
** ‘pesumed executions in 1982 and first in
more than a year. The execution was
the nation’s 12th this year.
: The. defendant was condemned for
the murder of Audrey Jean Weiler, who
owas attacked:
May 23, 1977, as she
strolled by the James River on her 36th |
| birthday. He had been out of prison less
than five months after serving sire,
years:for rape. .: .
He Blamed the Devil
'‘"In-ar ‘affidavit, Mr. Smith said he
met Mrs. Weiler, a mother of two, on a.
beach arid helpeéd her pull some thorns
from her feet, He then took her to the
- woods, raped her, choked her, dragged:
her to the beach, held her head under
water, stabbed her three times and left-
cher corpse in the river. He said the
devil caused him to commit the crimes.
-. The: prisoner appeared dazed when
led into the execution chamber, then
into the witness room, which
‘was occupied by reporters for the first
time: since the resumption of execu-
tions in Virginia. He prayed from the
| moment he was brought in.
ae come bed is ) Lord,” ” he said;
aa ee x
“Father; jour Bly sot accept me, 0
Lord, Toeay: Father, 1 am here.”’ |
Tiaprach copia responded, ‘‘God
bless you,” as the current trent jolted Mr.
Smith’s body. ~
Outside. the prison, 100 people pro-
"| tested for and against the death pen-
alty. \!
Mr. Smith’s lawyers had requisite a
stay from the lower courts until the Su-
preme Court could rule on whether
death sentences were sgl unfairly
against blacks when whites were’ the
victims. Mr. Smith was black and his
pind on white.
reme Court, _without® om-
Son: ed. to review. the appeal;
with Justices Harry A: Blackmun, Wil-
liam Brennan Jr. arid Thurgood Mar-
shall dissenting, and J ohn Paul Stevens
not participating. ~~ —
Mr. Smith, a father of three, was vis-
ited by at least three clergymen arid.
brother i nel ee
ak fu oi ee
ga SES Bi, ad
edie «5A, ae |
San Diego Bunion
Friday, August 1, 1986 ~
Son of fundamentalists executed for woman’s rape, drowning
United Press International
RICHMOND, Va. — Michael Mar-
nell Smith, whose fundamentalist
family wore burlap “robes of humili-
ty” to his trial, was executed last
night for raping and drowning a
young mother he found sunbathing
by the James River.
A final flurry of appeals filed less
than four hours before Smith’s sched-
uled execution were rejected by a
US. District judge in Norfolk, a 4th
US. Crcuit Court of Appeals judge
and finally by the U.S. Supreme
Court.
Smi’h, 40, was pronounced dead at
8:42 p. n. PDT.
were waoae weese, wees,
a) OD Periuty news 7-31-£¢
' ELSEWHERE: Virginia Gov.
Gerald Baliles refused to commute
the death sentence of Michael Mar-
hell Smith, scheduled to die today. |
7 —_—w ww SS Lt
24 Paes lridsy £-]-
Killer of Sunbather f%
Awaits Execution 25 A ;
RICHMOND,, July 31 (UPI) — Mi-
chael Marnell Smith, his appeals ex-
hausted, waited calmly today to be
electrocuted for for rape and murder in
1977 of a mother of two, Audrey Weiler,
a part-time William & Mary College
Student who was Sunbathing on the
James River.
Gov. Gerald L. Baliles denied Mr.
Smith’s clemency request Wednesday
and Mr. Smith’s lawyer, Lloyd Snook,
said further appeals would be point-
less.
The Supreme Court rejected Mr.
Smith’s appeal last month and Virgin-
ia’s Supreme Court refused last Friday
to intervene in the execution at 11 to-
night, the fifth in the State since the
death penalty was reinstated in 1976.
Mr. Snook said Mr. Smith, who is.40
years old and a fundamentalist Chris-
tian, views his fate as “God’s will.”
Fe Saas : sau
Murderer, rapist dieg f/ {court and a federal appeals coun
In Virginia electric Chairs, ME Caklend 7 bone
d been Convicted of
raping, Stabbing, choking and
wning a divorced mother of
two who was attacked on a riy-
erside stroll near Jamestown in
libs P-
Peal. The justices’ action at 11:10
P.m. followed rejections earlier
in the day from a federal district
= ——
ant
x
‘ BS
or at 7
: *. ENE fal
‘ io “ 8 EOP py
ut ty. hd
Zz. 7
x
°Murderer-rapist
\ i ce
~executed after
See ps
< losing appeal’y, |
A condemned murderer and rap- {
ist who Spent more than eight '
€ars on death row was executed
the electric. chair ‘Th i
ichmond, Vi., less than an hour
ter losing a last-minute appeal to
US. Supreme Court. Michael
Marnell Smith, 40, had been con-
victed of raping, strangling,
— 82 ae Be we. =
Se Mercy re News
gee
Jz
ve]
&
National News
in ag tr ; / an? ta _
miles of where he had found it and
tossed it out his car window. The fact
that the purse had a few fish scales
on it helped corroborate the man’s
story.
The first break in the case came when
a man who operated the Gospel Spread-
ing Farm adjacent the parkway from
Archer’s Hope called police head-
quarters with some relevant news. He
said he had seen a light green sedan
about five years old parked at Archer’s
Hope at the same time Mrs. Weiler’s
car was there. He. said he had been
plowing a field on one of his tractors
when he noticed the car from a dis-
tance.
Even more important, he saw a man
putting some fishing gear in the trunk
of his car, and the trunk had a CB an-
tenna on its lid, directly in the center.
He watched the man drive away.
Obviously, this was an inadequate de-
scription to go on. Nevertheless, Dun-
ford informed his men and Park
Rangers to be on the lookout for a light
green car with a CB antenna in the cen-
ter of the trunk.
A description of the car was run in
the local newspapers and a few tips
came in from residents who thought
they had seen the wanted vehicle. Dun-
ford and other detectives checked out
the tips but all came to a dead end.
Thursday came and went and Dun-
ford and fellow officers of Sheriff A.M.
Brenegan’s department were still
stymied in their attempts to come up
with anything more concrete than
they had.
At this point of the investigation, as
far as Dunford knew, Mrs. Weiler’s
young lover was the last one to have
seen her alive. Accompanied by two
William and Mary College campus
security officers, he went to the col-
lege to interview the suspect on Thurs-
day, May 26th. Dunford didn’t like
the answers he got so he asked the
young man to accompany him to the
beach.
As the two men stood on top of a hill,
near where Mrs. Weiler’s car was
found, and looked down to where she
had been sunbathing, Dunford asked
the subject, “If you say you did not
come down on the beach with Mrs.
Weiler, can you explain why your foot-
prints were found on the beach?”
The young man denied being in the
area with Mrs. Weiler or that he had
ever been on this beach in his entire
life. ’
58
“There’s no way my footprints could
be here,” he said. “No damn way at
all!”
“It was a ploy,” Dunford later said.
“I was just testing him to see if he
was lying. But right then in my mind
I cleared him. We hadn’t found his foot-
prints down there. But if he had been
down there he would have given us
some excuse as to why he was in the
area. But the very fact that he flatly
denied he had ever been there and
that his footprints couldn’t possibly
have been there, cleared him as far as
I was concerned.”
So in Dunford’s mind, the one thin
lead they had was gone.
Just when the outlook appeared dis-
tressingly bleak for solving the mur-
der something particularly encourag-
ing happened. On Friday morning
Dunford decided to pay another visit
to the farmer who had phoned his of-
fice about a man he saw putting fish-
ing gear in the trunk of his car. He want-
ed to know if the farmer could
remember anything further about the
man or his car.
Also, he wanted to talk with the
farmer about a relative of his who
had recently been released from prison.
Dunford had just learned that Michael
Marnell Smith was on parole and liv-
ing at the Gospel Spreading Farm.
Michael Marnell Smith was a familiar
name to the veteran homicide officer.
He should have been, Dunford was
largely responsible for gathering the
evidence that led to Smith’s convic-
tion on a charge of rape in 1973.
Smith received a ten year prison sen-
tence, but he was released in January
after serving only three years. Now
Dunford wanted to talk to the farmer
about his ex-convict relative. He was
determined to know where Smith was
on May 23rd.
As Dunford sat talking with the
farmer and his recently paroled rela-
tive, he noticed that Smith seemed ner-
vous. Using the same interrogation
ploy that he had used with Mrs. Weil-
er’s young lover, he asked Smith if
there should be any reason why his
fingerprints should have been found
on limbs at the beach near where
Mrs. Weiler’s body was found and also
why his footprints would be at the
beach.
“I guess I grabbed hold of a limb
when I was down at the beach fishing,”
he mumbled nervously.
There was significant quiet for a
few minutes. Of course investigators
had not found any discernible footprints
or fingerprints traceable to Smith.
“You might want to get a lawyer,”
Dunford told Smith just before he
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read him his lega
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23rd along the |
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ment, he was out
came upon Mrs. \'
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Dunford said to
medical doctor.
semen in the won
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it was at this px
down and cones
the 22-year-old \
Dunford was
el] Smith was a familiar
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been, Dunford was
ible for gathering the
ed to Smith’s convic-
ge of rape in 1973.
. ten year prison sen-
is released in January
ily three years. Now
to talk to the farmer
ivict relative. He was
now where Smith was
sat talking with the
recently paroled rela-
ihat Smith seemed ner-
> same interrogation
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uld have been found
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dy was found and also
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read him his legal rights. Smith’s rel-
ative told him to say no more until he
got an attorney. ae
Dunford’s prophesy proved correct.
Under constant police grilling at head-
quarters Smith came apart like a cheap
suitcase. He relived for his interroga-
tors exactly what had happened on May
23rd along the James River beach
near Archer’s Hope.
According to Smith’s signed state-
ment, he was out for a stroll when he
came upon Mrs. Weiler, who had been
walking, also. She had stopped along
the beach to remove a thorn from her
bare foot. He pulled a knife and forced
her into the secluded underbush not
far from the water’s edge.
Smith told the officers that he forced
her to remove her corduroy slacks
and two-piece bathing suit. “She was
standing there naked,” he said, “beg-
ging me not to rape her because she
had her period.” He ripped off her tam-
pon and raped her anyway.
She wouldn’t stop crying, so he began
to choke her. She went limp and he car-
ried her to the water, figuring she would
probably float a great distance from the
scene because the current at this point
was swift. Maybe she would float down
to Chesapeake Bay, or with any luck
the ocean beyond, he thought.
But to his amazement, he said, when
he put her in the water she began to
moan. That’s when the pulled a hunt-
ing knife with a serrated edge from
its sheath and began stabbing her re-
peatedly in the back.
Smith said when he was sure she was
dead he went back to the scene and
took her bathing suit and slacks and
discarded them in the dense forest
where he was sure no one would find
them. Then he returned to the Gospel
Spreading Farm and tossed the knife
and its sheath into a frog swamp. He
took the officers to the spot and they
retrieved the knife.
During the interrogation of Michael
Marnell Smith, another puzzle in Dun-
ford’s mind was quickly answered. The
detective recalled that during the in-
terrogation of Smith in 1973 before
Smith had confessed to that rape,
Dunford said to Smith, “Now I’m no
medical doctor, but if they find your
semen in the woman’s vagina it is going
to link you to the act.” Dunford said
it was at this point that Smith broke
down and confessed that he had raped
the 22-year-old woman.
Dunford was convinced that Smith
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ie across the clothes
vearing when she
A blue blouse and
lacks she was wear-
iit were bagged and
vas discovered in
jurisdiction of the
sriff’s department.
uties assisted by
Veiler’s brothers,
iding woods search-
veteran criminal
() years service in
4! Investigation Di-
ing the James City
Department, was
y bility of running
dase.
r. after making a
i of the body, noticed
. Her necklace and
iry were still on her
sidered this to be
istances in light
icing found some
_ a turnoff on the
v had been even a
why was only her
Victim parked her car near this historical marker which tells of the Indian massacre of 1622. Dunford (right)
had arrested the rape-slayer once before and his recollection of the case helped put him away for keeps.
purse taken? Why not the personal jew-
elry she was wearing, including a $500
ring.
The area was roped off to keep the
curious away and the corpse was
taken to the state capital in Richmond
for an autopsy, conducted by Deputy
Chief Medical Examiner Dr. M.F. Fier-
ro. His findings indicated that Mrs.
Weiler had been manually strangled
and stabbed in the back numerous times
with a knife with a serrated edge. There
were traces of water in her lungs, as
though not quite dead when tossed into
the river. He declined to say that she
had been raped, although a police
source indicated that she had been
sexually assaulted.
Another discovery on the beach in
some scrub bushes, cast another
puzzling tone to the case. Hanging
on a tree branch, officers found a
freshly used, discarded condom.
Nearby, they found a woman’s tam-
pon. Both items had traces of new
blood on them. Police determined that
Mrs. Weiler had been having her
monthly menstrual period. Blood
samples from the contraceptive and
the tampon matched those of Mrs.
Weiler’s classification.
Lawman theorized that the rapist
night have used the condom because
of squeamishness over her menstrual
flow.
Throughout the investigation, Mr.
Weiler was never considered a suspect.
His whereabouts could readily be de-
termined and verified.
All day Tuesday detectives spent
tracking down and querying known
friends and acquaintances of the mur-
dered woman. She was taking an art
course, they learned, at William &
Mary College. Dunford paid the col-
lege a visit.
Among her belongings at the col-
lege was the sculptured bust of a man
several years her junior that she had
been dating. Dunford paid him a visit
and learned that he had seen Mrs. Weil-
er at a shopping mall on the Monday
she was murdered. He said he didn’t
talk to her because he had a date with
him and they were on their way to
lunch. Asked what he did after lunch,
he said he dropped his date off at her
job, then went back home and took a
nap. He denied seeing Mrs. Weiler after
she left the shopping center.
Meanwhile, other officers were ques-
tioning motorists coming and going
from the parkway’s intersection Route
199, where the purse was found. The
officers were seeking information
which might possibly explain how Mrs.
Weiler’s purse ended up on the ramp
to the parkway. As well, Dunford re-
quested media members to ask that any-
one who may have seen a vehicle
parked near Mrs. Weiler’s green Vega
at the Archer’s Hope turnoff on Mon-
day afternoon to contact their nearest
police agency.
Dunford learned from the victim’s
daughters that one night, Mrs. Weil-
er’s young boyfriend awakened them
in the middle of the night by bang-
ing on the door in a fit of temper and
demanding to see her. Supporting the
belief that this same temper may
have been sufficient to cause him to
murder his lover, he became the
strongest suspect in the case. Dun-
ford realized that he had little more
than suspicion to go on, but he was
determined to follow up every lead
doggedly.
Yet, he pondered, if the slaying had
taken place after a lover’s rendezvous
that resulted in a quarrel, what was
the woman’s purse doing three miles
away?
Wednesday, May 25th, passed with
no favorable results in the case, and,
detectives knew, with every passing
hour the case would become more
difficult to solve.
Meanwhile, forensic technicians
had examined the discarded purse and
found traces of fish scales on it. They
reasoned that the pocketbook had
been discarded next to a container
where fish had been.
In the aftermath, the mystery of the
purse was unraveled. A park ranger,
remembering Dunford’s request about
a green car with a CB antenna on the
trunk, observed a car fitting that de-
scription. It was driven by a local
resident who was fishing along the
James River. Questioned at length,
the man said that back on May 23rd
he found a woman’s pocketbook on
the beach, put it in his tackle and bait
bag and lifted two dollars from it. He
admitted that he drove to within three
57
had put on a condom before he pene-
trated Mrs. Weiler in an effort to
avoid what he considered possible iden-
tification through lab tests.
Interestingly enough, during the
November, 1977, trial, a medical ex-
aminer testified that saliva tests from
Smith were consistent with chemical
analysis of the semen found in the con-
dom. He said they both had been se-
creted by the same person. Moreover,
bloodstains found on the tampon, which
were the same type as Mrs. Weiler,
were of the same type as that found
on the outside of the condom.
But Smith denied having taken Mrs.
Weiler’s purse. Dunford believed him.
Why would a man confess to rape
and murder and deny stealing a purse
unless he was telling the truth. The
mystery of the pocketbook would un-
ravel some weeks later.
After signing a confession, the 31-
year-old suspect was taken in handcuffs
to the James City Sheriff’s Department
and formally charged with rape and
first-degree murder.
At the trial, held in James City Coun-
ty Circuit Court, the self-confessed
killer was found guilty of the rape-mur-
der of Audrey Jean Weiler. On Wednes-
day, November 30th, following a two-
part trial and a presentation report,
Smith was sentenced by Judge Rus-
sell M. Carneal to die in the electric
chair on June 30, 1978. A newspaper
article said he would be the first per-
son executed under a new death penal-
ty statute in Virginia.
The new law stated that a capital
offense had to be tried in two sepa-
rate parts. The first part was to deter-
mine guilt or innocence and in the
second part the panel would hear ag-
gravating and mitigating evidence be-
fore deciding on a life or death pun-
ishment.
In Michael Marnell Smith’s case,
the verdict was for death for the twice
convicted rapist.
Virginia law mandates automatic
appeal of all death sentences to the
State Supreme Court. If the Supreme
Court upholds the sentence, the de-
fendant may appeal to any number of
courts, right on up to the United States
Supreme Court. The case against Smith,
which cost taxpayers nearly a million
dollars, was in the court system near-
ly 11 years.
Appeals attorneys noted that psy-
chological evaluations showed Smith
had suffered brain damage from head
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ADDRESS:
CITY/TOWN
STATE:
injuries, fetal alco!
post-traumati
child abuse.
Smith’s mesuca
appeals form noted. :
and impulsive wh
murdered Audre\
had the jury know:
not have voted for
State prosecutors
the electric chair
that any change !
should be the job o! «
not the courts. "
A spokesman for
ney’s Office said. *'
really be of any con
be sure and certal!
the slow, never-endi:
is the cruel and un
In the end, a fe
turned down the
were meritless an
the court process
Thus it was that
Michael Smith \
out a word. But n
gle.
Before the execu!
had to physical!
Smith when he re!
_ ~ Because
ice ty the wuurt,
with new trials th:
twice as much tin
in his first trial.
“Price originall
bing convenien
he got a new tria
or te
L assistant atto
e public is twi
nt crime,”
PEE CULE ECE: TR TONLE RE Sh RRR ROI Pi Pree oes
“S127 PTR OR enrERERE TER yt creas bree HEURES
FONT HENCE
154 Va. 248 SOUTH EASTERN REPORTER, 2d SERIES
APPENDIX A—Continued
the court, either by rule or order, and to
present oral argument.
* * a * * *
§ 17-110.2. Priority given to such re-
view.—The Supreme Court shall, in setting
its docket, give priority to the review of
cases in which the sentence of death has
been imposed over other cases pending in
the Court.
APPENDIX B
Voir Dire of Mrs. Piggott
[BY MR. PERSON, COMMONWEALTH’S
ATTORNEY]
Q. And do you understand in the first
hearing that the jury will determine guilt
or innocence of the Defendant?
A. Right.
Q. And do you understand that in the
second hearing, the second part of this trial,
that the jury, if they find the Defendant
guilty of capital murder, will be asked to
fix his punishment at life imprisonment or
death?
A. Yes.
Q. Now, do you have any religious or
moral or conscientious scruples against giv-
ing somebody the death penalty in the prop-
er case?
A. I would say yes.
Q. Yes. You couldn’t give anybody the
death penalty, could you?
A. No.
Q. All right. And in fact, no matter
what the facts were in the case, you
couldn’t put somebody to death, could you?
A. No.
Q. Nor could you vote for somebody to
die, could you?
A. No,
Q. All right. So you are absolutely
against the death penalty, is that correct?
A. I think so.
[BY MR. WOOD, COUNSEL FOR DE-
FENDANT]
or
Q. All right. Now, would the fact that
you had to vote first of all on guilt or
innocence initially, now before any sentence
were imposed, what I am talking about just
voting on one thing, that’s guilt or inno-
cence of the accused, would the fact that
the person could either get life or death,
would that influence your decision at all in
voting for guilt or innocence?
A. No.
Q. It wouldn’t influence you, is that cor-
rect?
A. It would not.
Q. Would the view that you hold about
capital punishment compel you automatical-
ly solely on those views, would they compel
you to vote not for the death penalty, or
could you possibly vote for the death penal-
ty?
A. Well, could you make that a little
plainer. I didn’t understand that too good.
Q. Okay. I assume from your answers,
answering Mr. Person’s questions, that
you’re somewhat opposed to the death sen-
tence, is that correct?
A. Right.
Q. In the State of Virginia. All right.
Would the views that you hold, that is your
own personal feelings about the death pen-
alty, would they compel you solely because
of the views you hold about the death pen-
alty, would they compel you, would that in
other words, force you to vote for the death
penalty, or could you possibly vote for the
death penalty in a certain case depending
on what the facts were, depending on what
the evidence is in that particular case?
A. I guess I possibly could then, I guess.
I don’t know.
Q. Depending on what the facts are in
any particular case, is that correct?
A. Yes.
|
SMITH v. COM. Va. 155
Cite as 248 S.E.2d 135
APPENDIX B—Continued
[BY MR. PERSON:]
Q. Mrs. Piggott, you understand now,
and excuse me if I repeat myself because
it’s very important to get your answers
correctly because this is the time when you
can—you as a person can tell Judge Carneal
that you don’t agree with the law; that you
don’t agree with the death penalty in this
case, no matter what the case is, that you
don’t agree with it and nothing will happen
to you. This is one time you can do that
and you can tell Judge Carneal that you
don’t agree with the death sentence under
any circumstances because you just don’t.
feel it’s right, and nothing will happen.
Now, is that the way you feel?
A. No, not exactly. But—I don’t know.
I don’t like—you know—to hear of that but
I guess something have to be done if you’re
wrong, I guess.
Q. Let me ask you this. To make my-
self perfectly clear, you understand that the
first trial will be—the jury will determine
whether the defendant is guilty or innocent,
is that correct?
A. Right.
Q. Now, knowing that the Defendant
might be givert death, could you if the
Commonwealth proves its case beyond a
reasonable doubt and if it was a proper
case, could you find the Defendant guilty,
knowing that he might be given death later
on, or would you have to find him not
guilty?
A. Well, I guess if he’s guilty, I'll have
to.
Q. You could find him guilty, is that
correct?
A. Yes.
Q. Now, once you found him guilty,
there would be only two punishments.
A. Yes.
Q. One would be life imprisonment and
the other would be death. All right.
A. Yes.
Q. Now, if the Commonwealth proves
its case beyond a reasonable doubt and it
was a proper case, could you vote the death
penalty for the Defendant?
‘
A. I—
Q. Or would you have to give him life
imprisonment?
A. I would say life.
Q. Life. All right. So no matter
what—in the second half of the trial, after
you found him guilty, in the second half of
the trial, no matter what the Common-
wealth evidence showed, and no matter
what the law told you, you couldn’t give a
person death, is that correct? You'd have
to give him life, is that correct?
A. Yes.
Q. So you are absolutely against the
death penalty, is that correct?
A. Right.
Q. In any situation?
A. No.
Q. Is that correct?
A. Right.
[BY MR. WOOD:]
Q. Mrs. Piggott, you answered some
questions for me before here, is that right?
A. Yes.
Q. Didn’t you answer at that time
that—when I asked you a question about
whether or not you possibly could impose
the death sentence in some case, depending
on the facts of that case?
A. Yes.
Q. That in fact you said you possibly
could, is that correct?
A. Yes.
Q. Is that the way you feel, possibly you
could. You wouldn’t want to, but—but you
possibly could?
A. Yes.
Q. So that your feelings are not abso-
lute, is that correct?
A. Yes.
Q. That’s correct?
A. Yes.
Q. You’re not saying to Mr. Person and
to the Judge that I don’t care what kind of
i
:
3
4
:
&
¢ SUPPRESS IESE PURE TEY ay eee Tp erE
150 Va. 248 SOUTH EASTERN REPORTER, 2d SERIES
advise the jury that, even though it may
find aggravating circumstances, the death
penalty is not mandatory.
Code § 19.2-264.4C provides that the
death penalty shall not be imposed unless
the Commonwealth proves one of the two
aggravating circumstances beyond a rea-
sonable doubt. The statute does not re-
quire that, upon such proof, the jury must
impose the extreme penalty but only that,
absent such proof, it shall not do so. By
requiring the jury to consider circumstances
both in aggravation of and in mitigation of
the offense, the statute clearly contem-
plates that, notwithstanding a showing of
the former, the jury is at liberty in consid-
eration of the latter to recommend the less-
er penalty. Such discretion in the sentenc-
ing authority is not constitutionally infirm.
“Nothing in any of our cases suggests that
the decision to afford an individual defend-
ant mercy violates the Constitution.””
Gregg, 428 U.S. at 199, 96 S.Ct. at 2937.
[32,33] We agree that the instruction
was not artfully drawn. Yet, we are of
opinion that, read as a whole, it fairly ex-
pounds the thrust of the statute. Reciting
the statutory command that the death pen-
alty “shall not be imposed” absent a show-
ing of aggravating circumstances, the in-
struction told the jury that it “may fix .
punishment at death.” What a jury “may”
do it is at liberty not to do.
B. Rebuttal Argument by Commonwealth
Defendant maintains that the trial court
erred in permitting the Commonwealth to
make a closing rebuttal during the penalty
trial. That procedure, he says, “places un-
due emphasis on the aggravating circum-
stances”.
The argument defendant makes was up-
held in People v. Bandhauer, 66 Cal.2d 524,
530-31, 58 Cal.Rptr. 332, 336-37, 426 P.2d
900, 904-05, cert. denied, 389 U.S. 878, 88
S.Ct. 178, 19 L.Ed.2d 167 (1967), under the
following rationale:
7. We reject the thesis that, because the statuto-
ry alternative to the capital penalty is one
which permits parole, the sentencing authority
The prosecutor’s burden of proving guilt
beyond a reasonable doubt at the trial on
the issue of guilt justifies his closing the
argument as well as opening it. At the
trial on the issue of penalty, however,
neither side has the burden of proving
that one or the other penalty is the prop-
er one in the case at hand, and there is no
logical reason to favor one side over the
other in argument.
[34] But, as we have just noted, Code
§ 19.2-264.4C places upon the Common-
wealth the burden of proving aggravating
circumstances beyond a reasonable doubt.
For more than a century, the rule in Virgin-
ia has been that “the party having the
affirmative of the issue has the right to
open and conclude the argument before the
jury”. Doss v. Commonwealth, 42 Va. (1
Grat.) 557, 560-61 (1844). In light of the
statutory command, we decline to change
the rule here.
V. PROPRIETY OF THE SENTENCE
A. Product of Passion
Defendant urges us to commute the
death sentence to imprisonment for life.
The sentence, he says, was the product of
“passion, prejudice, or other arbitrary fac-
tors”. He reasserts his arguments that the
photographs of the victim’s body and the
testimony of her daughter inflamed the
passions of the jury. The same was true,
he contends, of the repetitious reading of
his confession, once during opening argu-
ment, once during the evidentiary portion
of the guilt trial, and once during the penal-
ty trial.
At the penalty trial, the Commonwealth
introduced evidence, inter alia, that defend-
ant had been previously convicted of an
earlier crime of forcible rape and psychiat-
ric testimony concerning the possibility that
he might commit future crimes of violence.
Confining himself to cross-examination of
the Commonwealth’s witnesses, defendant
offered no independent evidence of circum-
is constitutionally overbroad. Surely, mercy
by parole is not unconstitutional.
SMITH v. COM. Va. 151
Cite as 248 S.E.2d 135
stances in mitigation of the offense. In
argument, the only mitigating factors
stressed were defendant’s good behavior
during incarceration, the prospect of reha-
bilitation, and the probability that, if sen-
tenced to prison for life, defendant “would
be in his sixties before he would even be
eligible for parole”. The written verdict
recited a finding of both aggravating cir-
cumstances. Although the jury was told
that it might yet impose the lesser penalty,
it unanimously recommended a penalty of
death. Based upon its consideration of “all
of the evidence in the case, the report of the
Probation Officer, the matters brought out
on cross-examination of the Probation Offi-
cer and such additional facts as were
presented by the defendant”, the trial court
entered final judgment confirming the pen-
alty recommended by the jury.
We assume that the jurors were aroused
by all they had heard and seen concerning
conduct which they found to be “outra-
geously or wantonly vile, horrible or inhu-
man”. And no doubt they were moved by
the plight of a young daughter in the loss
of her mother. Yet, we cannot say that,
absent the trial incidents of which defend-
ant complains, the jurors would have been
less so or that they would have recom-
mended a different penalty.
[35] We are, therefore, of opinion that
the sentence imposed was not the product
of invidious passion, prejudice, or other ar-
bitrary factors but the product of a rea-
soned judgment grounded in the evidence
and in accord with the law.
B. Excessiveness
This Court is directed to determine
whether the penalty imposed is “excessive
or disproportionate to the penalty imposed
in similar cases”, and, in aid of that deter-
mination, we are empowered to “accumu-
late the records of all capital felony cases
tried within such period of time as the court
8. Pursuant to Code § 17-110.1E, we have this
day entered an order directing the Clerk of this
Court henceforth to segregate and accumulate
the printed records and opinions in all class 1
felony cases, to maintain a current index of
may determine.” ® Code § 17-110.1E (Cum.
Supp.1978).
On brief, defendant addresses this ques-
tion in only two sentences. Although
“there have been convictions for rape-mur-
der in Virginia in recent years”, he says,
“no defendant has been subjected to the
death penalty in Virginia in almost sixteen
years.”
Manifestly, since this is the first case to
be reviewed under the 1977 law, no records
of cases involving the particular crime
charged in the indictment are available for
comparison with the record here. Capital
cases tried and reviewed under prior laws
involved offenses definitionally different
from the one at bar. Among a host of such
cases, defendant cites none he considers
fairly comparable to his case. Our own
research has disclosed none in which a pen-
alty less than death was imposed. On the
other hand, we find that, of the 236 persons
actually executed in the last seven decades,
232 had been convicted of murder or rape or
murder in connection with rape. These fig-
ures do not, of course, include cases in
which a death penalty initially imposed was
set aside by the courts or commuted by
executive clemency.
[36} In consideration of the record as a
whole and to the extent we can make a
meaningful comparison with other capital
eases decided in this Commonwealth, we
hold that the penalty imposed in this case
was not excessive or disproportionate.
Finding no reversible error in the court
below, we will affirm the verdict of guilty
and the sentence of death.
Affirmed.
APPENDIX A
The Statutory Complex (Cum.Supp.1977)
§ 18.2-10. Punishment for conviction of
felony.—The authorized punishments for
conviction of a felony are:
those cases, and to make the index, records,
and opinions of this Court available for exami-
nation upon the request of any court of record
in the Commonwealth or in the federal jurisdic-
tion.
SELLE ALIS OETT SLRS POEL ORES ES FETT EE IR PTE eae
152 Va.
APPENDIX A—Continued
(a) For Class 1 felonies, death, or impris-
onment for life.
* * * * * *
§ 18.2-31. Capital murder defined; pun-
ishment.—The following offenses shall con-
stitute capital murder, punishable as a Class
1 felony:
(e) The willful, deliberate and premedi-
tated killing of a person during the commis-
sion of, or subsequent to, rape.
* * * * * *
§ 19.2-264.2. Conditions for imposition
of death sentence.—In assessing the penal-
ty of any person convicted of an offense for
which the death penalty may be imposed, a
sentence of death shall not be imposed un-
less the court or jury shall (1) after consid-
eration of the past criminal record of con-
victions of the defendant, find that there is
a probability that the defendant would
commit criminal acts of violence that would
constitute a continuing serious threat to
society or that his conduct in committing
the offense for which he stands charged
was outrageously or wantonly vile, horrible
or inhuman in that it involved torture, de-
pravity of mind or an aggravated battery to
the victim; and (2) recommend that the
penalty of death be imposed.
* * * * * *
§ 19.2-264.3. Procedure for trial by jury.
—A. In any case in which the offense may
be punishable by death which is tried before
a jury the court shall first submit to the
jury the issue of guilt or innocence of the
defendant of the offense charged in the
indictment, or any other offense supported
by the evidence for which a lesser punish-
ment is provided by law and the penalties
therefor.
B. If the jury finds the defendant guilty
of an offense for which the death penalty
may not be imposed, it shall fix the punish-
ment for such offense as provided by law.
C. If the jury finds the defendant guilty .
of an offense which may be punishable by
death, then a separate proceeding before
the same jury shall be held as soon as Is
248 SOUTH EASTERN REPORTER, 2d SERIES
practicable on the issue of the penalty,
which shall be fixed as is provided in
§ 19.2-264.4. .
* * * * * *
§ 19.2-264.4%.. Sentence proceeding.—A.
Upon a finding that the defendant is guilty
of an offense which may be punishable by
death, a proceeding shall be held which
shall be limited to a determination as to
whether the defendant shall be sentenced to
death or life imprisonment. In case of trial
by jury, where a sentence of death is not
recommended, the defendant shall be sen-
tenced to imprisonment for life.
B. In cases of trial by jury, evidence
may be presented as to any matter which
the court deems relevant to sentence, ex-
cept that reports under the provisions of
§ 19.2-299, or under any Rule of Court,
shall not be admitted into evidence.
Evidence which may be admissible, sub-
ject to the rules of evidence governing ad-
missibility, may include the circumstances
surrounding the offense, the history and
background of the defendant, and any other
facts in mitigation of the offense. Facts in
mitigation may include but shall not be
limited to, the following: (i) The defendant
has no significant history of prior criminal
activity, or (ii) the capital felony was com-
mitted while the defendant was under the
influence of extreme mental or emotional
disturbance or (iii) the victim was a partici-
pant in the defendant’s conduct or consent-
ed to the act, or (iv) at the time of the
commission of the capital felony, the capaci-
ty of the defendant to appreciate the crimi-
nality of his conduct or to conform his
conduct to the requirements of law was
significantly impaired; or (v) the age of the
defendant at the time of the commission of
the capital offense.
C. The penalty of death shall not be
imposed unless the Commonwealth shall
prove beyond a reasonable doubt that there
is a probability based upon evidence of the
prior history of the defendant or of the
circumstances surrounding the commission ,
of the offense of which he is accused that
he would commit criminal acts of violence
that would constitute a continuing serious
SMITH v. COM. Va. 153
Cite as 248 S.E.2d 135
APPENDIX A—Continued
threat to society, or that his conduct in
committing the offense was outrageously or
wantonly vile, horrible or inhuman, in that °
it involved torture, depravity of mind or
aggravated battery to the victim.
D. The verdict of the jury shall be in
writing, and in one of the following forms:
(1) “We, the jury, on the issue joined,
having found the defendant guilty of (here
set out statutory language of the offense
charged) and that (after consideration of
his past criminal record that there is a
probability that he would commit criminal
acts of violence that would constitute a
continuing serious threat to society) or his
conduct in committing the offense is outra-
geously or wantonly vile, horrible or inhu-
man in that it involved (torture) (depravity
of mind) (aggravated battery to the victim),
and having considered the evidence in miti-
gation of the offense, unanimously fix his
punishment at death.
Signed _____ foreman”
or
(2) “We, the jury, on the issue joined,
having found the defendant guilty of (here
set out statutory language of the offense
charged) and having considered all of the
evidence in aggravation and mitigation of
such offense, fix his punishment at impris-
onment for life.
Signed ___________ foreman”
(E) In the event the jury cannot agree as
to the penalty, the court shall dismiss the
jury, and impose a sentence of imprison-
ment for life.
* * * & * .
§ 19.2-264.5. Post sentence reports.
—When the punishment of any person has
been fixed at death, the court shall, before
imposing sentence, direct a probation offi-
cer of the court to thoroughly investigate
upon the history of the defendant and any
and all other relevant facts, to the end that
the court may be fully advised as to wheth-
er the sentence of death is appropriate and
just. Reports shall be made, presented and
filed as provided in § 19.2-299. After con-
sideration of the report, and upon good
cause shown, the court may set aside the
sentence of death and impose a sentence ef
imprisonment for life.
* * * * * *
§ 17-110.1. Review of death sentence.
—A. A sentence of death, upon the judg-
ment thereon becoming final in the circuit
court, shall be reviewed on the record by
the Supreme Court.
B. The proceeding in the circuit court
shall be transcribed as expeditiously as
practicable, and the transcript filed forth-
with upon transcription with the clerk of
the circuit court, who shall within ten days
after receipt of the transcript, compile the
record as provided in Rule 5:14 and trans-
mit it to the Supreme Court.
C. In addition to consideration of any
errors in the trial enumerated by appeal,
the court shall consider and determine:
1. Whether the sentence of death was
imposed under the influence of passion,
prejudice or any other arbitrary factor;
and
2. Whether the sentence of death is ex-
cessive or disproportionate to the penalty
imposed in similar cases, considering both
the crime and the defendant.
D. In addition to the review and correc-
tion of errors in the trial of the case, with
respect to review of the sentence of death,
the court may:
1. Affirm the sentence of death; or
2. Commute the sentence of death to
imprisonment for life.
E. The Supreme Court may accumulate
the records of all capital felony cases tried
within such period of time as the court may
determine. The court shall consider such
records as are available as a guide in deter-
mining whether the sentence imposed in the
case under review is excessive. Such ree-
ords as are accumulated shall be made
available to the circuit courts.
F. Sentence review shall be in addition
to appeals, if taken, and review and appeal
may be consolidated. The defendant and
the Commonwealth shall have the right to
submit briefs within time limits imposed by
Suiciaiactaica ch sateat ani hda Laue
oe
PE URT ETERS E TPES ONES ONT TERE EE Ee
REE eS
148 Va.
[28] Citing Ferguson v. Ferguson, 169
Va. 77, 192 S.E. 774 (1937), defendant ar-
gues that, absent an expression of legisla-
tive intent to the contrary, all new statutes
must be applied prospectively only. While
it is true that the 1977 law is silent on the
question, § 1-16 itself expressly provides
that “proceedings” under a new statute
“shall conform, so far as practicable, to the
laws in force at the time of such proceed-
ings.” We construe this language to mean
that procedural provisions of the statute in
effect on the date of trial control the con-
duct of trial insofar as practicable, De-
fendant’s trial was conducted in strict com-
pliance with the new procedures in effect
on the date of his trial, and we find no
merit in his argument.
C. Facial Constitutionality
Defendant maintains that the 1977 law is
facially unconstitutional under the Eighth
and Fourteenth Amendments. He argues
that the death penalty per se constitutes
cruel and unusual punishment. Observing
that Furman, Roberts, and Woodson inter-
preted the Eighth and Fourteenth Amend-
ments to prohibit statutory schemes which
vest “unbridled discretion” in the sentenc-
ing authority, he also argues that the Vir-
ginia statutes vest such discretion in the
Commonwealth’s Attorney; he reasons
that, absent statutory standards to guide
the prosecutor in selecting which defend-
ants will be prosecuted for a capital offense
and which for a non-capital offense, the
1977 law is facially arbitrary and capricious.
[29] Both of these arguments were con-
sidered and rejected by the plurality of the
United States Supreme Court in Jurek,
Proffitt, and Gregg and by this Court in
Washington v. Commonwealth, supra, and
Jefferson v. Commonwealth, supra. For
the reasons stated there, we decline defend-
ant’s invitation to disregard these prece-
dents.
3. On brief, defendant also argues that, as ap-
plied to a male, Code § 18.2-61 (Repl.Vol.1975),
which defines rape (one of the elements of the
instant crime) as carnal knowledge of a female
against her will and by force, constitutes a
248 SOUTH EASTERN REPORTER, 2d SERIES
We are not persuaded by the contention
that the statutory definitions of the two
aggravating circumstances (see Appendix
A) are so vague as to vest the sentencing
authority wih standardless sentencing
power. a
The language defining the first aggravat-
ing circumstance, i. e., the potential “dan-
gerousness” of the defendant, is identical to
that in the Texas statute upheld in Jurek.
Rejecting a vagueness challenge to that
language, the Jurek court said:
It is, of course, not easy to predict future
behavior. The fact that such a determi-
nation is difficult, however, does not
mean that it cannot be made. Indeed,
prediction of future criminal conduct is
an essential element in many of the deci-
sions rendered throughout our criminal
justice system. The decision whether to
admit a defendant to bail, for instance,
must often‘turn on a judge’s prediction of
the defendant’s future conduct. And any
sentencing authority must predict a con-
victed person’s probable future conduct
when it engages in the process of deter-
mining what punishment to impose. For
those sentenced to prison, these same pre-
dictions must be made by parole authori-
ties. The task that a Texas jury must
perform in answering the statutory ques-
tion in issue is thus basically no different
from the task performed countless times
each day throughout the American sys-
tem of criminal justice. What is essential
is that the jury have before it all possible
relevant information about the individual
defendant whose fate it must determine.
[footnotes omitted].
428 U.S. at 274-76, 96 S.Ct. at 2958.
To establish “dangerousness” the Com-
monwealth must prove beyond a reasonable
doubt that there is a “probability” that the
defendant would commit “criminal acts of
violence” such as would pose a “continuing
serious threat to society”. We see no con-
stitutional vagueness in that language.
denial of equal protection of the laws. This
question was not raised below, it was not the
subject of an assignment of error, and it was
not argued at bar. It will not, therefore, be
noticed here. Rule 5:21.
SMITH v. COM. Va. 149
Cite as 248 S.E.2d 135
In our view, it is designed to focus the
fact-finder’s attention on prior criminal
conduct as the principal predicate for a
prediction of future “dangerousness”‘ If
the defendant has been previously convicted
of “criminal acts of violence”, i. e., serious
crimes against the person committed by
intentional acts of unprovoked violence,
there is a reasonable “probability”, i. e., a
likelihood substantially greater than a mere
possibility, that he would commit similar
crimes in the future. Such a probability
fairly supports the conclusion that society
would be faced with a “continuing serious
threat”.
It also appears that the language defin-
ing the second aggravating circumstance, i.
e., the “vileness” of the defendant’s conduct
in committing the crime, is the same as that
in the Georgia statute upheld in Gregg.
Since any act of murder arguably involves a
“depravity of mind” and an “aggravated
battery to the victim”, it is conceivable that
the language defining the second aggravat-
ing circumstance could be tortured to mean
that proof of an intentional killing is all the
proof necessary to establish that circum-
stance. We regard such a construction as
strained, unnatural, and manifestly con-
trary to legislative intent. The General
Assembly was selective in choosing the
types of intentional homicide it felt justi-
fied a potential sentence of death; clearly,
then, it did not intend to sweep all grades
of murder into the capital class.
[30,31] Hence, we construe the words
“depravity of mind” as used here to mean a
degree of moral turpitude and psychical
debasement surpassing that inherent in the
definition of ordinary legal malice and pre-
meditation. Contextually, we construe the
4. It should be noted that, while prior criminal
conduct is the principal predicate, the statute
provides a further predicate, viz., “the circum-
stances surrounding the commission of the of-
fense of which [the defendant] is accused”.
5. See also Florida’s construction of other lan-
guage defining a similar aggravating circum-
stance in State v. Dixon, 283 So.2d 1, 9 (Fla.
1973), cited with approval in Proffitt, 428 U.S.
at 255, 96 S.Ct. 2960.
6. These provisions are clearly in accord with
the mandate of Roberts and Woodson as inter-
preted in Lockett v. Ohio, —— U.S. ——, ——
words “aggravated battery” to mean a bat-
tery which, qualitatively and quantitatively,
is more culpable than the minimum neces-
sary to accomplish an act of murder. See
Harris v. State, 237 Ga. 718, 230 S.E.2d 1
(1976), cert. denied, 431 U.S. 933, 97 S.Ct.
2642, 53 L.Ed.2d 251 (1977).5 It seems to us
that these are the only constructions ration-
ally related to the commonly accepted con-
notation of the prefatory words, “outra-
geously or wantonly vile, horrible or inhu-
man”,
We note in passing that the Virginia stat-
ute contains a constitutional safeguard not
explicitly articulated in the Texas statute.
The 1977 law provides a list of mitigating
circumstances which the fact-finder is re-
quired to consider in pari materia with ag-
gravating circumstances. The list is illus-
trative and not exclusive; the statute ex-
pressly provides that facts in mitigation
“may include, but shall not be limited to”
the items codified, and that evidence may
be adduced to show “any other facts in
mitigation of the offense.”* Code § 19.2—
264.4B. Although the Texas statute was
silent in this respect, it was found to be
constitutionally sufficient on the grounds
that the Texas Court of Criminal Appeals
had “indicated that it will interpret .
[the statute] so as to allow a defendant to
bring to the jury’s attention whatever miti-
gating circumstances he may be able to
show”. Jurek, 428 U.S. at 272, 96 S.Ct. at
2956.
IV. THE PENALTY TRIAL
A. Commonwealth’s Instruction “1”
Defendant challenges Commonwealth’s
Instruction “1” because, he says, it fails to
98 S.Ct. 2954, 2956, 57 L.Ed.2d 973 (1978)
where Chief Justice Burger for the Court
states:
{Tjhe Eighth and Fourteenth Amendments
require that the sentencer, in all but the rar-
est kind of capital case, not be precluded
from considering as a mitigating factor, any
aspect of a defendant’s character or record
and any of the circumstances of the offense
that the defendant proffers as a basis for a
sentence less than death. [footnotes omit-
ted].
Sadtanpher County Murder case of 1799.
IWS CAS 18 a extremely Complicated mess. Bit
Ye Loto Ine 13 as Follows *
JERRY * — Dechted ar for and pardoned,
Old Saw’ Executed 4-11-1800
{Saac : Lied ta Prison
Isaac the Hatter * Fate undetermined.
Saurciing * Boxes 110, 1114 112, Exec. lepers
of Governor James Mource. Va. Sake Aresves.
Synopsis * On October 16,1799 tv Stave drivers
tamed Joshua Butte and Harris Speirs, (residents
of Gewyla), were tn the toad beluetn tne Villages
O Serysalin and Broad Witter with a slave Prats
2 toute trom Maryland %o Cearysa-sdéhen tye Slaves
got loose wid Killed both 11011. Shey also terrorized
the Surrounding countryside before four of teen
were rounded ya. V four were promytty Condemned
Fy oath by a outeanyphon County Court of Oyen
A Termier snd Slated to tang 07 HA2E-29. But
hepslistic complications veloped. ft was argued
Yt te detendarts Should not have beta tried 7
toe Southampton County Shave court because they
were Strangers tt tavas(t dad thereby did rat mec
residtricy 7 a OF that Court fr Wits ago
Wicd tha tity were free nerues of Mit yfand
bad been iMlegally abdircted by the Scat
tnd were therctore tatthled 10 trial btfore fhe Lis-
tolet Court instead of the Caunty Sfave triburral.
These points of baw touched fF a legalistic
Chess gawme. which lasted well ato tre fo/flowting
Sear. Governor Monroe, (toe future President) issued
>i ae COME Are teed
quarastineg hae been decteed
he city x
Aispatch from Reenoal Ayros
the situation im the Ar Zam bi
Humboit i« serious tn be ox
he colony of Josefina hase folmed
ment Jocires have been ne
nd the Nathenal Guard has
» worve >
are will! tn a ecritieal eondttion
vinee of Corrtentes, The offer
vernor of sinnesty te the re.
ae not favorably revel vert,
Regan Obtaining Street Rallway
onecasions from Chilh, |
ork, Feb 9 —A Valparateo por
‘ft telegraphs to a morning paper
arne| that United States Mijits
is making an effort te obtain
Chiltan government a codceetion
rivilege of running ese Care
rajiionds He fs a@ to he
beghalf of a New York corpéra
in 2 said to be wiging the
nf to nominate the Chitiaa arbt-
nder the protecal relating te
eh was arranged before his
for the United States, He te
e seting un ier tuetructions ftom
of State Foster, with a view,
wht, to permit of bis own ‘ap-
f as one of the arbitrators for
i States
President Montt and
e fact
of VPereigo Affairs Errazort:
g sont within a few days, tt
| thoygkht the appointments will
hef€re the middle of Match.
‘ting of the eonceasion for jex-
We-aiso regarded as tinprebable.
that
in.
r MEXICO, ‘
Matters - Ne Extradition of
Is Revolationiste Demanded.
City, Feb 9 —dSpecial.)—-Re-
it work is suspended on the
pec Rafiway, a fo the want
are unirne, Over half a mil-
ars ik ready to prosecute the
nies od the atrival of the heavy
iterial caused the delay.
eputies and a cominander of a
Vera Crum bare aed, owing
wiutment of General Herrara ts
4
cretary of fo affairs re-
e Iniernational Press Asso¢ia-
‘epy that Us goverument bas
the extradition of Benavifies
Toxas revolutioalsts. :
Romero, secretary Of the treagu-
for Washington ebout the 20th.
| Hiernandes's Sentence Com-
miuted,
Feb. 0. President Diaz
aoe comiuutation of the death
parsed on Colonel Nieves ¥ r
if yeare’ imprisonment, this
ag the shortest that the prqsi-
vit could be fufiieted.
THE DOMINION,
Affects of United Mtates Treasury
Kegaiations. Bi
ork, Feb. 0.—A_ special "from
save. Sowe of the receul trehs-
atlouy ut Wasbhigtun are likely
lyusiy felt by Moutreal busiless
bas teen unponneed that hi
ve juveices originatug im the
tater must be forwarded fo tri
‘uiosworn to before a bolaty-
ose regulations ob Invoices cop:
Catada 25° cents wit have to
on each to cover yotaries’ fees
hited Riates, Several merchaste
eived woufcation frota their cor-
sis }o New York tnforuitng thew
cw rule.
CAKLE. BRIEFS.
aieverd, de Bouchage,
Miia! thLorovgbfares of Nice, 7"
bPoewlay aight of & inost dert
“General Custroix waa procedd
the
one of
lig getting away With bis watrh
eval buidred france to money.
ong of garrotlig und tic cmpe
heh the
uch slarm as Well oe tudigpation
wth forcign visitors and veatdatite
waik sailed yreterduy for Cadts
een tons of Freach govermimegit
for Chicago. Admiral Bentam
officers were cutertainad ty the
and the local
itality of the admiral
ark
idersteood that Mr. M. J. Ruenuy,
pelite wember of
Ne Tyroue, has abandoned his
on of VY. Maboucy, fo meny
+ wenber of pariiament Tor
eath. who biscked Kenny's eye
ur courts for haying called ”
on board
gother
i Hindow
ssiguer Grlulinten appointed te
Cevion at the Ciieago werld's |
sail for the Tomited oe OL
er Olty of New York,
—
vodvooms sete ty -aeucthon this
Oo. #9 Royal street, uear Bich-
POLI ICAL
resham Not botuy Any Talking, |
; Matin,
t known bow seriogs!
Feb v.-Jadge Gresham wan
duy for a confirmation ar devixi
rt that he had heen offered tie
if
ship of state by Presdent-cleet
tte Velaod aud that the offer bad i het bi
eat sete
lef the Sourhern }igid ‘Trial Club
‘chester and Warttade Kenneis’ setter dog Sport
| weg fret monmoy.
| ter
| Thayer's setter (le
| age atake waa imp.
+ eution.
(2200 pm, wher
filin the order o
42:4) life war p i
attending physeldan, — ah
‘ _ without @ struggie, No one claiming the
honleverd ateout Ii oc cioek, ©
ultacked by gerroters, who | ' : ‘wo the “Au bps en Vricks
outiawa evade the puitce |
officials received |
partiamepe |
tu a public address, & pot certifeattion «
; will
{ Sandgedens +) ii
| ite vearlbule, No
M Ann Ratibwm
Cathatine
Eiieebeth Mickering, Geolo,
Mary Cogler, Diver.
Sarah Sweet, Rhohester, ;
Sarah Huetin Dover.
Kate Duffee Ddver
Herah M'Mingedk. Great Fate. =
Fannie Sigter, Great Fatie.
A HM Derthatt, Dover.
Addie Otla, Great Fatis.
WN. M Derhbatt, Great Fatie
+>
Six others, wihgee names could not be
| remembered by the keeper, whoee books
were bugoes in. ang rere
THE KENNEL,
ee ren
NEW ALBANY FIELD TRIALS.
New Albany, Beh 0. The weather today
wae wanner, tut Wafavoralie for gad work
| A strong widd wag Mowing all day A ran
om forty mingtes this morting, between Dick
Fox and Sport ehded the fifth anoual Derby
The Man
Te Bive Ridge kennel's set-
doug Dick Poa: wae es wond, Avent and
Jaxhiovar adn Cheval.
fer and Jackson fod Denmark kennels sett gr
Lillian Kyesel) winding equal third, The A
lately begus, The Judges
were F. 1, tong F. Rogers and A. M.
Young.
There was to hard been nineteen starters in
thim stake, ie r. VP. Lorillard’' noted Held
trial winter, » ead to be withdraws oo a¢-
count of sicknemi, )
Bu far the w bf the Allage . a8 a
wha@le, is below {h¢ standard of that of thy
Derby . Noreligt and Jesse James was
» the first Allage a rah, Novelist doing mux
/ better work in evefy way, Gleam second,
Rupert next ran, Gleam outworking Nupert,
who was. sick. ‘ooper bad more range and
spead than Miss by, and did Ni Il the
work on binis. F finder third te i.
then ren with about eve
work was only fate.
Betty &., in bi
dustriousiy, bat ve little on binie. Jedn
spoiled his werk by ng too headstrong, h
range and style lexcellent, Lady Margaret
ran nicely by Kugendg, outworked and outrangdd
her. Antevellg had better range and speed
than Rex Kio did, : outworked Lim on birds.
Zulu M. and Jackthe-Ripper next ran a vety
poor heat, beth ing a number of Sust
and neither getting, a polut on
Gnished the work of
mont are yet to rhn im the first
sinkes A fox wits tured joome
even}
t
ami about forty (men followed Mr.\ Avent!
¢C
bounds oo the
er sharp i arroas the
en} all conti w® town.
eet eth ee tom
oh ne seme
CRIMES AND CASUALTIES, |
A Virgigla Negro Hung.
Sotfoik, Va, Heb. W.-Jobn HK. Hoyster,
the negra who rdered J. P. Eppa, ot
duly 1, 1891, dx plated his terribl
ou the gallows inthe county jali yard
day,
u large es tit
including white a
the town, Who réad the acriptures and
prayed with hith jatil the bour of exe.
He was
tion, and gave)
eondemiued mai
inake any cOnDeC statement.
Prayers were «
for lim, At 12:27
oftpced extinet by th
He died simos
body, 3t was burtet by the authorities.
Life.
Pittaberg;: Feb, @.—The trial of Cert
Notd and Henry Bauer, as accessarios to
Bergen, the gnarchist, in the attempted
hotling of Henry iC, Frieke last Jwy, wad
begun before e Stagie today. The
charge te cots) of being accensorics
, fo a felony « men are enthusiastic
t
fudietment grows peut
fuarchists and
of the action of the two men whe wet
to Howestead, where they distrituted an-
grohbeth ,
Iriel to excite them to not. Bergman,
whe in naw servip a term for the crime,
was brought ove: abd identified.
Anu. FP, Potter Convicted.
Howton, Ve. 0.+/TPhe
Asa V. Votter, ef
rupt Maverick Bau
dent of the bank-
checka, ft
rendered g verdict gaitty.
The verdicts fad y. Potter guilty on
fifteen conta which cover
tive charger of over certiicatiun
aw fo te
Rote
fer the orlue ii
The
miele ut ke
fe « fine
| Youre hopriaogoey §
Auuther Halirosd Wreek in Dilinwis.
initiene polis. ina feb @- The Vania-
gt 2-50 p. m.. Jum
hi. ai * DOO ui
ti» firetian ia re to have been
oanly tujured ‘
talonble, "3
5 ae
A hide.
Halbeyr. We era
thelr (
treat with Jean, hunted in-
binds. This
teday. Jupiter and Tre-
es of the
e crime
Le
ioyster Wha visited in the jJall by
People this morning,
d colored muilaters of
ead to the seaffold at
Sherif Haker read to
1@ Court for his execte
mm 6h Opportunity to
say anything be joight desire; pat the
ae tou frightened to
op the seaffold
6 drop fell, and at
iiteratare among the people aud
ury in the case of
ho ta eel with
moruing
practically
‘The cise
ht supreme court, The
twenty fre
ot-tomud; dwe here
© treck pear Van,
to Kise, and tarhed her reyas om, BYES
Another fact worthy of remark t« that,
wherene the king is excessively poor
indeed. all bie male relatives are th the
same etraitened cironnatances—
THR TWO QUEENS,
on the contrary, are very wealthy,
Marte Amelio charting recetved a
dowry from ober enermoualy wealthy
father. the connt af arta, while Queen
Pin bas net aniy inherited a large fort
une frow her father, the late King Vietor
Emmanuel, but, tmerpeyer, rerpires A
jointovre from the Mortagnese freasury
ar the widew of a Portuguese eaverelgn,
together with # vety munidoent grant
the Itallan tres@ury a@ An Itallan
ween
rom
“wpe mee the wealth of these
two queeas {a met witho wt its
considerations, for it enables
polition rage
hem te play a much mere important p
in politica, | whic h, pine semn, Feretnr?
“metaneee, they coeld feo
ville Gaces Vin appends her eet 4
generously and taviably, ile geen
» wpulartty, ber ¢ 4 e
opens Slane Amelie, hoards Ter Rebeyitngal
ces, baving ADT ON eee ann tredl-
ouy which te 60 he :
femal ie the royal French house of oe.
leans, Byvidences of this. are appare
on every side in her household. ‘
Never in all my eaperiences bare
acon mn court more tawdry than that of
rertagal, The royal Hveries are tar-
rished apd shabhy to an lueoncelvable
@egree: the wriix of the great niarbie
palace cf Adjndad are all mildewed and
Ciscoiored with damp and vegtect, and
even the bayouets, (he gups amd the
metal accoutrements of the sentries on
duty at the various entrances of the pal-
ace are stained with rust. Nowhere ja
Eurofie, pot even at the court of the
soaitek and most impoverished af petty
German princes, ts it possible to tad
such» extraordinarily antiquated = and
shabby conveyances aB the state car-
rianges and eoaches of the Portuguese
king and queen. indeed, the ouly feats
of the court which may
pl uxurtous is the, royal
eh is really very ne
rerthy of u
ed of Italy¥ o
trin, and of thea pipe 9 ermany.
Few people afe awar m-
bers of the ie Louse
tugal have quite a stron
veluped strain of Hebrew
ir veins. This was ug
one vecasion to one of the Por-
kings, distinguished by his per-
an atred of the Jews. Thor-
nti eti is ideas, be was
invgfitin ‘ds of persecuting
, and eveu went so
» banishment ali
fuvertad Jews frojn. the
' same time, be isgued a
effect that gil tho who
y tainted with ebrew
id ‘ white hats. The
sterfiuding remonstran¢ces and
1, pretended ¢omp!i-
edict apd presented
ance with t
jesty, drawiug from
himself to
underoeath his
which he sotemnly plaged on the table,
The astonished king inquired the meas-
jug of his prime minister's actions Said
the latter: “L have ouly come prepared
to obey your majesty’ comunands, with
oue hat for you aud the other for uiy-
self,’ thus recalling to the monarch the
fart that the house of Bragausa was vot
altogether free from Hebrew straiq. ®he
king had the good sense to taughy and
to cancel his decree concerning bes bats.
Another very sular and remarkable
woman of the royal bowse of Porgugai is
PRINCESS ANTONIA,
of Hobentoliersn, mother of the Crown
Prince Ferdjnand, of Kouwaula, who was
marries the other day at Signidringen to
Princess Marie, of Edingburgh Princess
Antonia was formerly a v fatuous
beauty, tall, most graceful, ant
a commanding tgure. The daughter of
Queen Maria da Gloria, of Vortugal, aod
. wasequentiy af the present king, |
tie aunt coasequentiy af ¥ & | tek ter Row: Critene. ‘Yee Beate of Kanne te
(everduc den.
she first met ber hushand in ISO), when he
came to lisbob to escort baa sister. Ste-
banie, at the
Ling Pedro, of Purtugat,
princess has resided ujumgt aliugether ia
Germany, oud hae become Ty every aetad |
ef the word «a Cerman Bei, unlver-
saily beloved to ber @topted copntry,
where ebe is celebrated mot only fer ber
cieverness aud wit, ant for (he promise ot
part whieb she Las taken in promoting |
; Shrwreyort, Reb. Wo Li-Taw Vide |
| Queen eft todsey for Noctiliclonms,
Phe State of
seriaab art and iadestry, tet alse hy
regsou of ber great piety and benere-
leno,
widewed Empress Prederick, the two la-
dive Lavin iauy Artivtic tastes im corm.
Muli. ARQUISBE DE FON TENGY,
NECROLOGY.
doba F. MoCarty, M. PV.
Loedou, Few. t-—-doo. FF Met arthy
P. for Middle Tipperary, is dead He was
ejected te Joly st 6s @B act--Paraaliitey,
reoviying G04 Wetes to NAT for My 4 ogy
way, Marnelite, aod 3% fw bicuinu
Arinstpong, censerv ative
net cmcocones ellie ve
A check fur O27) bas tenn fectived by
teodent of wlucetion ef
€
borough was ordered to
tw eee ore tor ° oe of the gout
ime! a8 wetrial way Ceadegee
that e
Pade ceoerreeeaiernt tare
RM a te
i?
j nee, HK. Bupeie,
| Erte, HMousten, Tex ,
| Louisiann; MOO
\
'Qaiter, 1, MOOR
ih &
| bead end wife,
on
+h. ;
be described |
rinon with those of |
emperor of Aus- |
cloak two white hats, |
(te pleased
| guests free of all charge.
yet with >
| Henry Ma
time of b marriage to |
Sinoe then the |
i Tee State of Kanes te
i. Mo Mamm, president of the Apohor Line, tw |
Orteane at |
She is au iuitteate frleud of the |
; Ketane areived at
| Tae
j peed op at @ pp mm.
the astute & :
North Ox fro te. J Lb. MeQaurey,
ef Waebic oe. . who bas partial |
re Adige ned We sbence a Be or 9 | Ortewam, we Gwe bere Be the ruin
Baron Gowla, La. Wy P,
Hargrove, Shrevrepewt, La.
Oaptain BOM. Heary, Jacke, Mie. 3. Birech,
Jacko, Ta.) Jee Po Mille,
Robert BTurner, New York: M. Mo Howard,
Hance aml «ifs, ny
O Snitivan, Thetrdt Mek
King, Amite (itr, Lac. De AL RB Wrtro
Petersburg Val, & Lengestreth
wife, Chieags, Dll; A. Beer, Belleriite,
fie, J. Btepheneom ami wife, Hemgor,
Mich; Joho Poltevent, wife emi children,
Pearlington, M tas.
Hetel Royal arrivela: James Bprucum. Mrs.
James Speucmm, Mies Bprroum, Mise Mamie
Srucom, Mt. aml Mra WN Headly, Chi
engo, Mra. Haines, Monroe, La.) W. L. Smith,
Monroe, Ta.; Geo Spellgam and wife, Chicago;
M. M. Flower, Minneapolis, Hea, W. Lawrenes,
Milwankee; Hy, Witeen and wife, Purilngton,
Va; (hes. KB. Abrus atl wife, Newbary, N.
Y.; B. G. Kkerman and wife, Fheetda, BA.
Conrad, Milwaukee; E. B. Webb, Plwida B®. ~A.
F, Howe, Terunto, Avg. Fo Gunrad, Milweukee,
—+
AM JSEMENTS,
eirnath, Obie 1 M
“Kadarnonde,’" Maasenet's great Uarialan me-
come, will be pr sented at the Freech Opers
House this evening for the first time tn Aumeri-
cs. The opeta is easentially apers oomique, of
the, modern sehod, and ie replete with most
delightful melodies.
mane particulariy iuteresting by the handsome
stage setting, several drops and pleces of the
Momus tablewux having been loaned Manager
Mauge for the purpose by Mr. Frank (Coa,
the scenio artist. The cast wil! inelode Mr.
Gluck, Mr. Hourdin, Mr. Coutellier, Mile. Boge |
“La Fille de Mme, |
LYelopmente of the i
dues aud Mime. Naaat.
a frand Peaduction — Fanny Deveaport aud
t Ue tha “Chines
7, which the company does ex-
will be repeated to-night.
James O'Neill, the popular and accunplished
actor, Cotnes to the St. Charice Theatte Sug-“@he other ture
| obate.
day night in his new play of ‘‘Foatenelie.””
The “Tar and Tartar’? cones tack to the
Academy of Music for Mardl tiras week. Soe
new Solos and topical songs will be fornatuced.
“The World’ will be at the Garden District
_—" Bext week,
Me youtgseters of the Destitute Orphan
Buys’ Asylum, of St. Charles avenue, are to
have & minstrel treat ou Saturday pom The
matron of the asyluwn yesterday waited up Mre
Imvid Bidwell, proprietor and manager of the
Arademy of Music, desiring a reduced rate of
| admiswion for her beys, and to ber delight wus
informed that Mr. Bidwell and Mr. W. 8.
Cleveland, wanager of the sulestrels, would
to entertain the boys as their
(m Natarday evening the Theapian Gleb wit]
hold a reception at Mist Hoat’s Duacing
Acadeuty, on Maguzine, acer Javkwou street.
ADDITIONAL RIVER NEWS,
Special Dispatches from All luportant
Points.
Baron Sera. Fed. 9 .. Special. )—The woather
te — aod tbreateulng. The river ta TT
feet falling. Leperted for New Urivens:
BE. CG Batteries, at 12 om. Up: Natédbus, at
m. Ouachita. at 14-30 4. us Warren,
ot 3.40 p mw; Teche, at @ p. m.; Hallette,
aS pm -
Natchbea, Feb
Vise feet
ot S&S p mr
9. cBperial +The river te
i rising” Departed up: Natches,
own: Steiy Wilde, at 8 a ui;
, > 3) a.m The kmeps Meury
calee im aight apd will ivave im the awre
The Weather te cioudy saad
warms
Vickstery, Reb. & ORpecial >The river rose
S im Ube twenty four bourse etal ata p. mm
with 6.9 fewt au the gange. The Umited Stare.
eer Heary «ane dows a: Yl a. wi
thie doen. Cuptain
m the vity, and leaves ke New
@ideight. The weatter @ warm amd chanty
Vicksburg Feb. 3... Spectal >
19 teeigut Gat ie the we.
tor, amd leaves et i
rleena.
(taetematt. Fen @.-Hiver Bo feet end
Hatkeury. Reeting.
tours the guage ot 5 pm
Cortod State stungtten t
19 Sewt.
juin ON. Marcenb
ed warucer.
iain, Ket B—penial ~The weather indi.
mikes “ofe Kermer, wie mae The stage of |
ihe river we BG tet, a ree af 2 i
The Duceppe Mate orived «tf WB s. m
Sie debe +) tlion af lathe at
eles, aad de oeattwyp = ts Clack
imei h
Tie Jape BK. Bpeed, fram Chocimmati we New
Aivammire, Feb. 9 Gipewial.)— The stenmer
Fr. Breck wobte amd «ite, |
Richewet, Ve: |
i firet couvered to the
| the Aseociated Pree.
1) Frepeies tt
The sesmd act will be
ne
er © great actress gad |
armeereyeare
t Were midi J
| tied Minister Srefe
| duced the resolution.
| Bis fese) ution é
; @noesation of H
| gaid, information
' ot the Uattet
iu the marucing fur New |
' fureign affairs come
The wvaiber te cloudy | Minister Steveus
seek poreresion of 1°
Hawalian matters
® apirited little acer
gins and Mr. Mills
metectorate tad te
jawail br the Sane
eprom?
om the Rowe Mer 4
Yigurena er ttle ag
the minieter aad ‘
ity thie piracy ae Re
cormemittied’d aml by
American fag bad Bb
isteands, This arent
tort with an begat}
tty eon te shown
serera! Maga «ov afy
past in the etate «
Piception here nulls
be a general feet:
affairs have teken 4
foie aftermewns hs
Shoners received a te
M. Cock, anneneciey
Francliacn wtth diaper
the provisional gor
pectsl to reach be
aftraven
late tonight Seep
ter received the fall
Miniater
Honmelvin
Fett 2 Rar reser’ as
government of \e
and respect Rre
Hexation seutiineme
monarchy amd op
ia supported chietiy ?
ring. To-day at
wit the wtel af?
ernment of Hawall +
Stevens |
Fel)
| protection dnring oe
terfering with the
affuira, Dispatched”
particulars ‘ox
Speaking of thie?
Psituatio;. Stcretary
i tiow af Minister Siigy
| Hawallan islands ap
of the Trtted oSrates
instroctions fram 4.
state In feet, the g
of rror arnt ha
hot been an Ucipat
Washington ie a
fore, been com pel bed
and npow his best je
gvocy tad ariseny —
given by the depart
gram of (he IZsth a
appreving Mr. Ste,
the provistoual ger
partowtich hid ©
n rey
Ue bad beer
to pretect Americal:
ty oi
There was ne ¢o
tween the secretary
Wallan com mies}oute
“dipiematic duy” at
Ye negrerary was fr
eas of fore ia mabe
were those of (Cres
Italy, Nicaragua
Nr ta understuad
Wallan comission
tary Foster to- worry
aes
STATESMEN'S VET
SYEVEN®
Washlugton, Febo
actfon at Miotster Bt
ject of general cat
after the excitcunt
bad died away. it
of the Republican @
with a mixed cede
cratic aide, the pFe
that eile, howevers
forms to ao cotati
to aneexation or
the committal of Go
tive branch of Une
roe en es
i goaduct upwarraiit
Rayner, of Marytani
forvigun affairs cou
thus |
ma
emergeactca of t
Am an wmiuiste
thong from the sia
aise the provisiog
mest, of did be
thous ; ae
‘The object is te
of Be a
arvate protectorate |
| of Congress.
Opewns tiie, Feb. % - Special-The river bee | *
dieted jamt Thy feet m the past twenty- Moar |
Representative 5
Yaola, @ reprrecota
i he
protectera tle
wn of the
duct as that
Russ, Calvin. White. age 30. Arrested for and confessed to murder
of wife on 13 Sept. 1846 in Richmond, VA.
"Mrg. Eliza Russ has for three weeks past resided at the house
of Mrs. Buchanan, No. 131 White Street; her husband being a chair
painter working for a Mr. How, at Albany. Calvin Russ, her
husband, desired her to comr to Albany, wrote her several letters
to the effeet, but did not send her any money, and she could not
therefore go to him. Becoming impatient, Russ came to this. city
yesterday morning at 6 o'clock, and proceeded direct to the resi-
dence of his wife, and remained with her in her room for nearly
the whole of the day. It was their intention to proceed to Albany.
by the 7 o'clock boat, but Mrs. Russ, desiring to have a dress
finished, which was being made for her, they concluded to remain
a day longer. During the afternoon it was observed by persons
$n the house that Mr. Russ was intoxicated. A few minutes be-
fore 7 o'clock a heavy fall was heard on the floor of her room
when the persons who occupy the room below said that Russ must
have knocked his wife down. Immediately after, he came down-
stairs and met Mrs. Buchanan, smiling as he passed her.
Two or three minutes afterward, Mrs. Buchanan went up to call
Mrs. Russ to tea, an@ when she opened the door, she beheld her
lying on the floor, with her throat cut from ear to ear, welter-
ing in her blood. The monster, who committed this unnatural deed,
must have held his victim in his arms, and must be considerably
marked with blood, as he left the prints of his fingers on the
room door, and the sill of the window at the stairway is also
stained with blood. It is thought that he proceeded direct to
Albany by the 7 o'clock boat. He is represented to be a man
of about five feet four inches, brown hair, and rather sandy
whiskers, is about thirty years old, and had on a straw hat,
light sack coat, light pantaloons, and satin vest. No weapon
was found in the room with which he could have committed the
deed. The maiden name of the deceased was Trowbridge. She
was about twenty three years old, and very neat and genteel
in her appearance, and was married to Russ about one year since.
Since writing the above, we learn that Russ was arrested about
8 o'clock this morning, at a house in Orange Street. He
acknowledges that he committed the murder, and appears to be
perfectly indifferent to his fate."
Richmond Enquirer, Mon., 14 Sept. 1846, p.2.
From New York Evening Post
They were executed during the month of May.
The authorization tr the Shermt of Jury (oun ty
10 kill and mutate them 18 dated! May 2, 17/0
in brder Book of Si Urry County Court. “
\
f
The body of the other slave, Scipio, was to be disposed
of in Gloucester, nian. Ment and Quenn Counties, "!
Ne eHANG BY THE } Re ee " pages 95.96
> Qo nice) (ages ta
hice ha EE pli
Ltr. dtd, a2 3=1985 from Philip Schwartz, Va. Comm, Univ.,
Rich., VA: Salvadore was property of Jonathan Jackmans and
Scipio was property of William Edwards, They were hanged
in Gredhct Daeheck. [li level Pore:
/
atin: See page 34/. Surry County Order
SALVADOR AND. SCIPIO PCE PYF 7
Ste Véverse. —~ - Book 164/-/7/3 .
plotted a Tebellion: one was_an_Indian_named—Salyador;—
, Wiz, his head to he delivered to the sheriff of James
City County-and by him-sett-up at the city of Williams-
burg." Two ‘of his cuarters likewise deliverel-_tothe——
sd. Sheriff of Janes City and the other two delivered
-- t0- the-Sheriff-of New ‘Kent County be sett, ip in the most
_-publick place of the said County _and_the other two
quarters to be disposed of and sett tp as oe uStices
--—0f_the——Goynty— of-Surrey shall think fit to direct.
save Maggy SAM
"seein 1769 a slave belonging to “William Booker was con-
victed of rape and sentenced to be hanged; the Court
valued him at ninety pounds." HISTORY OF PRINCE EDWARD
COUNTY, VIRGINIA, by Herbert Clarence Bradshaw; Richmond:
Dietz Press, Ince, 1955, page 33. His source: Prince
Edward Order Book; ):232, Order Look (767-1770 [Pye A5
‘Executed on 9-16-1769 for suping
Frances Whitlock. Valuation X90.
SAM, Slave, hanged Monterey, Highland County, Vaey on Septe 26, 1856,
"The Staunton SPECTATOR says that Miss Sheridan, daughtkr of F, W. Sheridan, deceased,
of i phland County, Va., was arrested Monday week, being implicated by the negro who
was hung for the murder of her step-father, as one of the persons who instigated the
act. The young lady is about l6-yearseold, Her mother, who is in prison on the same
fharge, is about 35, The negro confessed that he killed Sheridan, after furnishing
him with liquour enough to stupify him, by twishing a rope around his neck until his
neck was broken, Mrs, Sheridan was a lady of good standing in Highland County, and
her daughter a very accomplished young girl, Mr, Sheridan was a young man, 2l-years-
old, highly educated, and was engaged in prosecuting land claims in Highland where
he became acquainted with his wife, who was then widow Wiley, and married her. After
marriage he bacame dissipated, and it was for that that his wife conceived the horrible
plan of taking his life," RICHMOND ENQUIRER, Richmond, Va,, 10-17~18563
"Most of those who notice such occurrences will remember the recent publication of a murder
in Highland County, Va., in which a Mr, Sheridan was the victim and a young negro man the
Gulprit. The negro was tried, convicted and hung, The following narrative of facts pre-=
sents an appallling sequel to the storys: Sheridan was a highly=educated Irishman, about
el-yearseof age, who arrived in Highland County from New York about a year previous, Ina
short time he married a widow Wiley, who was living with her children, five or six in num-
ber on a farm near Wilsonville. After his marriage, Sheridan became intemerate in his
habits and lived unhappily with his wife. At this time, it is stated, the mrder was
committed by the negro who made confession previous to his execution, His confession im.
plicated Mrs, Sheridan and her daughter as instigators of the deed and contains some things
too shockiry for publication, The mother and daughter, however, were arrested on Monday
week and committed for trial, Mrs. S, is about 35 years of age and the daughter 16, They
are quite independent in their circumstances, very respectably connected, and have: hereto-
fore sustained irreproachable characters, According to the negro's statement, Mrs, Sheridan
sent him to look for her husband and bring him home, he being absent on a spree, He went to
several places and at last found him, and easily persuaded him to return home, Mrs. Sheri-
dan and family immediately left the house, as she alleges, to avoid seeing her husband,
The negro furnished Sheridan with mre liquor, and when he was comletely drunk, proceeded
to mirder him, This he accomplished by twisting a rope around his neck with a stick until
his neck was broken, The mrderer then left the house, and after attending to various jobs
of work in the neighborhood, returned three or four hous later and carried the body to the
place where it was found." TIMES, New York, 10-22-1856 (2-6)
“SAM ~- "WORKSHEET wT o Virginia - ar ae up = bound.
onterey, Va., on 926-1856.
ea cor ERA nakktsbes an account of a ee
der in Highland Countyses4 widow Wiley, who chalenall se
lastfall to an Irishman named Sheridan, finding they
could not live together in harmony, employed two caneae
to kill him, The negroes who were subsequently ohn re
confessed their guilty.They state that ney gfe ar nin
ae a oa va, rae a i twWe understand
ENQUIRER, Richmond, Vaey U-2l- ° aoe de tigated
the negro man who killed Francis Sher
soles was jcabinat on August 25th to behung on Segoe 29
1856, No evidence apparing against the — ru
harged as an accomplice in the murder OF aothe ee
cra Geecharged," ENQUIRER, 9-16-1856 {2-5)5 "The negra
aa dem; convicted of the murder of *rancis We
2
tad
_ execution," ENQUIRER, Octob >
See-Virginia, not ‘written up, letter Beek “hae
William Wilson received compensation in August, 1857, for
Syave S,m, executed in Hyghland County, Vae for the mr-_
der of a white man. This is undoubetedly the same, Pro-=-
vided by Shwartz, 7-6-1985, sourcingr Virginia T,easury |
Virginia State Library
‘O fice, Cash Disbursement Journals,
~ € e
Library of Virginiae
lt a enrol : as spectators -of--the-——— +
bout 3,000 persons present
were a 39 er 8, 1856. (2=5)0 cose
‘and Virginia Executive Papers, Letters R,ceived, State
———y
Slave SAM, hanged Lancaster County, Vasey probably on June 23, 1828,
According to Report of Auditor of Virginia to the House of Delegates, dated Dec.
31, 1831, the owner of a slave named Sam was reimbursed for $375.00, Said slave
having been executed in Lancaster County, Virginia. This is undoubtedly the
following case:
"(From the RICHMOND ENQUIRER) - HORRIBLE ATROCITY! = we call the attention of all
the good people of XH&X@H this Commonwealthto the following description of a most
atrocious transaction, The hue and cry of the whole country ought to be raised for
the detection of its abandoned perpetrator:
TO THE EDITORS OF THE ENQUIRER = Lancaster Co, (Va.), April, 1828. A murder which,
for its daring and brutal character, can scarce find a parallel in the record of
crime, was perpetrated in this county on the 8th inst. On the morning of that day,
Miss B, George left the residence of her mother to visit a relative not far dis-
tant (a few miles) and about noon of the same day her lifeless body was found, dread-=
fully butchered, and bearing the evidences of the most BRUTAL VIOLATION, <A road
used as public and much travelled, was the scene of this horrid deed, Miss George
was young (about 18) and handsome; of respectable parentage, and of the most un-
blemished character, We are in the general, an orderly people, and not much accus-
tomed to look upon crime, and I can give you no idea of the deep feeling which this
oce urrence has produced, An innocent and unoffending female VIOLATED and murdered,
in a public road, and at noonday! I can scarce conceive a sufficient degree of dar=
ing brutality for its @#aMM@fkXXX accomplishment - but it is so; and even amongst ust
God grant that the perpetrator may be discovered. /s/ A SUBSCRIBER." COURIER,
Charleston, South Caroe, May 6, 1828 (233.)
"From Lancaster Cos, Vae,y April 26, 1828 = On the morning of April 8, 1828, Miss Be
George left home of mother to visit a relative who lived a few miles away. About
noon her body was found, dreadfully butchered and bearing evidence of brutal viola=-
tion. A public road the scene of the crime. Miss. George was 18-years=-old,"" RE@
CORDER, Hillsborough, North Caroe, May 1, 1828.
"In negro's confession, he stated he was a fugitive slave who was concealed in Miss
George's kitchen where he heard her tell servants she was going to visit a neigh-
bor. He followed and attacked her on the way. She resisted, saying that she knew
him and would have him punished, He then gave her a violent blow on the head,
stunning her, and raped her, He then killed her, Caught a few days later as a
runaway. He ran into the woods, attempting to escape, but was caught," RECORDER,
Hillsborough, NC, June 11, 1828,
"The perpetrator of the brutal murder of Miss B, George in Lancaster County in April
last has been discovered in the person of a runaway negro who, on being apprehended,
made a full confession, He is to be executed on June 23, 1828." RECORDER,
Hyllsborough, NC, June 4, 1828.
.
EXPOSITION,
ne et Condé preg la Place
Armes. oO athht tials
sflammes di <
lernier incen.
lité
fait toutes les circonvo-
Gsirer, et. parcourt facile: |
FJjour, une dame et_un‘ca.
cer commoMément,
“@
1 Qui surprendra agré e.
VAMORPIIOSES,,
Vrirg les persunnés qui y
4 a ’
OR.AI “1 oa
‘préscntantylea principales
intre partied du monde.
INETTES,«" :"
wirctles A 7 heures et de-
¢-loilou les Pluisirs de
Jets curietx, Mex pos
" répilidrement, dew
c3 sont onvemes tous les
lemiv A dix heures du soir; | -
tre, enfans moitié prix, a-
Scing piustres, 2 juin.
SSS
articuliéres,
recomuandée, possédant
gue thigrain, et connaissant
jais¢ et latine, désirerait
couple d’happees tous}
ns partiéulidres, $’adr&
itte feuitte. ° . “4
{t SORBYTS,
honneur d’ineprmer les
\pssieurs cette vils
8a placidfe a Iencoi
rbon et Orléans, dans
1¢ Poyrerne’. Ce lo.
tc" propreté et décen-
‘ra rien pour y rece
ligne d’elles les per-
bien l’honorer de leur
SEREAU.
N
~
SS)
N
tr)
a,
0 npluimUpe personne
ie, partant passable”
“rancais, desirerait se
‘ nis. On produira de.
x tions. S’adresser-au
RQ. 6 mai
Y ik, Yere. brigade.
6 Juin 1828. f
: BRIGADE.
‘al Robeson, agissant
positions de l’acte de
ve te 10 Avril 1826,
le ta {Youlsiane, les
ents de la lre- brigas
Q dela milice de Etat
y i une inspection et
9
%
liew le- Samedi 5 Juil-
sde l’aprés“midi sur
's officiers comman-
ps sont chargés cha-
\exécution de la pré-
le Fauchier Inspecta
¢
-ALEB—Aide-de-camp,,
¢ de mécanique: Ce cheval
‘Ke
‘the sailors robb
[Se a :
__ TEE BER, -
_ TRE BEE.
, we
reward o
an}
¥,/ RY P, Dzravp. Sy
3. Paowyee naihyy
Peter-Street, ween Bourbon § Royal.
turn, in’
TR
*y,
4 TUESDAY, JUNE 94,1898,
is
ADAMS ELECTORS, - i
JAMES VILLERE, of St. Bernard,
; ANDRE LE RLANC,
(°C. BRUSTINELL
"Owe #
; CONGRESS:
JUDGE EDWanp D. WHITBRA
FOR GOVERNOR , 88:
PETER DERBIGNY, ESQ.”
E
STATE L GISLATURR. © *
G. A. WAGGAMAN; | “CTLAS. MAURIAN,
“.P, LANDREAUX. ||. J, H.. SHEPHERD,
vee had
af. DURALDE, Y, POGUNRTIE,
ANTONIO, DUCROSY“:: 7, -
. Saiaaadiaiis "Tica aero, &
Capt. Sink, of the
taken byshe Brazilians, came: passen:
ger in ad bale at Baltimore.'; He
describes? the’ & Brazilian blockadin
squadron as'no -better than’a ‘set of | nj
gates, the crews being principally¢
posed of thieving, drunken scound;
runaways . from England, A
France, &c.. The cargoes of manyy
sels liad been robbed, sails. destroy
ed-of their clothing, an
the most wanton depredations commit:
ted hy the prize masters, sailors,-antd
negro soldiers placed of board..of <ap- |
tured vessels.— Boston Patriot... »
aris
re Provivence;’(n. 1.) May 7. .
The sudden and unex ected failure
ofa Banker and Broker o
which event occurred last KN
never been witnessed by
Providetice. <The tota
for is not not known,
to be from two to thre
sund dollars, ’
wealthiest tapitalists would tiot have
produced half the eect, though ‘the a-
mount might have been larger:—and
what renders the case unusually” dis-
tressing,
the community, who are the least cable
to sustain a loss, are the stiferers.
«The cal sPrincipally on the
dows, poor and in-
alamity falls
heads of indigent wi
dustrious young girls, who had_by their
incessant toilings, saved a little, and had
hoped to 8ee it accumulate: --
“the sufferers were geen,
tle clubs in the streets,
day, cach anxious to kr.
could not be say
ruin, and tach lamenting his hard for-,
tune. Taken ¢
collectively, they have
formed a rete deweas never present.
ed to the eye of our citizens.:
Whilst we most sincerely sympa-
thize with all who have suffered, itis:
far from our intention to say one word,’
the’ citizens of
amount. failed
but is computed
forming lit-
all day.on Mon-
ow, if something
éd from the wreck of
7
ry aN
ADMINISTRATION TICKET. nara LS
‘| Domestic Manufactures—Internal Improvements.
schooner Shillefahy,
-;him to death and
“
oNThe H
takdan b
Tonday nior*’ w
ning, produced an excitement, that has!
¢ hundred ‘thou- | of
The mere failure’of our{h
Those thanks hehas
is the fact, that that portidh of |]
dinary merit in:his cou
hi
extraordinary a ‘tmark
‘consider it
desire, by this‘course
ded to conv
intd a mere
Cause we are
ove Vey “Bas
the left,’
France has'attainédy and
ne iar
discovered in A: Nepro ,
ae hr by
years of age. . The cot
gn ‘the gallows: + eit.
is ip ame
7a ,
ousé of. Rep
Li
nunusua course of, Mr.
eresult of. ¢
tp
cadets” of
no'onp
which
tainly merited the thanks
But the People may*
938 as We are to disco
18 decisions, which sho
Did the oofgtition pa
necessary
public opinion on the
ton
into'that admiration whic
not voluntarily express?
ert the voice
echo of a
We are justified ins
such motive led to
utter]
teow “~~o
th
|
calc dto excite the angry feclings
‘and glory’ which
‘ . 1 as, a 4 i i ha hb, if ‘
The violator and murderer Of Mis
George in ‘Lancaster count
rthas'sentenced
43, hours suspension
atte”
Repttsen|
surprise, ‘On Saturda |
5S... Wright,’ evi-
cért and’ consuls.
Speaker has cer-
‘Now’ received.
be'ats: thuch at a
ver any. extraor-
rst, Or ability-in
party acclamation?
urpos
this movement, be-
y at a loss ‘to per-
bh pete eee at a “ 2 e
of those indications of Mental superio-
tity or. political magnanimity, which, of
emselves, would. be sufi
rant this novel procedire.
UN 0. bee | 6/a4/ag By : e be
for the royalist cause, atid who, as the
‘d of all’ their sacrifices, have ask.
ed nothing of the Bourbons at their re-
order’to préserve theirindepeén:
oO} en
‘che fight]
¢ prai-
erit, at
even the insti-
vern.us, and which.
2 Who would wish
*
s
¥3--has« been.
boy}:,cighteen
io ‘Bh al '
tatives “were.
ys by th
of bis party,
h@uld call for'so}
“of apptobation>
tty in the House
to direct and fix
object? Did they
we the people
h_ they might
Wae it inten,
of the nation
ing that some
bobbi Ch
38 ogi 14th Article uf the By.
b y. order o the Pres :
nae
yy
But, unluckily, we must také
they come, without picking ‘and
ing, ahd: they; 'are“not all of,
quality... To be sure we have:gr
fidence in the: salutary influence
free institutions, and stl greate
genial -Virtue: of 00r’ common
education ; but! these '¢ n.on)
oy force, ‘upon the
ANd,.j4 the Mean ‘time? wa supp
must OPE <p nage thé-vice:.
ngrante’ of the Worse partiof th
las We-cans 5
portation’ as wel
Coe OM, Fu Journabof Com
2! Several buildings. w
fire at Neigbertiy Na. Cy'on_ the «
atid in’ one of them‘ man, who;
ing in bed artink, was burnt tod
_—
ny
eee
&
+
€ destrr
“on
28
nde, defendant iin.¢
‘ont Deiland board w
that he will restore to’ hex
ventoryYgand injunction against) an dis
thereby him, the said hush rnd han
ther Puy. costa, 3 Pig as
ei. > (Signed) . “"J.-PITOT, J
ew-Orlcans,
June 10,° 1898,"
‘v4... dO hereby certify the ubove,
fidune 2h) THOS: & KENNEDY
oa FOR SALE BY THE SUSCIUBE}
hampaign’t¢ ‘
2 HITE. ‘Sparkling €
Burgundy Wines:
we Dol
Bryon$ 1)
ey
Cc. an!
B.C :
hat
ee
'rench & “English ‘Dry Goods, consis
4 Pes in pieces of 60 yards,
; “Crapes Ecossuis “ se, i, a
Vopelinest Onfandies;! Gaze Po] cline
white'Ttandkerthicts; °
Fancy Bandannas’ assorted, 1 ee
Mazulippatanas!.' 3 da...
Assorted Shawls, bate étntera, 1 apis
Cambrick Handkerchiefs, "printed bord
Madapolans, Swiss Muslins,
Mecannical: Lamps
French’, Blankets o
‘Azure blee and
By cis
entitled to Mebendure.: '
may 23. THEODORE NICHOLET &
A LL ISRAELITES who have
i Ascribed, and. reside ‘at’ prese
this City or Subiirba, of those wi
to. become membets of the said Co
gation, can ‘subscribe and 3}
CONSTITUTION & BYE J,
Within Sixty Days from date,‘ as :
stated, which are’ deposited'tn the)
of Mr. Aaron Daniels and if ‘not
plying within the said time, he > or
canhot become members exdept'co
C aa See"
% S, AUNLER, Secret
wy: New-Orleans, Apritd3, 182800645 |
+
oe Wate
cient to ware
ee
a) a}
IP.
meet
Executions in Neb., Va., Ind.
AP 18-Jul-1996 3:21 EDT REF5632
Copyright 1996. The Associated Press. All Rights Reserved.
The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.
By The Associated Press
A man convicted of killing a police sergeant was executed by lethal
injection in Indiana early Thursday, hours after a man who pleaded
guilty to killing his male lover then said police had badgered him into
the plea was executed by the same method in Virginia.
Earlier Wednesday, a former Boy Scaut leader who murdered two boys
in 1983 was executed in Nebraska’s electric chair.
In Indiana, Tommie Smith was’ pronounced dead at 1:23 a.m. CDT.
Convicted of killing an Indianapolis police officer, Smith claimed he
only fired in self-defense,
Sgt. Jack Ohrberg had come to his house in 1980 to serve an arrest
warrant for another man. That man, Gregory Resnover, was executed in
1994 for his role in Ohrberg’s killing.
Smith, 42, who had burglary and robbery convictions in the 1970s,
admitted firing a shot at the officer, but said he mistakenly believed
Chrberg was an intruder and denied police accounts that he shot the
wounded officer as he lay on the porch,
In Virginia, Joseph John Savino III was pronounced dead at 11:22 |
p.m. EDT, said Tammy Brown, a spokeswoman at the Greensville
Correctional Center.
Savino, 37, initially pleaded guilty to bludgeoning Thos McWaters at
their Bedford County home. Later, he argued that police had badgered
him into confessing even though he repeatedly asked for a lawyer, and
that he was high on cocaine at the time of the murder.
Savino moved in with McWaters in 1988 when he was paroled to
Virginia after serving six years in a New York prison for robbery.
Savino had known McWaters, 64, for seven years and worked for his
construction firm.
Savino said in an interview this week that McWaters supported him
and gave him money but also hounded him for sex.
In Nebraska, former airman. John Joubert apologized for his crimes
just before he was executed in the electric chair early Wednesday.
"I do not know if my death will change anything or if it will bring
anyone any peace," said Joubert, 33. He mouthed "I love you" and made a
gentle kissing gesture toward hig girlfriend after being strapped in
the chair.
Joubert repeatedly stabbed and slashed Danny Jo Eberle, 13, and
Christopher Walden, 12, near Offut Air Force Base, where he was }
stationed. He also was convicted of stabbing and strangling a boy in
Maine.
The killings 13 years ago kept the Omaha area in fear for three
months. Joubert was caught after he tried unsuccessfully to abduct a
preschool teacher, who then noted the license plate number of Joubert’s
car. Joubert confessed later that day.
In explaining the murders, he told the Omaha World-Herald last
month: "It was the power and.the domination and seeing the fear. That
WAS MERE Excrrmé THAN ACTUALLY Cavsvwe THe PAR V Y
ae 62
Men Executed In 3 States
AP 18-Jul-1996 9:16 EDT REF5213
Copyright 1996. The Associated Press. All Rights Reserved.
The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.
By The Associated Press
A man convicted of killing a police sergeant in Indiana was executed
by injection early today, hours after a man who claimed police badgered
him into pleading guilty to killing his male lover was executed in
Virginia.
To the end, Tommie Smith maintained he did not fire the shots that
killed Indianapolis police Sgt. Jack Ohrberg.
Ohrberg had gone to Smith’s house in 1980 to serve an arrest warrant
for another man. That man, Gregory Resnover, was executed in 1994 for
his role in Ohrberg’s killing. |
Smith, 42, who had burglary and robbery convictions in the 1970s,
said he shot at the officer, mistakenly believing that Ohrberg was an
intruder. He denied police accounts that he shot the wounded officer as
he lay on the porch. | a
In Virginia, Joseph John Savino III was executed by injection late
Wednesday night, after calmly stating, "I'm sorry for what happened to
Tommy McWaters."
Savino, 37, pleaded guilty to bludgeoning Thos McWaters to death at
their Bedford County home in 1988. Later, he claimed police had
badgered him into confessing even though he repéatedly asked for a
lawyer, and that he was high on cocaine at the time of the slaying.
Savino moved in with McWaters in 1988 when he was paroled to
Virginia after serving six years in a New York prison for robbery.
Savino had known McWaters, 64, for seven years and worked for his
construction company.
Savino said in an interview this week that McWaters supported him
and gave him money but also hounded him for sex.
Earlier Wednesday, the state of Nebraska executed John Joubert, a
former Boy Scout leader who murdered two boys in 1983.
"I do not know if my death will change anything or if it will bring
anyone any peace," said Joubert, 33, He mouthed “I love you" and made a
gentle kissing gesture toward his girlfriend after being strapped in
the chair.
Joubert repeatedly stabbed and slashed Danny Jo Eberle, 13, and
Christopher Walden, 12, near Offut Air Force Base, where he was
stationed. He also was convicted of stabbing and strangling a boy in
Maine. )
# a74-1 = ve $79 a ts sam yoy
Execution
appeal due +
by Savino
By Jim Mason
News Leader staff writer
Condemned murderer. Joseph Sa-
vino III, scheduled to be executed |
.Friday night, said today he decided to
appeal his death sentence in order to
join with others in opposing Virginia’s.
death penalty.
Savino, who had stated last week
that he would rather die than live on
death row while awaiting the out-
‘come of appeals, said he changed his
mind last night mainly because of .
Marie Deans, a death penalty foe and
ee reformer. -
His father and other family mem-'
bers and lawyers also helped per- .
_ suade him to seek a stay of execution,
Savino said in a telephone. interview .
from the State Penitentiary.
“They just wore me down,” he said.
“People who believe in me havei:
_ given me a new purpose and goal” —
ab bi’ sy on e
to do what he can. do abolish: the
state’s death penalty, Savino said.
“I just felt like if all these people -
are willing to go through what they’re
going through, I should go through eo.
little more hell on death row in order
to do my part,” he said. }
“Right now, they (his lawyers) a are
getting a stay of execution, and from _
there they will file my appeal with :
the U.S. Supreme Court,” Savino said.:
He ‘signed an affidavit last night || .
about 9 o’clock asking for a stay of |
" execution. r
Ms, Deans, director of the Virginia —
Coalition on Jails and Prisons, stayed —
at the prison talking with him until |:
CO See Appeal, Page 9 —
=e
Appeal .
O Continued from Page. 1
about 10:30 last night, Savino said.
In an interview Friday with a Rich-
‘mond News Leader reporter, Savino
Said he believes the death penalty is
wrong. 7
_ Gerald T. Zerkin, one of the. death
row inmate’s lawyers, said the Vir-
ginia attorney general’s office agreed
-last night to a stay of execution for
Savino, whose execution is scheduled
Friday night at the State Penitentia-.
ry.
call probably would be arranged to-
day for the stay request to be made to
Bedford County Circuit Judge Wil-
liam W. Sweeney, who imposed the
death sentence, aor
Until last night, Savino had refused
to appeal Sweeney's death sentence
after the Virginia Supreme Court af-
Zerkin said a telephone conference
Mods y , Time 25, 940
firmed it in April.
Now, with his change of mind, his
case will be appealed to the US. Su-
_ preme Court, Zerkin said.
In addition to Ms. Deans, Savino’s
father, stepmother, uncle, aunt and
attorneys pleaded with him during
Visits to the prison yesterday, .
Spokesmen for the Virginia Associ-
| ation Against the: Death Penalty also
Said today they believe Savino’s stay
will be granted. .
_ During a morning news conference
at the state Capitol, the group. also
said Savino is convinced that “he can
- do more to Oppose the death penalty
by staying alive.”
‘They said Savino originally wanted
his execution televised as a protest
against capital punishment,
Duane Hudson of the association
also expressed hope that Gov, L.
Douglas Wilder would be receptive to
granting clemency in death penalty
cases,
‘J don’t want to count him out at
all,” Hudson said.
Julie McConnell, another member
of the association, said she believes
that “deep down” Wilder is Opposed to
the. death penalty despite his state-
ments during last year’s gubernato-
Tial campaign that he now favors
capital punishment.
‘At his trial in Bedford Circuit Court
in April 1989, Savino pleaded guilty to
the stabbing and hammering death of
his homosexual lover and benefactor,
Thomas McWaters, -64, the night of
Nov. 29, 1988, at the victim’s Bedford
County farmhouse, which they
Shared. 2 a
Savino has said he killed McWaters
. While in a cocaine-induced craze and
added he knew his action was wrong.
“Thad noright to take that man’s life.
That’s one of the hardest things I’ve
had to live with,” he said Friday.
Savino was transferred Tuesday
from the Mecklenburg prison to the |
Penitentiary’s basement death cham-
ber, -_
\
4
ctor Abert CADP |
Vach ont £xe
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: 7
ya
Joseph Savino
July 17 (VA)
Although intoxicated on cocaine at
the time of the arrest, Joe was
coerced into confessing to the
murder of his over. The victim was
an older man who tended toward
relationships with teenagers and
very young men. (The police found
pedophile videotapes in his closet.)
Joe was physically abused as a child,
and had never been convicted of
causing harm to another. Joe's
attorney had him plead guilty to
capital murder, thereby denying him
a right to a trial by jury. Joe was
sentenced to death on the basis that
he killed while in the commission of
a robbery. However, the robbery
in question (forged checks) did not
happen until after the murder had
occurred and Joe maintains that it
was not his motive. Joe's lover was
extremely jealous and controlling;
the crime was the result of
domestic abuse. Moreover, while
mental health experts have
determined that Joe was suffering
from "cocaine psychosis" at the time
of the incident, this information was
not made available to the judge.
Joe's case remains surrounded by
questions of police coercion and
incompetent legal representation.
Short of intervention by the
Supreme Court, only the Governor
of Virginia can stop his execution.
PLEASE WRITE:
Governor George Allen
State Capitol Oo
[776
/
Ex sef fer 7-17-%
SAVINO v. MURRAY
Cite as 82 F.3d 593 (4th Cir. 1996)
+ woop
ie)
Joseph John SAVINO, Petitioner-
Appellant,
V.
Edward W. MURRAY, Director, Virginia
Department of Corrections, —
Respondent-Appellee.
No. 95-4006.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 7, 1995.
Decided April 30, 1996.
After defendant’s convictions for rob-
bery and murder were confirmed, 239. Va.
534, 391 S.E.2d 276, and following other ha-
beas proceeding, defendant filed habeas cor-
pus petition in federal court... The :United
States District: Court for. the Western Dis-
trict of Virginia, James C. Turk, J ., dismissed
habeas petition. Defendant appealed, chal-
lenging the decision with respect to effective-
ness of his legal representation, his guilty
plea and evidence on his future dangerous-
ness. The Court of ‘Appeals, ‘Murnaghan,
Circuit Judge, held that: (1) counsel was. not
ineffective for failing to inform defendant of
other possible defenses before defendant
pled guilty; (2) guilty plea was knowing and
voluntary; and (3) admission of testimony by
Commonwealth's mental health expert re-
garding defendant’s future dangerousness
during penalty phase did not violate defen-
dant’s rights.
Affirmed.
1. Habeas Corpus 768, 842
Court of Appeals reviews federal district
court's legal determinations with respect. to
(c) the nature of the proceedings for which the
evidence is required, giving all necessary infor-
mation in regard thereto;
(d) the evidence to be obtained or other judicial
act to be performed.
593
Con FESS/Or\..,
AWINE'S
Ce le ee ae Laos
SIR ROUTE
counsel regarding any psychiatric. evaluation
by the prosecution. U.S.C.A. Const.Amends.
5, 6.
22. Criminal Law ¢683(3) -
When defendant asserts mental status
defense and introduces psychiatric testimony
in support of: that defense, he may. face: re-
buttal evidence from. prosecution taken from
his own examination or he may be required
to submit to evaluation conducted by prose-
cution’s own expert.
23. Criminal Law ¢683(3)
When defendant asserts mental status
defense and introduces psychiatrie testimony
in support of that defense, he has no Fifth
Amendment protection, against ‘introduction
of mental health evidence in ‘rebuttal to de- .
fense’s psychiatric evidence; in essence, . de-
fendant waives his right to remain silent—
but not his right to notice—by indicating 't that --
he. intends to introduce psychiatric testimo-
ny. ‘US.C.A. Const.Amend. 5. teens
24. Criminal Law @=412(4)- ea
Virginia statute vcrerning i psychi-
atric testimony in capital case treats: defen-
dant’s. waiver of his right to remain, silent
during examination by the. Coramonwealth’s
mental health examiner as condition prece-
dent to prosecution’s use of psychiatric evi-
dence. Va.Code 1950, § 19. 2-264. 8: 1.
25. Criminal Law 393(1), 412.2(3)
Admission of testimony regarding defen-
dant’s future dangerousness, which was pre-
sented by. prosecution’s mental health expert
during penalty phase of capital: trial, did not
violate defendant’s Fifth or Sixth Amend-
ment rights, even though defendant alleged
he did not. receive specific notice that his
evaluation could be used to establish future
dangerousness, where defendant waived his
Fifth Amendment rights pursuant to Virginia
statute by requesting psychiatric evaluation,
and both defense. counsel and. the, prosecu-
tion’s expert had warned defendant before-
hand that any information he gave to the
psychiatrist could be uséd in the capital sen-
tencing phase. U.S.C.A. Const.Amends. 5, 6;
Va.Code 1950, § 19.2-264.3:1.
joined. eyes
' oe. ste SoBe eas et antes ef Happ eke uipeetete,
ead ae $ ‘ PS oars | "hg tsen re Fe: ot 7 OPEL S Teet B3p~ers
596 82 FEDERAL: REPORTER, 3d SERIES
Appeal from the: United States District
Court. for the Western District:of Virginia, at
Roanoke.. James C..Turk,: District Judge.
(CA-93-869-R).
ARGUED: Gerald Thomas Zerkin, Gerald
T. Zerkin & Associates, Richmond, Virginia,
for Appellant. Eugene Paul Murphy, Assis-
tant Attorney General, Office of the Attorney
General, Richmond, Virginia, for Appellee.
ON BRIEF: Melanie A. Hopper, Gerald .T.
Zerkin & Associates, Richmond, Virginia;
Donald R. Lee, Virginia Capital Representa-
tion ‘Resource Center, :Richmond,. Virginia,
for Appellant. - James S. Gilmore, III, Attor-
ney General of Virginia, Office of’ the Attor-
ney General, came tear ‘Virginia, for r Appel-
‘lee:
Pe iat i
* Before MURNAGHAN; Lm and’
‘WILLIAMS, Circuit raed
’ Affirmed by published’ opinion. ag
MURNAGHAN wrote ‘the ‘opinion, in ‘whieh
Judge LUTTIG’ and! Fudge" WILLIAMS”
OPINION
_MURNAGHAN, Cireuit Judge:
Virginia death row inmate Joseph John
Savino, Jr., has: appealed a federal district
court’s decision dismissing his petition for a
writ of habeas. corpus and denying his motion
to alter or amend the judgment. Savino
contends that the district court improperly
found no merit in. his constitutional claims
concerning ineffective. assistance ‘of. counsel,
- improper acceptance of his guilty plea, and
impermissible use of expert. testimony to. be
without merit. Because we agree with the
district court’s analysis and conclusions, we
affirm the judgment below.
I.
On the night of November 29, 1988, Thom-
as McWaters was murdered at his farmhouse
in Bedford County, Virginia. Two days la-
ter, Joseph Savino confessed ~ to killing
McWaters by repeatedly striking him on the
-head with a hammer and ee: him in the
neck and back.
SE BSI RRS PRR EE
that: ai Savino ee us
At the time of the m
McWaters lived togethe
farm. ‘They: had met: in
worked for McWaters’s
while on parole from a
sentence. In -1982, Savin
two. counts ‘of ‘robbery .a
During: the: next: six.-yea
quently visited. Savino, in p
ed with him’. by’ telepho
money. In réturn, Savinc
letters , to, MeWaters. sug
begin a a’ homosexual’ ‘relatic
, When; Savino: was. paro
hdc Nad
out permission, he wrote
ters’s. checking account: in
drugs, “When he overdrey
no faced twenty-six for
charges: in Bedford. Count
‘i authorities could find, him
Roanoke, Vir \é arrest
ber 22,. 1988, ‘for possessir
paraphernalia. Released
vember 29, 1988, Savino .
ters’ s farm.
That same- evening, S:
friend.-by, telephone. abou
as he had done. on previc
ter. that: night,, Savino .
joined ‘MeWaters in,. bed.
fused to have. sex, MeWat
was “washing his, hands
went downstairs, thought
to “eliminate. the problen
hammer and returned. i
room where McWaters
struck McWaters on the
with considerable force.
ters still tobe alive, S:
knives from downstairs <
peatedly in the neck and
knives in the victim’s bod
1. These facts were derivec
own testimony. at the sta’
June 13-15, 1989, and th:
_on July 21-22, 1992...
2. The indictment charged
fully, deliberately, feloniot
tation, kill and murder Th«
At the time of the murder,. Savino and
McWaters lived together on McWaters’s
farm. They had met in 1980 when Savino
worked for McWaters’s construction firm
while on parole from a New York prison
sentence. In 1982, Savino was convicted of
two counts of robbery and reincarcerated.
During: the next six.-years, McWaters fre-
quently visited Savino in prison; communicat-
ed with him by telephone: and gave him
money. In return, Savino wrote affectionate
letters to McWaters. suggesting that they
begin a homosexual relationship.
When: Savino: was paroled from. prison. in
February 1988,, he,. moved: into - ‘MeWaters’s
home. The two: men. became lovers." - Later
that: year, Savino began using cocaine. ‘ With-
out permission, he wrote checks on McWa-
ters’s checking account: in order to purchase -
drugs. When he overdrew the account, Sayi-
no faced twenty-six forging and uttering
charges in Bedford County., Before Bedford
authorities could find him, h ever
Roanoke, Virginia, arrested him on nNowecn-
ber 22, 1988, for possessing cocaine ‘and drug
paraphernalia. Released .on a bail bond No-
vember 29, 1988, Savino, returned to McWa-
ters’s farm.
That same evening, ‘Savino: spoke pens a
friend by, telephone. about. killing .McWaters,
as he had done on previous occasions.! La-
ter that night, Savino _used , cocaine, then
joined McWaters in..bed. . When: Savino _re-
fused to have sex, MeWaters told him. that he
was “washing his hands of [him].”. Savino
went downstairs, thought a while and decided
to “eliminate the problem.” He picked up a
hammer and returned. to the upstairs bed-
room where McWaters was sleeping. He
struck McWaters on the head ‘several times
with considerable force. Believing McWa-
ters still to be alive, Savino retrieved two
knives from downstairs and stabbed him re-
peatedly in the neck and back.’ Leaving the
knives in the victim’s body, Savino took about
1. These facts were derived mostly from Savino’s
own testimony at the state plea proceeding on
June 13-15, 1989, and the state habeas hearing
on July 21-22, 1992. .
2. The indictment charged that Savino “did will-
fully, deliberately, feloniously and with premedi-
tation, kill and murder Thos ‘Thomas’ McWaters,
SAVINO'v.: MURRAY: | 597
Cite as 82 F.3d 593 (4th Cir. 1996)
$100 in cash and drove to Roanoke.’ to. pur-
chase cocaine: . Later that night, he revisited
MeWaters’s house, loaded:a car with his own
property and. some items belonging to
McWaters, and then returned to Roanoke.
The.:next . day,'-November:' 30, 1988; police
arrested Savino:in Roanoke’ for failure .to
_— in: court on ‘the earlier crag charges.
Bedford‘ ‘authorities picked up. Savino i in
‘Roanoke and ‘took him back to their. county
jail. to process him on ‘the ‘forging and utter-
ing charges. They reported that, ‘at first,
Savino appeared. lethargic and ‘under, the i in-
fluence ‘of drugs, ‘but: that’ by: the time they
‘arrived in’ Bedford’ County, he: seemed ‘sub-
; stantially improved.” Bedford’ ‘police® ques-
‘tioned’Savino ‘about’ the forgeries’ ‘Of MeWa-
‘ters’s checks until he requested ' ‘counsel: As
“officers ' ‘processed ‘the forgery * ‘warrants. a
sergeant * ‘asked’ “Suvine why" ‘he -had~‘killed
MeWatets:" ‘ Savino’ endéd: the intérview, but
‘after’ sleeping’ ‘for Several: hours i in‘ a jail cell,
he‘asked to speak’ with “a ‘particular investiga-
tor, :Steve: Rush.’ In two"separate’ state-
ments, Savino , _ then, confessed . to. killing
McWaters.
SAC Bedford County grand:j jury tiilictad Sa-
vino: on capital murder and robbery charges
on.December:2, 1988.2 The court appointed
counsel: to represent Savino... On, -April :24,
1989, the day his jury trial-was set: to:begin,
Savino' pled guilty to the charges.’ Pursuant
to Virginia’s bifurcated-trial procedure, the
trial judge heard three days of testimony: at
the: penalty phase:* On-June 15, 1989, the
judge found Savino to be a future danger and
impdsed a sentence ‘of. death: After review-
ing the post-sentence report, he:entered final
judgment on July: 20, 1989; sentencing Savino
to death for the capital murder and to life
imprisonment for the robbery.
’ On direct appeal, the same court-appointed
counsel represented Savino. The Virginia
Supreme Court affirmed Savino’s convictions,
Jr. in the commission of robbery while armed
with a-deadly weapon,” in violation of'Va.Code
Ann. § 18.2-31(d). The indictment also charged
the } ane ing robbery.
3. Under Va.Code Ann. § 19. 2-264.4, the guilt
and penalty phases of a capital murder case are
conducted in separate proceedings.
A ae eee
E
E
ey
ee
es
aS
ae
be
7 hed LE or TN
598 82 FEDERAL REPORTER, 3d SERIES
then independently reviewed Savino’s sen-
tence and found it neither excessive nor dis-
proportionate. The United States Supreme
Court denied certiorari on October 1, 1990.
Savino then filed a habeas corpus petition in
the Circuit Court of Bedford County, raising
numerous challenges to his death sentence.
After two evidentiary hearings, the circuit
court entered an order dismissing the peti-
tion on June 5, 1992. The Virginia Supreme
Court denied Savino’s appeal on October 30,
1992, and the United States Supreme Court
again denied certiorari on March 22, 1993.
Savino filed a federal habeas petition pur-
suant to 28 U.S.C. § 2254 in‘ the United
States District, Court for the Western. Dis-
trict of Virginia on November 17, 1993. He
raised fourteen claims. The district court
dismissed the petition on March 1,.1995, and
denied a motion to amend or alter the judg-
ment on June 7, 1995. Savino filed a timely
appeal, challenging the district court’s deci-
sion only with respect to his legal representa-
tion, guilty plea and future dangerousness.
Sf.
[1]. We review the district court’s legal
determinations de novo, keeping in mind,
however, that any state court factual findings
underlying those determinations are -pre-
sumed to be correct and binding, as long as
they were made after a hearing on the mer-
its. 28 U.S.C. § 2254(d); see also Sumner v.
Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770—
71, 66 L.Ed.2d 722 (1981). The habeas peti-
tioner bears the burden of establishing by
convincing evidence that a state court’s factu-
al determinations were erroneous. Summer,
449 U.S. at 550, 101 S.Ct. at 770-71.
A. Ineffective Assistance of Counsel
[2] The record shows that Savino insisted
upon pleading guilty against the defense
4. Such memoranda are routinely required by the
judges in that circuit.
5. In the memorandum, Savino stated that he had
told his lawyers all of the facts and circum-
stances surrounding the case and that his law-
yers had discussed with him the nature of the
charges against him and the possible defenses he
might have. Savino further represented that his
attorneys had explained, and that he understood,
counsel’s advice. Before he entered his plea,
Savino’s appointed attorneys worked to pre-
pare his case, consulting capital defense ex-
perts and investigating possible defenses.
They discussed alternative strategies with
Savino and advised him that by pleading
guilty he would waive his rights to appeal his
conviction. At the plea hearing, the state
court judge reviewed a signed memorandum
of understanding between Savino and his
counsel.4 Savino told the judge that his at-
torneys had reviewed the document with him
and explained in detail the items it’ con-
tained.» In open court, Savino told the judge
that he understood, everything in the memo-
randum, that he was satisfied with the-ser-
vice of his attorneys, and that he was plead-
ing guilty voluntarily.
[3] Savino now argues, and argued below,
that his plea was not knowing and voluntary
because his lawyers misadvised him. Savino
contends that three viable defenses existed
which counsel failed to disclose or pursue.
He contends that he would not have pled
guilty if he had known about these defenses,
but rather, would have chosen to pursue
them at trial because each was supported by
substantial evidence. Savino maintains that
his plea is particularly questionable because
he received no benefit from it—no promise of
a shorter sentence or a lesser charge in
exchange. Whether counsel’s performance
was constitutionally adequate is a mixed
question of law and fact which we review de
novo. Ostrander v. Green, 46 F.3d 347, 354
(4th Cir.1995); Poyner v. Murray, 964 F.2d
1404, 1416 (4th Cir.), cert. denied, 506 U.S.
958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992).
[4-8] The standard set forth in Strick-
land v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), governs Sixth
Amendment ineffective assistance of counsel
claims. In order to succeed, a criminal de-
all of the elements of the offenses with which he
had been charged and that would have had to be
proved before he could be found guilty. The
memorandum set forth all of the rights that Savi-
no would have if he entered a plea ‘of not guilty
and conveyed his understanding that by pleading
guilty he would waive those rights and “all objec-
tions to the admissibility of the statement to
Investigator Rush and all other evidence.”
fendant must show, first, tl
deficient legal representatio
that the unprofessional error
case. Id. at 688, 694, 1045
2068. Competency is measur
an . objectively reasonable .
have done under the circum:
at, the time of the representat
88,104, S.Ct. at 2064-65. Br
conduct carries a strong pres
sonableness, reversal is warr:
defendant can affirmatively }
Td.,at. 689, 693, 104-S.Ct. at
In the context of a-guilty ple
inquiry is “whether, counsel's
ineffective: performance. affec
of the plea-process.” Hill.t
USS. 52, 59, 106 S.Ct. 366, 370
203 (1985). The defendant.
“there ig a reasonable prob:
for counsel’s error, he would
ed guilty and would have insi
trial” Id. Because a guil
only. if it represents 2 knowin
choice among alternatives, f
56, 106. S.Ct at 369, a ch
intention to plead guilty d
counsel of their duty to inve
defenses and to advise the d
he can make an informed dec
ter, 643 F.2d 167, 174 (4th Ci
ing: obligations. of defense co
er, if there.exists no reason
that a:possible defense would
at trial, the alleged error of fi
or pursue it cannot be prejuc
US. at 59, 106:S.Ct. at 370-7
. Reviewing each of Savino
ineffectiveness in turn, we i
tionally deficient performan
both the circumstances and
time, Savino’s attorneys mac
terminations .and provided
6. " Savino actually made two }
ments on December 1, 1988
and: another at 4:25 p.m.
7. The Edwards rule was desi:
integrity of the accused's cho
with police only through co
Illinois, 487 U.S. 285,.291, lt
101 L.Ed.2d 261 (1988). S
P. Kevin Morley/The Richmond News Leader
“l’d rather get it over with,” says Joseph
Savino Jr.
By Jim Mason
- News Leader staff writer
Joseph Savino Jr., scheduled to die in Virgin-
ja’s electric chair in six days, says he prefers
being “murdered” to being “tortured and then
murdered” by the state.
“They may call it an execution, but to me, it’s
murder,” he said of the death sentence he re-
ceived for killing and robbing his homosexual
lover and benefactor in the victim’s Bedford
County estate home in 1988.
But an appeal would mean continuing a “tor-
tured” life on Virginia’s death row for several
more years only to end up being “murdered”
anyhow, Savino, 31, said during an interview
yesterday at the prison. )
“T’d rather get it over with,” he added.
Savino, who has neatly trimmed black hair and
a mustache, wore a white jumpsuit and talked on
a telephone from behind a plexiglass window ina
State Penitentiary basement room not far from
the electric chair.
A half-hour earlier, two lawyers had met with
_ him and tried to talk him into appealing his case,
but Savino refused.
An appeal would be “just grasping at straws
and prolonging the inevitable,” he said.
_. “This whole situation is just too horrible for me
to live with,” he said of his feelings of “isolation”
and the “indifference” of the guards on death row
at Mecklenburg Correctional Center. “They look
at us as just state property to be disposed of.”
In contrast, Savino said, he sympathizes with
his guards at the Penitentiary. Their job is to see
that he is killed “in society’s name.”
“Even if you hate me, what you are putting
these people (guards) through is not right,” he
said. “I’ve been trying to keep their spirits up.
One of the guys is only 21 years old.
, “It’s a horrible job. I’ve killed someone. I know
it’s horrible.”
Savino expressed remorse for having killed
Thomas McWaters, 64.
“What I did was wrong, too — extremely
wrong,” he said. “I had no right to take that man’s
life. That’s one of the hardest things I’ve had to
live with.”
During his Bedford Circuit Court trial in April
1989, Savino said he killed McWaters the night of
Nov. 29, 1988, while in a cocaine-induced craze
because the older man repeatedly demanded sex. |
McWaters was beaten with a hammer and
stabbed with two butcher knives in an upstairs
bedroom of his estate home, according to police. .
Savino said he had come to Virginia to live
with MeWaters in February 1988. That was after
he won parole and had served prison time in New
York state for robbery. -
Savino said he now regrets pleading guilty to
OC See Savino, Page 4
Richnovd NEWS KADER
Sat.
Time 23, 19490
THE WASHINGTON Post
B4 Tuvrspay, Jury 18,1996 = s
Va. Executes Man Who Killed Lover
Associated Press
JARRATT, Va., July 17—A New
York man convicted of killing his male
lover in Bedford County, Va., was exe-
cuted by injection here tonight.
Joseph John Savino III, 37, a
Mount Vernon, N.Y., native was
pronounced dead at 11:22 p.m., cor-
rections officials said. His execution
was delayed for two hours while he
made a last-minute appeal to the
U.S. Supreme Court, but the court
denied the petition. Gov. George Al-
len (R) released a statement saying
he had decided clemency was unwar-
ranted.
Savino had pleaded guilty to capi-
tal murder in the November 1988
killing of Thos McWaters, another
New Yorker, who moved to Virginia
after buying a farm in 1985. ©
Savino moved in with McWaters ear-
lier in 1988 when he was paroled to
Virginia after serving six years for rob-
bery in a New York prison. Savino had
known McWaters for seven years and
worked for his construction firm. The
two had “a domestic relationship,” ac-
cording to court documents.
Their relationship went sour, Sav-
ino said. |
Although the 64-year-old McWaters
supported him and gave him money,
Savino said in an interview this week,
he also hounded him for sex and rou-
tinely threatened to try to get his pa-
role revoked if he didn’t comply.
In an effort to avoid McWaters, Savi-
no said, he began spending time in Roa-
noke, shooting cocaine with friends.
“McWaters was painted by the
prosecutor at Joe’s sentencing as
simply wanting Joe to be happy,”
-Savino’s attorney, Gerald T. Zerkin,
said Tuesday. “That’s clearly non-
sense. This case was about sexual
obsession and the power and the
control that McWaters attempted to
exert over Joe.”
On Nov. 29, 1988, McWaters was
found bludgeoned to death at the
home the men shared. The next day,
police arrested Savino in Roanoke.
In April 1989, Savino pleaded
guilty to capital murder and was sen-
tenced to death.
Savino’s execution was the third
carried out in Virginia this year.
° , FILE PHOTO
JOSEPH JOHN SAVINO III
... sentenced to lethal injection
@ C y LM 0A NWVe igh = eae eo
Savino ma
ot 185
OC Continued from Page 1
capital murder and robbery charges in the Bed-
ford case.
- For one thing, he said, he didn’t intend to rob
McWaters after killing him. “If my intention had
been robbery, why would I leave him the way I
did?” Savino said.
“Hindsight is 20-20. At the time my lawyer and
I discussed it, it seemed the reasonable thing to
do. We just felt we were better off putting all our
energies into the sentencing phase.
“We didn’t think I would get the death : sen-
tence. We thought it would be life in prison.”
Savino said he was surprised when Bedford
Circuit Judge William W. Sweeney sentenced him
to die. His case was appealed automatically to
the Virginia Supreme Court.
In April, the state — court affirmed Savino’s
sentence.
After killing McWaters, Savino took about $100
from McWaters’ wallet and went to Roanoke,
where he bought cocaine, the Supreme Court said’
in regard to the robbery charge.
Savino was arrested in Roanoke the day after
McWaters’ murder.
Now, he said, his fate illustrates the unfairness
of the death penalty, how some murderers are
put to death in the name of society but others are
not.
His father, J oseph Savino Sr., told him recently
of a similar case in New York state in which two
men involved with drugs were convicted of mur-
dering another man.
One of the defendants received a sentence of 25
years to life and the other a sentence of five to 15
years, Savino said. New York does not have the
death penalty.
Savino’s father said yesterday he plans to urge
his son again this weekend to appeal his death
sentence. Family members plan a no-contact
visit with Savino tomorrow.
Savino said he grew up in a Catholic family of
Italian descent in Mount Vernon, N.Y.
“For a while, I got away from God, but not
because I didn’t believe He existed, ” he said.
“I was pretty emotionally destroyed” after
murdering McWaters, he said. “I didn’t know
where to turn, so I turned to God.”
Savino said he promised God that he would try
“to make some good come out” of the wrong of
his impending death.
One good thing he could do, he decided, was to
Speak out against the death penalty.
If he was wrong to kill McWaters, it is just as
wrong for Virginia to kill him, Savino said.
“Whenever you kill someone, it’s murder. .
As far as I’m concerned, being a Christian, it’s
murder. .
“T find it amazing. I’m here in the Bible Belt,
and people want vengeance. But God said, ‘Ven-
geance is not yours. Vengeance is mine.’
- “The death penalty is wrong. And the other
_ thing I’m trying to do is to urge people not to use
drugs. Drug abuse only leads to a life of misery...
“Everyone who gets involved in drugs ends up
miserable — or where I’m at.”
As Savino stood to return to his death chamber
cell, he said, “God bless you.”
(EIC AMened VA
St rene nee oe
Appeal
* Continued trom Page 1
about 10-30 last night, Savino said.
In an interview Friday with a Ricb-
mond News Leader reporter. Savino
' said he believes the death penalty is
wrong.
Gerald T. Zerkin, one of the death
row inmate’s lawyers, said the Vir-
ginia attorney general's office agreed
last night to a stay of execution for
Savino, whose execution is scheduled
Friday night at the State Penitentia-
tte said a telephone conference
call probably would be arranged tc-
day for the stay request to be made to
Bedford County Circuit Judge Wil-
liam W. Sweeney, who imposed the
death sentence.
Until last night, Savino had refused
to appeal Sweeney's death sentence
after the Virginia Supreme Court af-
‘Oseph Savino III said he believes he should do what he can to a
firmed it in April.
Now, with his change of mind, his
case will be appealed to the US. Su-
preme Court, Zerkin said.
In addition to Ms. Deans, Savino’s
father, stepmother. uncle, aunt and
attorneys pleaded with him
visits to the prison yesterday.
Spokesmen for the Virginia Associ-
ation Against the Death Penalty also
said today they believe Savino’s stay
will be granted.
During a morning news conference
at the state Capitol, the group also
Said Savino is convinced that “he can
do more to oppose the death penalty
by staying alive.”
They said Savino originally wanted
his execution televised as a protest
against capital punishment.
Duane Hudson of the association
also expressed hope that Gov. L.
Douglas Wilder would be receptive to
granting clemency in death penalty
Cases.
“I don’t want to count him out at
bolish the death penaity.
capital punishment.
all,” Hudson said. .
Julie McConnell, another member
of the association, said she believes -
that “deep down” Wilder is opposed to |
the death penalty despite his state-
ments during last year’s gubernato-
rial campaign that he now favors
At his trial in Bedford Circuit Court
in April 1989, Savino pleaded guilty to
the stabbing and hammering death of
his homosexual lover and benefactor,
Thomas McWaters, 64, the night of
Nov. 29, 1988, at the victim’s Bedford
County farmhouse, which they
shared.
Savino has said he killed McWaters
while in a cocaine-induced craze and
added he knew his action was wrong.
“T had no right to take that man’s life.
That's one of the hardest things I've
had to live with,” he said Friday.
Savino was transferred Tuesday
from the Mecklenburg prison to the
Penitentiary’s basement death cham-
ber.
~ Execution
appeal due :
by Savino
By Jim Mason
News Leader staff writer
Condemned murderer Joseph Sa-
vino III, scheduled to be executed
Friday night, said today he decided to
appeal his death sentence in order to
join with others in Opposing Virginia’s
death penalty.
Savino, who had stated last week
that he would rather die than live ca
death row while awaiting the out-.
come of appeals, said he changed his
mind last night Mainly because of
Marie Deans, a death penalty foe and
prison reformer.
_ _ Gis father and other family mem-
\ bers and lawyers also helped per-
4 suade him to seek a stay of execution,
\ Savino said in a telephone interview
\ ' from the State Penitentiary.
a8, “They just wore me down,” he said.
“People who believe in me have
given me a new purpose and goal” —
to do what be can do abolish the
state’s death penalty, Savino said.
“T just felt like if all these people
are willing to go through what they're
S0ing through, I should go through a
little more hell on death row in order
Ny to do my part,” he said.
“Right now, they (his lawyers) are
* getting a stay of execution, and from
they will file my appeal with -
. the US. Supreme Court,” Savino said.
i He signed an affidavit last night
about 9 o'clock asking for a stay of
execution. .
Ms. Deans, director of the Virginia
Coalition on Jails and Prisons, sta
‘ . at the prison talking with him until
CO See Appeal, Page 9
a
Stoel,
(No appeal.)
SEABORNE, Harry (or Perry), black, electrocuted Virginia (Greensville Co.) =16-1909.
"(Special to the Times-Dispatch,) Emporia, Feb. 2. = Perry Seaborn, a negro, tried in the
Circuit Court here today, upon the charge of criminal assault, was given the death chair
penalty by the jury. Judge West will pronounce sentence on Seaborn tomorrow morninge
Several weeks ago Seaborn committed an assault upon a negro girl in the upper portion of
the county, and after committing the deed forced his victim at the point of a gun to
disclose the hiding place of all the money she possessed, amounting to $0, Seaborn
was apprehended in Suffolk about two weeks ago and brought to Emporia by Deputy Sheriff
Saunders and lodged in the local jail. He has served a five-year sentence in the State
penitentiary for burglary, sent up from Southampton County, when a small boy, Seaborn
is now only 21, but from his early youth has been regarded as a desperate character,"
TIMES-DISPATCH, Richmond, Virginia, February 3, 1909 (l<3.)
"(Special to The Times-Dispatch.) - Emporia, Vas, Jan. 28, = Emporia had another attempted
jail delivery at an early hour this morning when Perry Seaborn, a desperate negro charac-
ter, attempted to burn his way to liberty. Seaborn has been in prison since Tuesday of
this week, being held for the February term of the Circuit Court upon the charges of
burglary and criminal assault. But for the prompt response of the local fire department,
this morning the Greenesville county jail might now be a pile of ashes and debris, The
damage done by the fire has been repaired, and Seaborn, the negro responsible for the
conflagration has been put in seclusion securely shackled," TIMES-DISPATCH, Richmond,
Virginia, January 29, 1909 (345.
NO APPEAL.
SEAB ORNE, Harry (or Perry),
black, 22, electrocuted VA (Emporia - Greensville
"I was requested to examine the papers in the pocket book of the deceased, and.found .
145 dollars, in banknotes, and ), dollars and 6cents in silver, It appears that his
name was William C. Simmertons; and that a commission of bankruptcy had issued against
him in Philadelphia in December last; that he was in a declinging state of health,
and on his way to the Sweet Springs. It is highly probable that the assassin missed
his object; and that he was routed before he could plunder his victim, He took
nothing but a trunk, which.was lashed behind the chair in which he trawelled,
probably containing nothing but clothes, /s/ S. KERCHEVAL, Frederick County, Sepe he
"N.Be An inquest was taken on the body, before Capt. Spanger's yesterday, and the jury
pronounced it a most atrocious, willful and malicious murder, perpetrated by the
hand of a mulatto man, by the information of the deceased, but by what. particular
person was not known to the jury. ; ;
"The Money, and property belonging to W. C. Simmerton, who has thus (as appears from
the above statement) untimely fallen by the hand of an assassing for the sake of a
little plunder, who, we hope and pray may meet with his due reward, is in safe:
hands, and may be obtained it is supposed, by Mr, Simmerton's relatives or friends -
which is, exclusive of the above mentioned sum of money, a chair, marked with the
letter S,.and a bay horse. It is supposed that this unfortunate man was a resident of
Philadelphia." CHARLESTON COURIER, Charleston, South Carolina, 9-22-1803 (3:2.)
SCOTT, James, hanged
COURIER, Charleston, 5C
Dee, 26, 4003-01537
feeling myself
reconciled
eternity and
Simmerton, I wi
manner in which
Winchester, VA,
11 relate the
11-11-1803
ig _» CONFESSION”
Of Ames Scort, who was executed at Winchester,
irginia, on Friday the ruth Noverab. “f, £803, fur
. the murder of - Simmerton of Ph.i.delphia, on
the public: highway, on sas, ee tne 2d Sep-
La tember, aSpg.
Just Boing to be Inunched into on awful
Perea . .
pear TTR See for
fate Watch ts, im adsw taimuees to be ial cte i,
aud kuoWwing at this sf peviod, Uiat su crraeS
nious assertion would avail nothing to my in-
terest i this critical momegt, and w guld one-
rate greatly against the salvation of my soul,
in that mansion of glory, which, fam persuad-
éd I shall direclly meet, I fecl ita duty in-
cuinbent upon myself to confess to the world,
that [never was guilty of any canital cgme
except the one for which Tam now doonied
ty expiate. Tam well coivinced, that people
cotertain various opinions: of my i wines been
Buy TM ai ean steyeay Got are ey LCL al
fortunate Simmerton, which r solemnly de.
clare not to be correctin any wise, and which
‘utterly deny. In order that people any
ave amlucenrate view of the mitre af nies
| perpetrated that dorrid ast. To travelling
towards Midvicown, Tmet Mr. Siuierton,
whoin T nad not the least design of injuring,
except rovbing hind of bis money (which I
supposed to be considerabic, from ihe style
tn which he travelled.) My heart was fired
vity anticipations of horror at such a diuboli-
cal vielation of the laws of fumia: my and those
of my country, but.those aniicipations were
soon dispelled by others of a mare briitiunt
natures Thad already made my calgulocious
ofthe best and imoot ativantayeous made ot
disposing of ny plunder. I followed und over-
tuok hain at the place where be was found nf
ter being murderesleel gave him a blow ot
his head, without the sinailest wish of its
proving fatal.” When T gave the blow, he ul-
tere] these words—“ 1 will give {and en- '
Geavoured, at the sume time, by siz V4 Lo 8145+
nify that if T would desist he would ive wll 5
at that inant his chair was likely to upsery
which Fendeavoured to prevent, by thrusting
one of iny feet ugainst one of the wheels, but
to 10 purpose——it oversct, sida wae tlic means
of his death.
1 feel myself forgiven, and um resi: ened to
my fate. Ina few momentsle: spoclio west |
an awfuland a just God? whose mercy Lime
plore, for Jesus. Christ's sake..
JATUIS SCOTT.
= R e e
2 a | ~ =]
SHELL, John and pea Joe
"Richmond, Vaey Feb. 21, 1936 = John Shell and Joe Jatkso
Negroes, w ere executed at the State Penitentiary here
fmm County farm couple nearly a year ALO. The Raghoos
had been granted four reprieves since their conviction
ata “-_ a
bodies were found ina well April l, 1935, near their
farm home," § :
%
ee F | S Peeaco a
"New York, he131935-John Shell, 37-year-old negro ex-
* convict, arrsted in Haverstraw, N. Y., last night-charget
with double mrder—in-Virginia,_was_today lodged in count
: : | |
" jail as a fugitive ifrom justice when he refused’ o waive
extradition even after the Sheriff of Spotsylwan!a Co,
Va, promised to send him to Richmdnd jail for safekeeping
Shell, accuw@d of the murders of Mr. and Jrs, > 1 Thomas
Coleman at their farm home near Fredericksburg, Ve. on
April 2, said he intended to appeal to the Soc .ty for
the Advancement of (Colored People to help him ©. his
fight against. extradition," DAILY. DEMOCRAT TI) 3, Green-
Ville, Mississippi, April 13, 1935 (1/1.)
Jackson, a farmilaborer formerly employ \\ by
Mr. “Coleman; Shell, long prison record eluding
15-year term for rape, employed as deli ryman
-for Montgomery Ward in se ae arias ee
\ CL & E VE STORIES, April 6. ‘
: VIRGINI A~ BAMAGAYT NE EACEAP TS, 777% P
on ic Sg Ng Ree. PLR: A ai aR SE ons 0
FE EAE ARES ES AE LER SEINE IE MIB ROE ATER TIE
EP RIG Sta
t
©
ol.
wadison Co., Va., sim, slave of Humphrey
Taylor, was condemned to be nanged on Sept.
26, 1833, and velued at #600, Sheriff attests
execution,
aud, mecs., arc, of Va., Item 153, Box 7, Env,
1833.
Coryeet date of execution 15 1-8 893
Lrime Was pnurder
Cite ¢xttutie /purmas of Goermr 9-50-33.
SIMON
Simon, property of David Caudle, sentknced for burglary
on June 17, 177, in Dinwiddie County. Sheriff Attests
yhe execution.
From one of first four envelopes, Box 1, Item 153,
State Auditor's files, State Library Archives, Rhchmond,
Vae
Auditor's Files, State Archives, Item 153, Box
1, 1792 envelope: certification that Caudle is
entitled to sum of 7 pounds for a negro execu-
ted in 1774. Entitled to payment beginning
Jan. 5; 1785.
Records for this County are Last
Kernseonbrurg, Yo. 1/29/87? Audreerdig litt as
@ 247.7"
Cotrigh There. 1/ 25(F 77
"Making the advent of a striking innovation upon the method of executing criminals in
Virginia, Henry Smith, alias Oscar Perry, a Portsmouth negro, will die in the new
electric chair at the penitentiary this morning, paying the penalty for a most revolt-
ing crime. The exact hour of the execution has not been made public, though it will
very probably take place before 10 o'clock, ‘The chair was completed some weeks ago,
and has been thoroughly tested by experts. It is therefore believed that no hitch
will arise and that the matter will quietly end. The negro, who will be fhe first to
die in the chair, was convicted-of a most heinous crime, He assaulted a poor old
woman, 75 years of age, and then robbed her house, ‘Smith has recently made a full
confession and realizes that he must die for his crime. The new law changing the mode
of execution from hanging to death by electricity was the result of a joint effort on
the part of Delegates Throckmorton of Henrico and Williams of Northampton, at the last
session of the Legislature, The former offered a bill providing that all executions be
at the State prison , and the latter got on an amendment that they be by electrocution,
instead of by hanging. Superintendent E. F. Morgan will have charge of the execution
and it is within his discretion to say what persons shall be admitted as witnesses,
the only provise in the law being that outside of the penitentiary officials, the
number shall be confined to "twelve reputable citizens."
TIMES=DISPATCH, Richmond, Virginia, October 13, 1908 (12:2.
"(Special to the Times Dispatch.) Norfolk, VA, September 28, =< Henry Smith, condemned
to death in the electric chair on the charge of assaulting aged Mrs, Albert Powell, this
afternoon, as he was being prepared for his journey to Richmond, where he will go to
the electric chair, confessed to hisc rimes, admitting that he committed both.assaults
within two weeks of each other,"
TIMES- DISPATCH, R,ychmond, Virginia, September 29, 1908 (2/5.
to Chicago was dispelled this morning when, according to a dispatch from that city, the
body of Walter F. Schulta was the right one, and not the Walter F, Schultz missing from.
Nebraska whem the pilice thought it might be. With the passing of 5 fays since the finding
of Schultz's body, the mystery as to how he came to his death is, indeed, just as baffling
as it was in the beginning, Clues of an endless variety have been run to earth without
furnishing one stem of evidence, and of the case now stands it is just the same as it was
Sunday morninge Interest in the case, however, is unabated, amd of aan}yfing is on the rise,
Large numbers of citizens are vying with the members of the police department in trying
to unravel whab is thus far regarded as one of Alexandria's unsolved mysteries," TIMES-
DISPATCH, R,chmond, Vas, Maréh 13, 1909 (3-1.)
Finding of body, TIMES-DISPATCH, Richmond, March 8, 1909 (1:5,)
SMITH, Henry, 5-year-old black man, electrocuted Virginia State Prison (Alexandria) on
® j June 35 1910.
"Washington, D. C., Maz. 18, 1909-I[he mystery surrounding the death of Walter F, Schultz, a
Chicago artist, whose body was found on March 8, near Alexandria, Va., about 8 miles from
. Washington, was cleared up at a preliminary examination of ) negro suspects today. One of
the suspected men confessed in open court, According to his story, Schultz, who was an
inauguration visitor to Washington, went to Alexandria while slightly intoxicated, and
attracted the attention of three negro toughs who determined to kill and rob him, The
Alexandria police have been wrking hard on the case since the body of Shultz was found
in a field with a deep gash in his throat. Two.or three days ago the police arrested
Henry Smith, Richard Pines, James Dorsey and Calvin Johnson, nown as 'bad' negroes, and
Smith confessed today. Smith said that about 7 o'clock on the night of March 6, he saw
Schultz on a street corner, surrounded by Pines, Dorsey and Johnson, and heard Schultz says
'My God, don't do me thatwaye' He approached the group, hesaid, and when he inquired what
the men were doing had a pistol poked in his face with a demand by Pines that he join them,
Then he said one of the negroes threw Schultz's overcoat over the artist's head and he was
picked up by all four, who started for a lonely field some distance out of the city, where
it was the intention to stab the artist to death and rob him, Presently they reached a
railroad track, and here JohnsonwntedSchultz, who had been beaten and cuffed on the way,
placed on the bias but objection was raised, Smith said, and the artist was carried into
a field close by, “ere Schultz's coat was taken off, his collar unfastened, and his
clothing loosened down to his waist. He said that clothes similar to those barbers used
when cutting hair were placed around Schultz's mck and Dorsey thrust a knife into Schultz's
thorat. The victim groaned, and Dorsey again plunged theknife into the neck, the vic-
tim's pockets were searched, and it was thought best not to take all the money, Smith said,
so that it would appear that the man was not killed for purposes of robbery. Dasey, who
did the killing, according to Smith, directed that Schultz's. watch be left in his pockets,
saying: 'Damm the watch; I have been pulled twice for a watch.' Themen separated, Smith
said, he going to the home of a negress,y where he spent the night. The cross-examim tion,
the negro said that the threenegroes with whom he had first seen Schultz had choked and
beaten him unmercifully, and Schultz was practigally helpless when carried to the
field, wherehe was killed in such a cold-blooded manner, Schultz s parents reside in 6hi-
vago, He was an artist and had traveled extensively. A letter from a married sister who
lived in Siopx City, low, was found in his pocket and led to the identification of the
bodye Smith s recital of the cold-blooded manner in which Schultz was killed has aroused
intense feeling in Alexandria, and therehave been threats of lynchinz the four negroes,
all of whom have a bad reputation," ‘JENNESSEAN, Nashville, Tenn., Mar. 19, 1909 (2=3,)
"(Special to The Times-Dispatch.) Alexandria, Vac, March 13, 1909, = Where was Walter F,
Schultz between the hours of 12 noon and 3 o'clock? This question has balked the police
department up to the present time. If this question could be answered the police believe
that they would have something tangible to work on regarding the death of the Chicago
artist, whose body was found with his throat cut Sunday morning on the outskirts of the
city. The reason the police are so anxious to have his whereabouts during thesé three
hours is that witnesses will testify, when the Coroner's jurg reconvenes, that Schultz's
body was not where it was found at noon, and others will testify that it was there at 3
o'clock, This morning Chief Goode received the following letter about the case from Mrs.
B. Hullihan, 227 Franklin Aves, Mount Vernon, Ne Ye: 'Please tell me something regarding
the man found in the woods, There is a man missing here, but he has two red moles on his
back, and an eyetooth capped with golds; oné of his toes is partly gone from an operation;
light complexion and German, about 35 years, weighs 135 pounds, So please let me know if
this corresponds.! The description given by the writer of the missing man from Mount Ver-
non tallies with that of the dead man, although it is regarded as impossible that it is the
man she is searching for. Chief Goode has had ‘he majority of the boarding-houses in this
city searched with a view of finding the trunk of the dead man, without success. He has
also had a number of local policemen go to Washington and search for the dead man's trunk
without success. The chief was somewhat perturbed this morning over the reports published
regarding the progress of the case, and refused to make a statement in reference to the
case. He admitted that he notified the Washington Police Department following the finding
of the body. As Schultz is supposed to have stopped over in washington it is generally
. j ‘laim he had in his ossession is cated
esi hahe A police that the, trunk hes Jopposition that the wrong vody had Been s oed
in same lodging hous
il
SMITH, James, black, 2h, electrocuted Virginia SP (Henrico Co.) April 9, 1909.
"Still as composed and unmoved as &b was onthe day he pleaded not guilty, James Smith,
colored, was sentenced yesterday morning to die in the electric chair April 9 ‘for the
murder of James Flynn, near Westhampton Park, January 25. Evidence and argument comple-
ted, the case went to the jury Friday night. Owing to the latkness of the hour, it was
considered but a short time, and court adjourned to 10 o'clock yesterday morning. At
10:30 o'clock, Foreman E. W. Christian brought in the verdict of guilty. A few minutes
later, Smith was in the detention cell of the county jail where he will be kept until the
authorities from the penitentiary send for him. As he was locked in the cell Smith said
to Deputy Sheriff Traylor that the verdict was just what he expected and that he did not _
want anyone else to die for the crime, This is considered a practical confession, in
spite of the fact that the man has stoutly maintained his innocence since the time. of his
arrest. Though all the evidence introduced in the case has. been circumstantial it has BEE
been nonetheless conclusive, In the argument presented by Commonwealth's Attorney Gunn
there was not an opening through which the accused might escape from the time he was seen
by Jopm Krug at the little station on the car line until he was arrested for the murder
of Flynn. Attorney A. H. Sands, who, at the request of Judge Scott, defended Smith was
unable to make any material point in his effort to prove an alibi, William Hill, colored,
in whose house Smith declared he had spent the night, testified that he had never stopped
over night with him, and that he had not been seem in that vicinity on the night that the
crime was committed, Smith himself has made several conflicting statements concerning
his whereabouts previous to the time when Flynn was found gying on the roadside," TIMES-
DISPATCH, Richmond, Virginia, February 28, 1909 (11-6.)
"No agreement was reached last night by the jury in the case of James Smith, colored, on
trial in Henrico Circuit Court for the murder of James Flynn, white, although the court
remained in session until.11 o'clock, Judge Smott ordered a recess until 10 o'clock this
morning, the jury being locked up at the Lexington Hetel in charge of Sheriff Le He Kempe
The case was bubmitted shortly before 10 @'clock last night, While the jury was in its
room Smith sat perfectly still, with only a slight tw itching of the fingers, Evidence
in the case is circumstantial, and while no direct proof of guilt has been introduced by
the Commonwealth, efforts of the defense to prove an alibi have collapsed, Attorney A. He
Sands, appointed by the court to defend the prisoner, has conducted his case vigorously.
Commonwealth Attorney Julien Gunn appeared for the prosecution. Flynn was murdered on the
night of January 25, and his body found lying beside the Westhampton car line the
following morning, with his head broken and some of his clothes missing. A drag net
s pread by the Richmond and Henrico police authorities brought in 2 negroes, Smith and
Charles Hamlet, Smith wearing.the clothes and Hamlet the shoes of the dead man, In the
trial yesterday the clothes were fully identified, Hamlet, put on the stand by the State,
said he got the shoes from Smith, ‘Smith took the stand in his own,defense, but his
answers were not conclusive, He was unable to account for his whereabouts at the time of
the murder, and his story of the means by. which He, secured the clothes was conflictinge
The negro, however, is evidently ignorant, and some of his SB@RBAGZRILLGRARARRAERAARaARE
contradictions may be due td failure to understand*questions: put to him, His past repu-
tation told against him, he having been in both the Richmond and Henrico jails, and he
failed to substantiave a rathér vague account ofthis employment‘by a sand dredging con-
cern on the river, The attorney's tables in the court room were piled high with exhibits,
clothes fiorn by Flynn, and identified bt Mrs, Re Le TeFord, at whose house Flynn boarded «
Mrs. DeFord, who had known Flynn for years, also testified that he had served to in the
war and was a Federal pensioner, It was not thought that he had any great amount of money
on him on the night he was murdered, The garments found on Smith when he was arrested
showed signs of blood, with bloody pockets, into which he evidently ran his hands, A
board, three feet long, broken on the edge, and bloodstained, found near the murdered man
and evidently the instrument of death, was introduced in evidence and carefully examined
by the jury. Police officers of the city and county who made the arrest testified in de-
tail of Smith's actions at the time and his efforts to hide the bloodstains on his SXXKax
Xi clothes, Among those who heard the case argued opinion is divided between a mistrial
and sentence to the electric chair, No one seemed to B expect an acquittal," TIMES-DIS-
PATCH, Richmond, Virginia, February 27, 1909 (8/7.)
"Stolid and indifferent, James Smith, colored, charged with the murder of James Flynn near
Westhampton Park a month ago, pleaded not tuilgty before Judge Scott, in the Henrico gam
387
’
THE RICHMOND NEWS LEADER, Tuesday. July 29 1986
‘Only.thing
man can kill
is the body’
By Rex Springston
News Leader staff writer
. WILLIAMSBURG — On a 1,000-
smith’s execution
not-worry to family |
acre church-owned farm just . Ba}
south of here, a famlly of funda-
mentalist Christians awalts the
death of Michael Marnell Smith in
Virginta’s electric chair. :
The Isolated dairy farm, bound-,.
ed by marshes and the James Riv-
er, is the home of the Smith famlly
headed by Marion “Okle” Smith,
63, the farm's Bible-quoting man-
ager and Michael Smith's father.
Unlike most families of con-
- demned men, the Smiths are not
worrying or grieving over their
loved one’s impending death.
“God has a purpose for every-
thing that happens,” sald the elder
Smith. “This is God's will. ... Mi-
chael has made his peace with
God. He does not fear what men
will do to him. The only thing man
_can kill is the body.”
Smith, a rangy man with a gray
mustache and expressive hands,
sat in a straight-back chalr
against his dining room wall. A
crucifix hung over his head. Beside
it hung a picture of the Last Sup-
per. Smith held a large, worn Bible .
on his lap and leafed through to.
find support for his points.
Unless they repent, Smith sald,
those who take part In the process
ie to the execution will go to
ell,
“The only thing that grieves me
about this is thinking about the
people who will be lost because
they find pleasure in this thing
they call justice,” he sald.
_ Michael Smith, 40, the oldest of
elght sons and four daughters born
to Okie and Rita Smith, ts to be
, executed Thursday about 11 p.m.
Throughout his youth, Michael
Smith's life revolved around the
farm, his family and the Gospel
Spreading Church of God. (The
“God has a purpose for ev-
erything that happens,” says
Marion “Okle” Smith, father |!
of condemned killer.
church has churches In seven clt-
jes in the East, the closest being
Newport News. The farm Is main-
tained to provide food to church
members in the event of economic
disaster, the elder Smith sald.)
Marie Deans, a Richmond para-
legal who has assisted Michael
Smith in his appeals, sald the
Smith children lived in “sort of a
closed society. They did not play
with or become friends with any-
one outside of the church. They
just went to school, went to
church, and worked. ... Dates.
were basically going to church.”
Michael Smith's first major ©
gilmpse of the larger world came
when he entered the Alr Force as &
teen-ager. He served in Vietnam
as a cook. ‘
The elder Smith sald his son was
not a rebellious youth but worked
hard on the farm. He had recelved
0 See Execution, Page 3
Execution
CContinued from Page 1
training in the artifical insemina-
tion of cattle, the father said.
In 1973, however, Smith was con-
victed in Williamsburg-James City
County Circuit Court of raping an
18-year-old girl He received a 25-
sentence (15 years were sus-
pended) but was released cfter
serving three years and four
months. :
Four months later — on May 23,
1977 — Michael Smith came upon
Audrey Jean Weiler, 35, on a James
River beach about a quarter-mile.
from his house. ee
The York County divorcee an-
mother of two apparently had go" 2
to the beach to sunbathe. Members
-|2 of the woman's family had known
+ the Smiths for years, but she and
Smith reportedly were strangers. —
Smith later confessed to police
what happened: He helped Ms.
Weiler extract briars from her feet,
then forced her into a wooded area °.
and raped her. He said he choked
her until she went limp, then car-
ried her into the river and held her
under for several seconds. Finally,
he stabbed her several times with a
hunting knife. He tossed the knife
aside but later led police to it.
Smith told police he killed Ms.
Weiler because “all I could think of
was going back to the Penitentia-
ry.” During questioning, Smith be-
~gan to cry, and he asked police
officers to kneel and pray with him.
‘= ~Five weeks later, a new Virginia
capital punishment law went on the
books, and that November, Smith
*- became the first person sentenced
to death under it.
Since then, Smith has been a
“model inmate,” said Toni V. Bair,
warden of Mecklenburg Correc-
tional Center, home of Virginia's
death row. “He is exceedingly quiet
and well-mannered. ... In a sense
he is not even there.”
Smith has been moved from
Mecklenburg to a cell in the State
Penitentiary here just a few steps
from the electric chair.
, Like his family, he accepts his
fate as the will of God, Ms. Deans
said. “He is what he says he is. He in
fact reads his Bible all the time.” _
Smith has fasted in recent days to
purify himself, and his weight has
dropped about 25 pounds to 130, Ms.
Deans said. He stands about 5 feet,
10 inches tall. (During Smith's trial,
his father fasted and wore a burlap
sackcloth that he called a “robe of
humility.”)
The elder Smith doubts his son
committed the murder. However,
_ Ms. Deans said the son continues to
admit his crime.
Michael Smith has little interest
in talking publicly about the crime,
and Ms. Deans said he once told her
he hated seeing the case reported
constantly in the news. He said he
didn’t like the publicity dredging up
‘bad memories for the victim's fam-
ily, Ms. Deans said. Smith is mar-
ried and the father of three.
For the victim’s family, the nine-
year process of appealing the case
through state and federal courts
has been a period of frustration.
After the US. Supreme Court re-
cently rejected the final federal ap-
peal, Walter Robertson, one of Ms.
Weiler’s brothers, said, “Definitely
justice has been done, but it took a
little longer than I thought it should
have.” Robertson, a James City po-
lice investigator who assisted with
the case, said, “I guess they had to
protect his rights and give him all
the benefits that he never gave my
sister.” roe? le Se
At the Smith home, one finds
"sympathy for the victim's family
but, beyond that, a feeling that all .
has followed a divine plan to which
men and women are not privy.
John Smith, 25, one of Michael’s
brothers and a security guard at the
Virginia Power nuclear power
plant in Surry County, said, “Hav-
ing Christ in your life helps you
cope with things.”. — ..,
And Okie Smith said his son one
day wil] judge in heaven those who
put him to death...
i¢
“That,” the father said, “will be
his duty as a saint.”
\
‘THE RICHMOND NEWS LEADER, Wednesday, July 30, 1986
Baliles denies clemency, clears path to execution
Gov. Gerald L. Baliles today denied
The case has been through the ap-
off a girl’s clothes, predisposed the
peals process. Smith lost his latest
jury to feel that Smith would be dan-
gerous in the future.
“I know he supports the death pen-
alty,” Snook said. “As a lawyer, I
tive to the facts.”
“Based upon my review of the case,
I am not persuaded that the gover-
nor’s power of executive clemency would have expectd him to be sensi-
should be exercised in this matter.”
the request for clemency by the attor-
ney for convicted murderer Michael
Marnell Smith.
appeal last week before the Virginia
Supreme Court. Baliles was attorney
general during part of the process.
Snook asked Baliles to grant Smith
life imprisonment without parole in
lieu of the execution. Snook maintains
Virginia’s law has been changed
since then to bar such testimony.
psychiatric testimony damaging to
Smith should not have been allowed
in the court during the sentencing
phase of Smith's trial.
Smith, 40, has been on Virginia's
death row longer than any other pris-
Smith is scheduled to be executed
at the state Penitentiary around 11
p.m. tomorrow for the rape and mur-
der of Audrey Weiler, 36 in James
oner.
City County on May 23, 1977.
J. Lloyd Snook III of Charlottes-
ville, Smith's lawyer, said last week
_The denial clears the way for
Smith’s execution tomorrow night in
Virginia’s electric chair.
option available for trying to save
the clemency petition was the last
Smith’s life.
Snook said today he didn’t “have
any good sense” as to how Baliles
would act on his request.
- “I have reviewed your letter and
the files carefully,” Baliles wrote ina
letter delivered to Snook today.
Snook says the testimony, about an
alleged incident in which Smith tore
SMITH, Michael M., black, elec. Ya. SP (James Chty County) 7-31-1986.
Pe) hs! 5 r e ,
Ma Shing Pen Post Thursday FH FE
Baliles Refuses to Halt Execution
Of Convicted Murderer, Rapist
Oe ae
Smith Scheduled to Die in Electric Chair Tonight
From News Services
RICHMOND, July 30—Virginia Gov.
Gerald L. Baliles today refused to commute
the death sentence of Michael Marnell ~
Smith, scheduled to die Thursday night in
the state’s electric chair for the 1977 rape
and murder of a woman along the Colonial
Parkway near Williamsburg.
“Based upon my review of the case, I am
not persuaded that the governor's power of
executive clemency should be exercised in
this matter,” Baliles wrote in a letter to
Smith’s attorney, Lloyd Snook III of Char-
lottesville.
Snook said his clemency request was the
“final option” and that he would not pursue
further appeals.
Smith, 40, is to die at 11 p.m. Thursday for
the murder and rape of Audrey Weiler, a
mother of two who was sunbathing on an iso-
lated stretch of beach along the James River.
Smith, who served in Vietnam, had been
released from prison five months earlier af-
ter serving three years of a 10-year sen-
tence for rape.
Smith confessed two days after the mur-
der, detailing to local, authorities how he
raped Weiler, choked her, dragged her into
the James River and held her head under Wa-
ter until she drowned. He also stabbed her.
Smith, who had been diagnosed by psy-
chiatrists as a sexual deviant who suffered
from a personality disorder, told police he
murdered Weiler because he feared he
would be returned to prison.
Smith had been scheduled for execution
ee
Smith’s attorney said the
clemency request was
the “final option.”
twice in 1985, but an appeals court granted
a stay each time.
As part of his fundamentalist faith, Smith
believes that “whatever happens is God’s
will,” Snook said.
Snook, Warden Michael C. Sambetg and a
clergyman are to witness the execution, as
are five law enforcement officers, four report-
ers, a professor and an accountant, ac~ording
to the state Dep $tment of Correction,
\ | aati Poo AT a an Oa ee ee,
‘Y
Executed as
Appeals Fail
Smith Recites Psalm
Before Electrocution
By Donald P. Baker
Washington Post Staff Writer
RICHMOND, July 31—Michael
Marnel Smith, a 40-year-old rapist
-and murderer who had been await-
ing execution longer than any other
convict on Virginia’s death row, '
was electrocuted tonight after the
failure of last-minute appeals, in-
cluding one to the U.S. Supreme
Court.
Smith’s electrocution, scheduled
for 11 p.m., was postponed by Gov.
Gerald L. Baliles, who gave the go-
ahead at 11:36 after word was re-
ceived that the Supreme Court had
rejected the appeal on a 5-to-3 vote.
Smith, who was convicted of kill- |
ing a mother of two who was sun-|
bathing near the James River in
1977, recited the 23d Psalm as he
was strapped into the electric chair
in the basement of the Virginia Pen-
itentiary here, prison spokesman >
Dwight Perry said. He was pro-
nounced dead at 11:42 p.m. after
being given two 2,200-volt jolts. He
had been on death row for nine
* years.
Tonight’s appeals ‘were under-
taken by attorneys for the Southern
Prisoners Defense Committee,
which sought a stay until the U.S.
Supreme Court could rule on two
cases that raise the issue of wheth-
er the death penalty is being discri-
minatorily applied to blacks who kill
whites. ;
Smith’s attorney, -J. Lloyd Snook
III of Charlottesville, said the Su-
preme Court has stayed three ex-
ecutions in the last week because
they raise the issues in those cases. |
Smith was black, and the woman he |
killed was white.
The appeal for a stay of execu-
tion was first rejected tonight by |
U.S. District Judge Jchn A. McKen- !
ference telephone call, by the 4th
zie in Norfolk, and then, in a con- |
U.S. Circuit Court of Appeals be-
fore it was taken to the Supreme
Court.
POST, Washington,
|
Chief Justice Warren E. Burger
was joined by Justices Sandra Day
O’Connor, Lewis F. Powell, William
’ Rehnquist and Byron White in re-
_ jecting the stay, according to the
office of Virginia Attorney General
Mary Sue Terry. William Brennan,
Thurgood Marshall and Harry
Blackmun dissented, and John Paul
Stevens did not vote.
Both the U.S. and Virginia su-
‘preme courts and Baliles had re-
jected appeals pressed in recent
days by Snook, who argued that
Smith's trial included improper tes-
timony from a psychiatrist.
Snook gave his consent to to
night’s defense committee. efforts,
BR
MICHAEL MARNEL SMITH
... “very quiet” before death
although he had said further appeals
would be frivolous. He said Smith
was resigned to his fate.
When Smith, a fundamentalist
Christian, was informed that the
state Supreme Court had rejected a
stay last Friday, he said, “God’s will
be done,” according to Snook.
Snook said he was with Smith in
his cell until 10:40 tonight and that:
“he was very quiet, very strong.”
Smith was convicted of the mur- |
der and rape of Audrey Weiler, a
36-year-old mother of two and part-.
time student at the College of Wil-
liam and Mary who was sunbathing
on an isolated strip of beach along
the James River.
Smith, who had been released
from prison five months earlier af-
ter serving three years for rape,
confessed two days after the killing.
He told police that after helping
Weiler remove briars from her foot,
he raped her, choked her, dragged
her into the river and held her head '
under water until she drowned, and
then stabbed Fer.
Smith, who was described by psy-
chiatrists as a sexual deviant who
suffered from a personality disor-
der, told-pglice he murdered Weiler
because he feared he would be re-
turned to prison for the rape.
Smith had a wife and three chil-
dren, including an 8-year-old who
-was born shortly after Smith was
sentenced to death.
The family lives in Williamsburg,
along with Smith’s father, seven
brothers and four sisters.
Tonight’s execution was the fifth
in the state since the death penalty
was reinstated in 1976, and the |
first in the administration of Baliles,
who campaigned as a proponent of
capital punishment.
It was witnessed by 10 persons,
including, for the first time in récent
years, four media representatives.
Smith was given a last meal of
seafood, at his request. Dwight Per-
ry, penitentiary operations officer,
said it consisted of fried shrimp,
fried oysters, clam cakes, cherry
pie and juice.
Outside the penitentiary, groups
for and against the death penalty .
gathered across the street from |
each other, separated by police bar-
ricades. ,
About 90 opponents of capital
punishment, many of them carrying |
candles, sang quietly. |
Ds Oey Friday, August l, 1986, Pace B3
fay Jin Mason and Bu [Wesson |
News Leader staff writers...
: : “Forgive me, Lord. fica tar thee.”
With those words, con' rapist-
killer Michael Marnell Smith was ex-‘
ecuted last night in Virginia's electric
chair for a murder he aie ‘com-
mitting nine years ag “i
Gov. Gerald L. Bailes, delayed the
execution for about 40 minutes while
attorneys’ for an Atlanta-based civil
rights group carried a request: for a
stay to the U.S. Supreme Court. °*
The high court and two other feder-
al courts refused to intervene, howev-
er, and Smith, 40, walked to'the:1908-'
vintage oak electric chair reciting the ,
words of the 23rd Psalm: and
forgiveness, according to witnesses.
A news reporter who witnessed the
execution quoted Smith ‘as saying
“Forgive me, Lord. I.come to thee,”
caer before two 2,200-volt bursts”
of electricity y sunged ee rele
Penitentiary’s setae off
forever*s.
sof th ; |
iy held vigil outside t he ite
at Belvidere and §; a ,
the 23rd Psalm,” Dwight Perr;
afterward while making the
announcement of a tic
The first sab0- )-volt fot on
ity was administered at 74 Laan ¥
was. ser caer by a second 55-se
idl
elec. Va. SP (James City) on July 31, 1986.
re y se
: Nini a's
Pefome Birthday Gift
by LAWSON SCOTT
The James River flows majestically through the state of Virginia, past
historical Jamestown and Williamsburg. It is in many spots a placid and
beautiful river and at Williamsburg, it is bordered by peaceful strips of sandy
beach. }
These beaches are favorite spots for sunbathers and fishermen. They
can also be a favorite spot for brutal murder.
At about 4 a’clock on the afternoon of
May 23, 1977 — a beautiful spring day
with temperatures close to 80 degrees —
two National Park Rangers stood on the
P sandy beach just off the Colonial Park-
way, which borders the river. They
talked intently; concern showed on their
| faces. :
After a brief, serious discussion, the
two rangers began to walk in opposite
F* directions on the beach. Ranger Trent
Taylor started upstream toward James-
m town; Ranger Frank Kuncir began walk-
"ay ing downstream toward the Chesapeake
Bay. They studied the area intently as
they walked.
Kuncir had carefully covered about a
; half a mile of the beach area when he saw
F an object floating half-submerged in the
F water a short distance from shore. His
eyes glued to the object, Kuncir hurried
| forward along the beach.
| The object began to take on the form of
| ahuman body.
F Kuncir waded out into the shallow
F fiver's edge. The object was what he
P feared — the nude body of a young blonde.
_ Woman. The body was floating face down
and the ranger pulled the woman’s body
beck to the beach. He could see what
®peared to be stab wounds in the back.
Within minutes after Kuncir had in-
his fellow ranger of the discovery,
t law enforcement people were on
way as well as officials to take charge
the body.
Both rangers knew who-the wonran
Was. She was Mrs. Audrey Jean Weiler.
‘earch for the 35-year-old woman had
“sun only a short time before with the
Sscovery of a pocketbook on the side of
the road
That spring day had started out beauti-
Previously convicted rapist,
Michael Marnell Smith, Is flanked
Y Police officers as he leaves
courtroom.
fully for Mrs. Weiler; it was a day full of
Promise: she was in good spirits because
it appeared she and her husband were
going to get back together — and it was
her birthday.
The attractive Mrs. Weiler had taken
her two daughters, Heather, 13, and
Holly, 8, to school that morning after fix-
ing them a light, nourishing breakfast.
The daughters wished their mother a
happy birthday and said goodbye —
forever. She spent the morning at home
on Simple Road in York County doing the
usual light housekeeping chores, and then
shortly before noon went to a nearby
| This was going to be one of the happiest days of
F Audrey’s life. It was springtime, it was her birthday
| and, most of all, she was to meet her ex-husband to
work out a reconciliation. It turned out to be
her last day alive.
shopping center to pick up some items
from a drug store. A friend of hers, Ned
Roberts, who was going to lunch with a
date, saw Mrs. Weiler as she was leaving
the shopping center. She was alone in her
car when Roberts saw her.
The day was scheduled to be one of the
warmest so far that spring, and this ap-
parently prompted Mrs. Weiler to go to
the sandy beach along the James River to
sunbathe. Early that May afternoon she
slipped on a pair of green corduroy slacks
over her two-piece swimsuit. She wore
(continued on next page)
se Ro SABE,
re are ees =
sandals and took with her a book of
poetry on growing toward God. She left a
typewritten note for her daughters telling
them where she had gone and instructing
them ‘to stay around the house.
At 3:11 p.m. that day, National Park
Ranger Richard Young, while cruising
around the Colonial Parkway area, just
happened to see an object on the side of
the road at the Route 199 exit.
Ranger Young had stopped his vehicle
and picked up the object, which turned
out to be a woman’s purse. There was one
penny in it —plus the identification of the
owner, Mrs. Audrey Jean Weiler.
Upon finding the purse, Ranger Young
felt more than the usual concern over
finding a personal object. Ranger Young
was acquainted with Mrs. Weiler and her
ex-husband and brothers. One brother,
Walter Robertson, was an investigator
for the James City County Sheriff’s De-
partment. James City County is adjacent
to Williamsburg. Another brother, Alvin
T. Robertson, served as fire marshal of
Williamsburg, where her former hus-
band, T. K. Weiler, was assigned as as-
sistant fire marshal.
Ranger Young quickly took the purse
to a family member and a search was
begun immediately for Mrs. Weiler and
her car. Rangers Taylor and Kuncir were
the rangers in the search party who spot-
ted Mrs. Weiler car, a dark-green Chev-
rolet Vega, parked unoccupied at the
Archer’s Hope turnoff on the parkway.
The keys were not in the ignition. No-
thing in the car nor immediately sur-
rounding it aroused their suspicion.
It was then that Rangers Kuncir and
Taylor began search of the beach because
they knew many people parked their cars
along the cutoffs to go fishing or for a
stroll along the beach. They hoped that
Mrs. Weiler had just left her purse in the
car and someone had stolen it; perhaps
she had not even missed it yet, they
reasoned.
But about 100 yards east of the car, the
rangers made another discovery. On the
beach not far from the water’s edge they
found a beach blanket and on it were keys
that fit Mrs. Weiler’s car, a pair of
women’s sandals and a book of poetry
with the tragically ironic theme of
‘Growing toward God.”’ It was then that
the rangers split up, with one going up-
stream and the other going downstream.
There was still hope in their minds that
Mrs. Weiler had simply walked a distance
from her belongings and was unharmed.
Of course, this was not to be.
Immediately after the arrival of other
officers and investigators, a search began
in the area for other evidence that might
aid in solving the homicide.
Shortly after the search for evidence
got under way, Ranger Don Patterson
made a discovery. Less than 100 feet
from where the body was found, Ranger
18
Patterson found in the thick underbrush
Mrs. Weiler’s two-piece swimsuit and her
pair of green corduroy slacks. Within
yards of the cleared beach, some sections
of the area are secluded with trees, vines
and underbrush, so that a person can see
only a dozen or so yards at a time. The
swimsuit and slacks were found in bushes
about 25 yards from a small, bowl-like
clearing.
Since the body was found in James City
County, jurisdiction for the investigation
fell to the sheriff's department of that
county. Heading the team of inves-
tigators from the department was Fred
Dunford. He is a personable man who had
served for 20 years in the Army’s Crimi-
* nal Investigations Division (CID) before
joining the James City County Sheriff's
Department. He has solved crimes all
over the world.
Upon examining the body, Dunford
noticed bruise marks on the woman's
neck. He also noticed that a necklace and
other personal jewelry was still on her
body, a somewhat curious fact since her
purse had apparently been taken. There
was another thing about the purse that
bothered Dunford. It was found three
miles away on the ramp that led onto the
parkway, not away from it. It seemed
logical to him that the purse would have
been thrown away as someone was leav-
ing the beach area — and Mrs. Weiler’s
body.
For examination, the body was taken
to the deputy chief medical examiner Dr.
M. F. Fierro in Richmond, the state capi-
tal. Medical examination determined that
Mrs. Weiler had been stabbed in the back
several times with a knife or similar ob-
ject that had serrated edges, that she had
been choked, and also that she was not
quite dead when placed in the water.
Whoever the assailant was wanted to
make sure she died because, the medical
examiner said, she could have died from
any one of these causes, or a combination
of the three. Although the possibility of
intercourse, even forced intercourse, was
not ruled out, medical authorities de-
clined to state flatly the woman had been
raped.
**But we found something in that little
clearing (near the water's edge in the vic-
inity of where the body was discovered)
that really puzzled us,’ Dunford said. He
referred to the discovery of a recently
used condom and a woman’s tampon.
Both had traces of fresh blood on them.
**It was established that Mrs. Weiler had
been having her monthly menstrual
period,’’ Dunford said, *‘and blood sam-
ples from the contraceptive and the tam-
pon matched those of Mrs. Weiler’s
type.”
Discovery of the condom and tampon
caused puzzlement among veteran inves-
tigators. Dunford stressed that in no way
should it be construed that there was any
reflection being cast on the moral;
ter of Mrs. Weiler, a moral and f
respected individual, but there seé@ Me
strong likelihood that this was not a
of rape. Dunford said, ‘‘As an
tigator who has covered rape cq
over the world, I've never known;
to use a prophylactic.”’
It was natural for trained i inves
to consider the theory that Mrs. Wa
was not raped, but was perhaps the vj
of a deadly lovers’ quarrel. This qu
could have been brought about b
Weiler’s plans to go back to herh
thus breaking off a relationship wi
lover, investigators theorized. Ags
usual police procedure of attemptiy
look at every angle of a murder sho
reflect on the moral character of:
Weiler; but investigators would not:
been doing their thorough job had’
failed to examine every possibilit
With this theory in mind, it was nate
they check routinely on the wheres Do
of the estranged husband, Williamsbuy
assistant fire marshal. Investigatg ;
stated emphatically he was never ¢
dered a suspect; his whereabouts‘ a
easily be determined.
After tracing her steps as much. aS pos
sible that fateful Monday, Investi zal tor
Dunford then began checking on’
whereabouts of known acquaintanceg
Mrs. Weiler. Dunford later said#
worked along with other officers all Mé
day night on this. We learned shé ad
been taking an art course at William @nd
Mary College. With the help of campig:
police, we went to the art studio she™
using.”” There they found Mrs. We
had been sculpturing the bust of ayo
male friend of hers. She had also:B
dating this man some, the daughters j
Dunford. The man was Ned Roby 3
It was the middle of the night but} ¥
ford went to Roberts’ residence tog
tion him about Mrs. Weiler. It wa a
that Roberts told Dunford about s€
Mrs. Weiler at the shopping center’ at
noon on Monday when he was on fig}
to lunch with another date. Dunfo’
‘He told us that after lunch he
date and then was alone for a pe
time.’’ Roberts denied seeing
Weiler except for that one momen
shopping center.
Since the Colonial Park way is tf
regularly by a number of people,’ ;
City County deputies along withs
Rangers, spent much of the nexts
Tuesday, questioning motorists ¢
and leaving the parkway’s interseCyyme
with Route 199, where the purse had Reems,
found. They asked if anyone had se¢# : l
purse tossed out of a car or anythin, g%
that would seem suspicious. The
blanks. ae
Meanwhile, Dunford request
through the news media for anyone)
come forward with information if:
7¥
he mo seen a vehicle parked near Mrs. On Wednesday, lab men reported the
oral anal ‘rer’ dark-green Vega atthe Archer’s pocketbook had traces of fish scales on it.
t there se : ¢ turnoff the day before, or if they This would suggest, of course, that it had
(
been carried next to some fish or perhaps
in a container where fish had been. The
sandy banks of the river were favorite
spots for fishermen, Dunford knew.
Could the crime have been committed by
a lone fisherman who had gone out for a
day of relaxation on the James River?
seen any other unusual activity on the
rkway that beautiful spring day.
Nothing substantial turned up that day,
spite efforts to follow up completely on
; slightest hint of a lead.
although it was little more than a
that Mrs. We ach. Dunford knew that at the moment
erhaps the js strongest possibility lay in Ned The picture didn’t seem to fit...
wel. This ef poberts. the former boyfriend. Dunford Suspicion surrounding Ned Roberts
rt about by yas told by the daughters that on one eased somewhat, and still he was the only
k to her hush casion Roberts had come to their resi- one discovered so far with even a hint of a
tionship wi dence. during a bout of drinking and had motive, and he had displayed, on at least
rized. Aga hanged on the door demanding to be let one occasion, a temperment possible of
such a deed.
f attem Could this temper displayed on that
<salineon shou Dian have been the type of reaction On Wednesday , May 25, two days after
harécter off Roberts might have displayed if Mrs. the homicide, the case appeared no
nearer to solution. Dunford received a
scrap of information, however, that might
prove significant in unraveling the puz-
zle. One Howard Smith, who with other
Weiler informed him she was returning to
ber husband? Dunford pondered this and
other questions.
ind. it was nat Roberts, when questioned, maintained
the whereabe be was completely innocent of any relatives operated a large agricultural Oop-
d, Williamsbe vrongdoing. And Dunford could nothelp eration known asGospel Spreading Farm
1. Investigan tut wonder what, if Roberts and Mrs. across the parkway from Archer's Hope,
came forward with an observation he had
made.
He said that on Monday, the day of the
crime, he had been in the field on one of
his tractors and had seen a medium-green
car about four or five years old parked at
Archer’s Hope not far from where Mrs.
Weiler’s car was. Although he had been
at some distance, Smith told Dunford he
had seen a man putting some fishing gear
Weiler had had a deadly quarrel on the
banks of the James, what was her pocket-
book doing three miles from the scene? It
svcmed almost inconceivable that
Roberts would have taken it. But, could a
person not connected in any way with the
murder have taken the pocketbook after
Mrs. Weiler lay lifeless in the water? This
ssibility tugged at the corners of
Dunford’s mind.
was never CG
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in the trunk of the car. Although he could
not describe the man or the car in any
detail, he did notice that trunk of the car
had a CB antenna on its lid, night in the
middle. The man drove away without
doing anything further, Smith told the de-
tective. ord
Sketchy, but something. Dunford
asked the Park Rangers to be on the look-
out fora medium-green car, about four or
five years old, with a CB antenna in the
middle of the trunk lid.
Dunford and fellow officers of Sheriff
A. M. Brenegan’s department felt they
were at a dead end. It was then that Dun-
ford decided to question Ned Roberts
while they were together near the scene
of the crime. He had decided to use an
interrogator’s ploy to see if he could flush
out more of a statement from Roberts.
This was in the early afternoon of Wed-
nesday, May 25. As far as Dunford could
determine at this point, Roberts was the
last known person to have seen Mrs.
Weiler alive.
They stood together looking down at
the beach where Mrs. Weiler had been
sunbathing that beautiful spring after-
noon. In an earnest. quiet voice, Dunford
asked Ned Roberts, ‘‘Ned, if you say you
did not come down on the beach with
Mrs. Weiler, can you explain why we
would find your footprints down on the
beach? Perhaps you were down here for
some other reason, or even at a different
time?”’
Roberts’ response was immediate and
emphatic. He flatly denied he had been on
the beach with Mrs. Weiler or that he had,
in fact, ever been on this beach and there
was no possible way his footprints could
have been there since he had never step-
ped foot on it.
In his mind, Dunford cleared Roberts
right then. He explained, *‘We had not
found his footprints down there. But if he
had been down there he would probably
have thought we had found his footprints.
Then he would have made up some ex-
cuse as to why his prints were there. He
would have given us some logical expla-
nation as to what he was doing on the
beach.”’
With that, however, the one slim lead
(continued on page 61)
James City County Sheriff's De-
tective Fred Dunford examines
the spot on the entrance ramp to
the Colonial Parkway (seen at
rear) when victim’s pocketbook
was found.
LESTER RFR PERO TES CLUE ETRE EY EPFL TERME IR ON EET EL Te eT ETE Toe TTT eT aL a TIE Y LEH TT | PEPER PEN LTY eeMET eT eee eee Eee
wT PEL EPTETS UTES
138 Va.
penalty statute is ameliorative. Code 1950,
§§ 18.2-10(a), 19.2-264.2 to 19.2-264.5.
26. Constitutional Law <= 197
When changes subsequent law makes
in prior law are ameliorative, there is no ex
post facto violation; the same is true when
changes, though not ameliorative, are mere-
ly procedural.
27. Constitutional Law ¢=203
Criminal Law <= 1206(1)
Application of 1977 death penalty law
which became effective after commission of
crime and under which defendant was sen-
tenced was not ex post facto violation.
Code 1950, §§ 18.2—10(a), 19.2-264.2 to 19.2—
264.5.
28. Criminal Law @633(1)
Procedural provisions of statute in ef-
fect on date of trial control conduct of trial
insofar as practicable. Code 1950, § 1-16.
29. Constitutional Law ¢270(1)
Criminal Law ¢=1206(1), 1213
Death penalty statute is not facially
unconstitutional under the Eighth and
Fourteenth Amendments. Code 1950,
§§ 18.2-10(a), 19.2-264.2 to 19.2-264.5; U.S.
C.A.Const. Amends. 8, 14.
30. Criminal Law ¢=1208(1)
Words “depravity of mind” as used in
death penalty statute mean a degree of
moral turpitude and psychical debasement
surpassing that inherent in definition of
ordinary legal malice and premeditation.
Code 1950, § 19.2-264.2.
See publication Words and Phrases
for other judicial constructions and
definitions.
31. Criminal Law @1208(1)
Words “aggravated battery” within
meaning of death penalty statute mean bat-
tery which, qualitatively and quantitatively,
is more culpable than minimum necessary
to accomplish an act of murder. Code 1950,
§ 19.2-264.2.
See publication Words and Phrases
for other judicial constructions and
definitions.
248 SOUTH EASTERN REPORTER, 2d SERIES
32. Homicide 311
In prosecution for capital murder fol-
lowing rape, jury instruction during penalty
trial that did “not advise jury that death
penalty was not mandatory but did instruct
jury that it “may fix * * * punishment
at death” was not improper. Code 1950,
§ 19.2-264.4, subd. C.
33. Criminal Law 731
What a jury “may” do it is at liberty
not to do.
34. Criminal Law ¢1208(1)
Commonwealth is permitted rebuttal
arguments during penalty phase of trial of
capital cases. Code 1950, § 19.2-264.4,
subd. C.
35. Homicide ¢=354
Death penalty imposed for conviction
for capital murder following rape was not a
product of invidious passion, prejudice, or
other arbitrary factors but product of rea-
soned judgment grounded in evidence and
in accord with law. Code 1950, §§ 18.2—
10(a), 18.2-81(e), 19.2-264.2 to 19.2-264.5.
36. Criminal Law <= 1206(2)
Homicide 354
Imposition of death penalty following
conviction for capital murder following
rape was not excessive or disproportionate.
Code, §§ 18.2-10(a), 18.2-81(e), 19.2-264.2
to 19.2-264.5.
David F. Pugh, Williamsburg (James Up-
dike, Law Student; Stone, Bland & Wood,
Williamsburg, on brief), for appellant.
James E. Kulp, Deputy Atty. Gen. (Mar-
shall Coleman, Atty. Gen., on brief), for
appellee.
Post-Conviction Asst. Project of the Uni-
versity of Virginia School of Law (Richard
J. Bonnie; John Petrila, on brief), for ap-
pellant amicus curiae.
Before I'ANSON, C. J., and CARRICO, ©
HARRISON, COCHRAN, HARMAN,
POFF and COMPTON, JJ.
cae
|
|
|
|
SMITH v. COM. Va. 139
Cite as 248 S.E.2d 135
POFF, Justice.
On November 2, 1977, Michael Marnell
Smith was convicted by a jury of capital
murder following rape. Code §§ 18.2-10(a)
and 31(e) (Cum.Supp.1977). The next day,
pursuant to the bifurcated trial proceedings
prescribed by Code §§ 19.2-264.2, -264.3,
—264.4, -264.5 (Cum.Supp.1977), the jury
heard evidence on the question of penalty
and recommended a sentence of death. A
post-sentence report was filed and, follow-
ing another hearing, the trial court af-
firmed the jury’s recommendation and en-
tered final judgment November 30, 1977.
Defendant’s appeal and automatic review
of sentence were consolidated and accorded
priority on the docket. Code §§ 17-110.1,
—110.2 (Cum.Supp.1977). By leave of court,
the Post-Conviction Assistance Project of
the University of Virginia filed a brief ami-
cus curiae in support of defendant’s posi- .
tion. This is the first capital case appealed
under the current statutes.
The medical evidence showed that Mrs.
Audrey Jean Weiler, whose body was found
floating in the James River at a point near
the Colonial Parkway within James City
County, died on May 28, 1977 as the result
of asphyxia, drowning, and multiple stab
wounds.
Defendant signed a written statement
admitting that he encountered decedent
walking alone on the beach, displayed a
knife, ordered her to disrobe, and engaged
in sexual intercourse with her; that, fear-
ing she “could send [him] back [to the peni-
tentiary]”, he “started choking her with
both hands until she went limp”;
and that he then “dragged her out into the
water a couple of feet”, “held her head
under the water {until] she
stopped moving”, and “stabbed her in the
back several times.”
On brief, defendant poses multiple ques-
tions which we will address in five catego-
1. We will consider the arguments advanced by
amicus in support of the errors assigned by
defendant. Some of the issues raised by those
arguments, however, were never raised in the
court below, are not comprehended by the as-
Signments of error, and are not addressed by
ries. The first category relates to pre-trial
proceedings; the second to the guilt trial;
the third to constitutional challenges to the
statutory complex under which defendant
was convicted and sentenced; the fourth to
the penalty trial; and the fifth to the pro-
priety of the penalty imposed.
I. PRE-TRIAL PROCEEDINGS
A. Jurisdiction
[1,2] Defendant assigns error to the tri-
al court’s denial of his pre-trial motion to
dismiss for lack of jurisdiction. Tacitly ac-
knowledging that the crime was committed
within the geographical boundaries of
James City County, defendant argues that,
since the land in question is owned by the
United States, it was incumbent upon the
Commonwealth to show that the United
States did not have exclusive jurisdiction
over crimes committed thereon. It is well
settled, however, that the mere ownership
of land by the United States does not divest
a state of its jurisdiction over that land, and
that the nature and extent of the federal
jurisdiction is dependent upon the consent
of the state. James v. Dravo Contracting
Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155
(1937); accord, Waltrip v. Commonwealth,
189 Va. 365, 53 S.E.2d 14 (1949). The Unit-
ed States was ceded concurrent jurisdiction
by statute over crimes committed on land to
which it holds title within the Common-
wealth. Code § 7.1-21(1) (Repl. Vol.1973).?
Any additional jurisdiction over this land
can be relinquished only if the Common-
wealth executes a deed of cession, and the
deed must be formally accepted by the
United States. Code § 7.1-21 (Cum.Supp.
1978); 40 U.S.C.A. § 255 (1970). In light of
the cession by statute, it is presumed that
the Commonwealth retains concurrent jur-
isdiction over the area embracing the locus
of the crime. To hold otherwise, would be
defendant on appeal. Such issues will not be
noticed by this Court. Rule 5:21.
2. This paragraph of the statute was repealed by
Acts 1976, c. 211, but, by the same enactment,
a similar provision was incorporated in Code
§ 7.1-18.1 (Cum.Supp.1978).
all be paid on
nS provided by
ie
ne case is re-_
ngs not incon-
* #
1 in part and
ay ;
hat United is
n payment of
| and related
he exemption
) for tangible
ed to an air-
y such airline
common car-
2. Food and
rectly in the
1 carrier ser-
such s by
nge.. u ‘sale
id be exempt
§ 58-441.2(c).
’s contention
lirect burden
Therefore, I
holding that
shat food and
D exemption.
ority that all
perty in con-
used direct-
mon car-
nnot, in my
e principles
monwealth
Va. 155, 198
ed in Web-
partment of
S.E.2d 252
ly points out
ytion provid-
rlines paral-
58-441.6(h)
| of ible
lito _ stor
SMITH, Michael M., black, elec., Va. (James City) 7-31-1986,
SMITH v. COM. Va. 135
Cite as 248 S.E.2d 135
vehicle common carrier for use or consump-
tion “directly in the rendition of its public
service”. We narrowly construed the word
“directly” in the exemption provision of
Code § 58—-441.6(h) in Community Motor
Bus to include “only such essential tangible
personal property used immediately and
principally by a common carrier to keep its
motor vehicles on the road in performance
of its public service”. Id. 214 Va. at 159,
198 S.E.2d at 622. We also held that items
which are essential to operation of a busi-
ness but are not an immediate part of pub-
lic-utility service are not exempt and that
exemption is not provided merely because
the taxpayer is required by law to comply
with certain conditions. '
In Webster Brick, we noted that since
adoption of the 1971 Constitution we have
applied the mandate of strict construction
against taxpayers in all cases where exemp-
tions were sought under Code § 58-441.6;
we resolve any doubt against one claiming
the exemption; and we accord great weight
to the construction placed upon the statute
by a state official charged with its adminis-
tration.
While the majority opinion does not disa-
vow these guidelines and, indeed, restates
them with approval, its effect is to establish
a new and broader definition of “direct use”
applicable only to common carriers by air.
For example, in approving the exemption of
anti-hijacking surveillance equipment, the
majority recognizes that this equipment is
not per se exempt merely because it is
required by federal law. However, the ma-
jority goes on to hold that the “direct use”
exemption applies to this equipment be-
¢ause of the potential culpability of an air
carrier for failure to provide adequate pro-
tection against air piracy. This would seem
to extend the definition of “direct use” far
beyond that contemplated by Community
Bus,
The exemption of the highly sophisticated
electronic computer system known as
“Apollo” was also based upon its direct use
in the furnishing of air carrier service.
That some of the data furnished by the
Apollo system, such as weather informa-
tion, flight plans, fuel limitations, cruising
altitudes, and weight limits, are used direct-
ly in providing common carrier service is
not denied by the Department of Taxation.
But, insofar as the Apollo system comprises
reservation and ticketing equipment, the
Department contends, and I agree, that the
exemption should not apply. As to this
category I would remand the case for a
determination of the property not entitled
to exemption.
By the same reasoning I cannot agree
that aircraft passenger and baggage servic-
ing equipment, while useful and even essen-
tial in maintaining an airline’s competitive
marketing position, is used directly in the
rendering of common carrier service by air
under the guidelines heretofore approved
by us.
Although it is a very close question, I
concur in the majority view that under
§ 210 of the Airport and Airways Develop-
ment Act, effective July 1, 1970, the De-
partment of Taxation has jurisdiction to
impose sales and use taxes on United’s tan-
gible personal property at Washington Na-
tional Airport, except for fuels for aircraft
and items similar to fuels used in servicing
aircraft.
W
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T
Michael Marnell SMITH
v.
COMMONWEALTH of Virginia.
Record No. 780293.
Supreme Court of Virginia.
Oct. 6, 1978.
Defendant was convicted in the Circuit
Court, City of Williamsburg, County of
James City, Russell M. Carneal, J., of capi-
tal murder following rape and was sen-
ante
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injuries, fetal alcohol syndrome and
post-traumatic stress disorder from
child abuse.
Smith’s mental impairments, the
appeals form noted, made him irrational
and impulsive when he raped and
murdered Audrey Jean Weiler, and
had the jury known this, it might well
not have voted for the death penalty.
State prosecutors argued not only that
the electric chair was humane, but
that any change in the punishment
should be the job of the Legislature and
not the courts.
A spokesman for the District Attor-
ney’s Office said, “For punishment to
really be of any consequence, it should
be sure and certain and swift, I think
the slow, never-ending appeals process
is the cruel and unusual part of it.”
In the end, a federal appeals court
turned down the claims, saying they
were meritless and raised too late in
the court process.
Thus it was that on July 31, 1986,
Michael Smith was electrocuted with-
out a word. But not without a strug-
gle.
Before the execution, prison guards
had to physically subdue a defiant
Smith when he refused to get off the
BACK FOR MORE
BARKING COP.
floor of his cell to be handcuffed for
the move to a holding cell next to the
execution chamber.
Authorities said they found makeshift
weapons in Smith’s cell, including a
piece of metal that was being honed
into a blade.
He was carried to the electric chair,
strapped in, and a black hood placed
over his face. Shortly past midnight
2,000 volts of electricity went surging
through his body. This process had to
be done three times before he was of-
ficially pronounced dead.
“Justice was a long time in com-
ing,” one of Mrs. Weiler’s brothers said.
“If anyone deserved the death penal-
ty, it was Michael Smith.” *
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TOTETPEL SELL STEER EPS POT PETES eee E
eyteeet
136 Va.
tenced to death, and he appealed. The Su-
preme Court, Poff, J., held that: (1) trial
court had jurisdiction over crime committed
on United States property; (2) there was no
abuse of discretion in trial court’s refusal of
change of venue; (3) juror was not improp-
erly excluded because of her predisposition
against capital punishment; (4) evidence of
victim’s reputation was inadmissible since
defense of consent had not been advanced;
(5) instruction on rape was proper; (6) ad-
mission of photographs of victim’s body was
not improper; (7) victim’s daughter’s testi-
mony was not inflammatory; (8) waiver of
rights by defendant was voluntary and his
confession was admissible; (9) evidence of
defendant’s prior crime was admissible to
show motive, intent, and premeditation;
(10) 1975 death penalty provisions were pre-
sumptively valid and 1977 law which be-
came effective after crime and under which
defendant was sentenced was ameliorative
and did not constitute ex post facto legisla-
tion; (11) death penalty provisions were not
facially unconstitutional under the Eighth
and Fourteenth Amendments; (12) jury in-
struction during penalty trial was not im-
proper; (13) Commonwealth was properly
permitted to make rebuttal argument in
penalty trial, and (14) death penalty was
not a product of passion and was not exces-
sive.
Affirmed.
1. United States <3
Mere ownership of land by the United
States does not divest a state of jurisdiction
over that land, and nature and extent of
federal jurisdiction is dependent upon con-
sent of state.
2. United States 3
Presumption prevails that state has
jurisdiction over land which is owned by the
United States unless defendant shows that
United States was deeded land and accept-
ed exclusive jurisdiction over it. Code 1950,
§§ 7.1-18.1, 7.1-21; § 7.1-21(1), Acts 1972,
ce. 597; 40 U.S.C.A. § 255.
248 SOUTH EASTERN REPORTER, 2d SERIES
3. Criminal Law = 134(4)
In prosecution for capital murder fol-
lowing rape, defendant failed to show that
he could not and did not receive fair trial in
jurisdictiag in which he was convicted based
on extensive publicity which crime received.
4, Jury e108
Veniremen may not constitutionally be
excluded for cause simply because they
voice general objections to death penalty or
express conscientious or religious scruples
against its infliction, and exclusion of a
single venireman for such cause renders
death penalty constitutionally infirm.
5. Jury 108
Whether exclusion of juror because of
predisposition against death penalty is jus-
tified is a mixed question of law and fact.
6. Criminal Law ¢1158(3)
Trial judge’s finding as to whether jur-
or may properly be excluded because of
predisposition against death penalty will
not be disturbed on appeal unless, upon
consideration of voir dire as a whole, re-
viewing court can say that veniremen’s
commitment against death penalty was not
“unmistakably clear.” :
7. Jury 108
Even though prospective juror agreed
that capital punishment might “possibly” be
appropriate in some cases, trial court’s find-
ing that juror should be excluded because
of her predisposition against capital punish-
ment was not improper where juror stated
positively and with no ambiguity, equivoca-
tion, or reservation whatsoever, that she
could never, under any circumstances, vote
to impose death penalty. Code 1950,
§§ 18.2-10(a), 18.2-31(e).
8. Rape <=40(1)
Whether evidence relevant to rape vic-
tim’s reputation is admissible is an eviden-
tiary question and depends upon whether
defense of consent has been advanced.
9. Rape e=9
Defense of consent is not advanced
solely by plea of not guilty to rape.
snentnacnsestntios ants ua
|
SMITH vy. COM. Va. 137
Cite as 248 S.E.2d 135
10. Rape @51(4)
Defense of consent to rape can be ad-
vanced only by evidence adduced by one of
the parties.
11. Rape ¢40(1)
Whether evidence of consent is suffi-
cient for purpose of allowing reputation
evidence of rape victim is a question of law.
12. Homicide = 163(2)
In prosecution for capital murder fol-
lowing rape, trial court correctly ruled as a
matter of law that defense of consent had
not been advanced by defendant and that
evidence defendant proffered concerning
victim’s reputation was inadmissible. Code
1950, § 18.2-81(e).
13. Homicide e289
In prosecution for capital murder fol-
lowing rape, instruction to jury that Com-
monwealth was required to prove that in-
tercourse with decedent was accomplished
“against her will, by force” was not improp-
er. Code 1950, § 18.2-61.
14. Criminal Law ¢438(1)
Admissibility of photographs is a mat-
ter within sound discretion of trial court.
15. Criminal Law ¢=438(1)
There is no abuse of discretion in ad-
mitting photographs which are relevant and
material to establish premeditation and
malice and to show degree and atrocious-
ness of crime.
16. Criminal Law ¢438(5)
In prosecution for capital murder fol-
lowing rape, photographs depicting contu-
sions about victim’s neck, abrasions on her
back, and multiple stab wounds in her body
were relevant and material, were not in-
flammatory, and were properly admitted.
Code 1950, § 18.2-31(e).
17. Criminal Law @338(3)
Background events, though not directly
relevant to question of guilt, are material to
fact finder’s understanding of crime, ‘and
for that purpose courts are allowed con-
siderable leeway in allowing testimonial
narrative.
18. Criminal Law @=338(3)
In prosecution for capital murder fol-
lowing rape, admission of testimony of vic-
tim’s daughter which supplemented testi-
monial narrative of sequence of events pre-
ceding and following commission of crime
was not improper. Code 1950, § 18.2-1(e).
19. Criminal Law @412.2(2)
Miranda applies only where there is a
custodial interrogation.
20. Criminal Law <412.2(2)
Fact that investigation has focused
upon suspect and has become accusatory is
not determinative of question of custody
for Miranda purposes.
21. Criminal Law ¢=412.2(2)
In prosecution for capital murder fol-
lowing rape, trial court’s ruling that de-
fendant’s inculpatory statements were not
the product of a custodial interrogation was
not error.
22. Criminal Law ¢=517.2(2)
Defendant’s waiver of rights before
making inculpatory statement was volun-
tary and trial court did not err in admitting
his confession in prosecution for capital
murder following rape.
23. Criminal Law ¢=369.1
Generally, evidence of prior crimes is
incompetent because it confuses issue be-
fore jury, unfairly surprises accused with
charge he is not prepared to meet, and
tends to prejudice him in minds of jury.
24. Criminal Law ¢=371(4, 12)
Where defendant freely admitted that
his reason for killing woman he had raped
was to silence his accusor because he was
afraid she could send him back to the peni-
tentiary, admission of evidence of defend-
ant’s prior crime was fully competent to
show motive, intent, and premeditation.
25. Criminal Law 1213
Virginia’s 1975 death penalty statute
was presumptively valid in spite of United
States Supreme Court decisions attacking
the constitutionality of other death penalty
statutes and 1977 law amending the death
=
SS RI RO SR RE Se aR
a ee IRS ne
156 Va.
APPENDIX B—Continued
case it is, or how bad the case is, I absolute-
ly could not impose it. You’re saying you
possibly could, is that correct?
A. Yes.
[BY MR. PERSON:]
Q. So you are saying no matter how
difficult it might be and no matter how
painful it might be and no matter who
might criticize you, that under certain facts
and under certain circumstances, that you
eould in a proper case, if the Common-
wealth proved its case beyond a reasonable
doubt, and this is when you have the choice
between life imprisonment and death—
248 SOUTH EASTERN REPORTER, 2d SERIES
A. Yes.
Q. Under those situations you could vote
that the Defendant would get the death
penalty, is that correct?
A. I thought I said lifetime.
Q. So you’re absolutely against the
death penalty, is that correct?
A. Yes.
Ww
° g KEYNUMBER SYSTEM
T
Alimony, +
Before Judge
James R. V
James V. |
pellee. |
NICHOLS
This is an
band in a di
case. The
rors, but t
statement 0
the trial co
rors are d
18(c)(2) of tk
Judgment
All the Ju
SEABOAR
UNION C:
is ‘ | Supr
D
Certiorari
Georgia—14!
(1978).
SPENCER, Ayex, hange in Halifax County, Virginia, April 10, 1903.
"Houston, Vaey April 10, = Alex Spencer, convicted of the murder of Mrs. Wilbourne
at the February term of the County Court of Halifax, paid the penalty of his crime
today between 10 and 11 o'clock, The execution passed off quietly. While quite a
crowd, both white and colored, came into town early this morning to see the hanging,
there wap no disturbance, The execution took place in an unused warehouse, seclu-
ded from theérvation. Many crowded the doors, anxious to witness the execution, but
Sheriff Thomas R, Jordan only admitted his assistants, the doctors, the colored ministers,
Albert Smith and Hallory, and limited the mmber of witnesses to those prescribed
by lawe After prayer and singing by the ministers, the prisoner offered a fervent
prayer himself, admitting his guilt, but denied the criminal assault, The trap was
sprung by Sheriff Jordan at 10:30, The neck was not broken and the condemned man
hung for nearly half an hour before death was pronounced by Doctors Melvin, Booker,
Gunn and Smiley. The body was shipped to the University of Virginia by Southern
train from South Boston this evening,'' TIMES@DISPATCH, Richmond, Virgihia, April
ll, 1903 (6224)
"Lynchburg, Vaey Febe 2. = Alexander Spencer, the eighteen<year-old negro boy who
murdered Mrs, Sallie H. Wilborn of Alchie, Halifax County, early this month, and was
brought here for safe-keeping, was this afternoon taken to Halifax Courthouse over
the Lynchburg and Durham road by Sheriff Jordan and two deputies, The negro was
indicted for the murder by the grand jury yesterday and his trial will begin to-
morrowe Some time ago the negro confessed that he attacked and struck Mrs, Wilborn
thinking that she had money in the house. Mrs. Wilborn, who was fifty years of
age, had her skull fractured by the negro and died a day or so later," TIMES~DISPATCH,
Richmond, Virginia, February 25, 1903 (12=l.) | |
"(Special to the Times Dispatch) February 3, Houston, Va. = Mrs. Sallie Wilbon, the
wife of Thomas Wilbon, who lives near Archie, in the northern part of Halifax county
was attacked yesterday evening by a negro, She was terribly wounded about the head
with an axe. Little or no hope is entertained of her recovery. A negro boy named
Spencer, 18 years of age, who had worked for Mr. Wilbon, was suspected. A warrant
was issued for his arrest, but he had fled. A posse was quickly formed and the negro was
caught and identified. It is believed that he will be lynched, The boy thought
that the Wilboms had money concealed about the house, This is believed to have
been the motive for the crime." TIMES-DISPATCH, Rschmond, Vas, Febe hy 1903 (3=2.)
6/. Bedherd Coun Woe Look
SLA VE PIE 7 284A -17E3
Thomas Scruggs compensated 130 pounds for slave
executed in Bedford Co., Va., on August 2, 1787.
State Reocrds and Archives of Virginia, Box l,
Item 153, Envelope 4,
ldentted as ‘Wegro Sulor’. Executed on §/30/83
for ype of Anne Crump. Note that you are
carmyhg a Comp. date as The ex. daite..
/ | ad,
Y alptasy Auue & cad foe Negnw Sailor h (783, Thik Ca
ithe owes cts th ag wu He Oeme Ook. |
A
One Sfty After anther while these punts were
tavestigated and argued tn extenso. And the
patience of bette Southampton Court and populace
jit progressivtly Sorter witls ach rypritve.
Me trst break in the Cast cam on t-A9-/800 when
Jerry wis gutted a parcon on ? $f tupe0 of jdlocy.
She Ctrk of the County Gurt annplained bitterly
About t+ in a remoustrasncc fo the Gov. But whin
tis OF the pation Wits tenadt public, A tot
broke out it te County Stat. An angry mob
Carried an tthiqgy OF the Govervor around te
foun, faded 1 with every smtginable asult,
and hing (4. on te local gallows. (The extreme
Scorn Which this Last mentioned act Conyeyed 13
fot téadily typreeiated by 40th century standards ;
Mt Wits at FEY abominable sits,
Ine Sovermor was promptly tntormed by Special
messtiger Vaapt lyrachring was Jowmiment tor the
prisoners and 5o made aste 2 place the Satth-
Anyton fall tinder military guard.
With this, the Courtty authorities retaliaked
by Shujgwing the prisoners raed and forcing then
eadure The remainder of the winter with rtitrar
heat ror Clothing. Dty were abo ted on bread and
Witter. Lye Of the prisons, (Shac, dred Hf Ex-
sure under Phese condi tins.
Nis J Old Stun’ and 'fsaac the Hatter who
Wire typtiwed Unt April he Mth 1800, 00 whith
day yet another reprieve arrived but which Was
Found 1b Compare ans error that opened a Jogppole
tor the County. She sew reprieve was taade out
ta the taomes OF “aac” wd Vsade the fatfer’
by mistke CR snsfead of the names of Yd
ln’ alto “[saac the Matter’ as 1+ Spould have beer
ae D.
She ripriive wmispahinly sumed the deceased fiaee
Ishead of the pendling ‘Old Sam:
Sis trror leh Old Stem without /epel protection
at least top the mach And the Comfy tustbparibies
Sowmpediaze/y Stked upon the chance To furry Pain
to the gallows and hang biter highs, (The execution,
Tonugh trregular, wes Sti Segal).
ha a lthter 0 foe Gov. writlers 01 the Stivee
chy, (411-1800), the Uerk of the Court Sheyptohhy
exolained that they were Constrained by lin 7o
Wow the Gov. 5 aspructons 70 THE LETTER
Ad had 10 autoarity fo after the event i they
hth better. to eect te Sato that the Gov.
Could blime hast f ard the carefess10ss oF bys.
legal Stal? tor the txtcution of Of Sat. The
Subhemplon Court Clerk also explained, (ia
what Wes Wmpst certtinfy a face-Saving Me), that
the reprieve arrived wher he was Lop At home
to réctive tt and was Signed tor by hus young
S01, who did not pecogaize the Error which
lt contained.
Qne wonders who totgrined the sherrit Ltt
he wis tnever the 133 SAM Teguired 7o preserve
toe like of fstac the flatter tard r104 that of
Dla Stitt
{saac the Hatter, the [Ast remaining de-
fenint OF the original four, remmaiss ats Cat ging
as ty Ms Ultimate fare.
‘Ss
Case of Serry, (Shae,
trance the fall and Wd Sam.
Stuthanphoy Chunty
!779
CAA JERRY and sine ERRORS ; \
ov » JERRY and SAM Beware }
ore) em
Slaves, hanged Southampton County, Vaey 11-25-1799,
Sse, HATTER
RWLITT
See worksheet - Virginia - MU - Bound,
4rchives of Virginia - Auditor's Records, Box
e, Item 153, 1802 Envelope states that Isaac
was condemned on 10-25-1799 and valued at $316
but was not hanged as he died in Jail before
execution,
Do., envelope X¥8% 1798, Box 1, States Old Sam
and Hatter Isaac tried with Sam being valued
at pe60 and Hatter Isauc at $316,
Slaves SALVADOR and SCIPIO, hanged Surry Co., Va., April, 1710,
Ltr. dtd. h-23-1985 from Philip Schwartz, Virginia Commonwealth Univ¥er-
sity, Richmdnd, Va., states that Satvadore was the proverty of Jonathan
Jackmans and Scipiowas the property of William Edwards. He states that
they were hanged in Avril, 1710.
",..eWhen a conspiracy was discovered among the slaves of Surry and James
City counties in 1710, two or three only were executed. 'I hope,! wrote
Colonel Jennings, ‘their fate will strike such terror inthe other Ne-
groes as will keep them from forming such designs for the future."..e"
A HISTORY OF AMERICAN LIFE, Volume II, THE FIRST AMERICANS, by Thomas
Jéfferson Wartenbaker; New York, MacMillan Company, 1927, page 21h;
His Source: C. 0, #ZEEZ 5, 1365 and 1063 (Brit. Pub. Rec. Office),
189-192 e
"..eIn Surry Co., (Va.), in 171 0, two slaves had plotted a rebellion;
one was an Indian named Salvador, the other a negro named Scipio,
both were charged accordingly. As punishment the following was or-
fered: 'Salvador to be hanged and his body disposed of viz, his head
to be delivered to the sheriff of James City County and by him sett up
at the city of Williamsburg. Two of his quarters likewise delivered to
the sd. Sheriff of New Kent County be sett up in the most publick
place of the said County, and the other two quarters to be disposed of
and sett up as the Justices of the County of Surrey shall think fit to
direct,' The body of the other slave, Scipio, was to be disposed of in
Gloucester, Lancaster, Kent and Queen Counties," ",..HANG BY THRE NECK
eee’ By Teeters and Hedblom, pp 95-96.
See also: CRIMINAL LAW IN COLONIAL VIRGINIA, by Arthur Schott, filed in
derk blue binder, pvp 161-162,
SLAVE
ROBERT ARMISTEAD was compensated on 12/20/1786
for 139lbs for slave executed in Chesterfield
County, Virginia, probably on July 4, 1785.
State Archives, Box 1, Item 153, Env. 4,
Slave SAM
Sam property of Robert Armistead, sentenced in Ches-
terfield County, Vas, on July 4, 1785. Sheriff Attests
his execution, 130 Lbs.
One of first four envelopes, Box 1, Item 153, State
e Auditor's Files, State Library Aychives, Richmond, Va.
; -Ao0 Chestertreld Ci Orler Book
| fie 199-00 Cherhrtild Cnty ee OK og
Executed on 7/ 15/385 for murder of Nesyo
Jacob, slave of John Tabb E39.
Slave SAM, hang |
nAM, hanged Monterey, Va., 9-26-1856
dv 9 zi —~ LO °
Deoanrmn, Error :
peretreree’ IAA OA on prcte afore Qecck,
So. Qo FA BRIAR pee Jue ee
og Dam of kis nw’ ov. of 2a inn
g Dosy
OER, Le PBL ro. &
Ovettrus, ODA Sa Rin & So Or 4 7 me
Pat eae as
A,
G00 Oop te the Viton ate, Ms
Bad AmpomwialiioneSes te. Ming Bea 0.
Pe dyictlie SUR Her Sakae ths hain
Rarer Gren de Sheridaur an Vrertery
Gs Ke eeO “atte Rey Nie Qrondmrothix
Lo aL tohewm YW Shrudierr Alor WL
Bon of Khe Lwo of JS-e ~erdier C
2 i 4, au Qrouwe ON, irherwedion OV Wu
Picrere eCey ee et
; nance = I>
# nr cQ : ark
es ; ae xe dy Qn fod. i
(
Le} on.tatro
ag. 4 Soe PA
Pawel,
Sonne, f Qonesse ‘ae See
4 a ont O Ee NI ee
[0-4-2 A aQeaak VC -ANG OF
Rs. wee ¢ Thonn
~~
SLAVEs TONEY and SAMSON
Aslave was hanged 31707, in Westmore~
land County, Va., for burglary/stealinge Schwartz. Hi
source: Westmoreland eh ahop ie Book, 1705-1721, 32ab
50 Kile o out ths ether. Ste Corrected Carel
tor Sack pseu ips
According to me dtd, 4-23-1985 from Scwhartz, there were
actually two slaves hanged, Toney & SXXXH Samson, and the
correct county was Essex; Gives as source OB, 1703-1708,
Owners names not given, Also gives crime as js a
ted felony, This 1s a list of Essex County é. fll
hyp 10-10-1707. 1t grves lata that Toney and Si anion | er
wh W1ois at Fiscataway err fog be Maras
JO Yor offence must have. be6n of an aygravefed nahtre a
Sheerit william Eamlin 's Allgwed #100 pounds of fobacto
for executing and gibbetiity thems. And Thomas Newmar is
allowed 300 tyr pnakily The gt bbeTs
Savino says his Va. execut
P. Kevin Morley/The Richmond News Leader
“1d rather get it over with,” says Joseph
Savino Jr.
By Jim Mason .- aa
News Leader staff writer . oe
Joseph Savino Jr., scheduled to die in Virgin-
ia’s electric chair in six days, says he prefers
being “murdered” to being “tortured and then
murdered” by the state.
“They may call it an execution, but to me, it’s
murder,” he said of the death sentence he re-
ceived for killing and robbing his homosexual
lover and benefactor in the victim’s Bedford
County estate home in 1988.
But an appeal would mean continuing a “tor-
tured” life on Virginia’s death row for several
more years only to end up being “murdered”
anyhow, Savino, 31, said during an interview
yesterday at the prison. .
“I’d rather get it over with,” he added.
Savino, who has neatly trimmed black hair and
a mustache, wore a white jumpsuit and talked on
a telephone from behind a plexiglass window ina
State Penitentiary basement room not far from
the electric chair.
A half-hour earlier, two lawyers had met with
him and tried to talk him into appealing his case,
but Savino refused.
An appeal would be “just grasping at straws
and prolonging the inevitable,” he said.
- _ “This whole situation is just too horrible for me
to live with,” he said of his feelings of “isolation”
and the “indifference” of the guards on death row
ion ‘murder’
at Mecklenburg Correctional Center. “They look .
at us as just state property to be disposed of.”
In contrast, Savino said, he sympathizes with
his guards at the Penitentiary. Their job is to see
that he is killed “in society’s name.”
“Even if you hate me, what you are putting
these people,(guards) through is not right,” he
said. “I’ve been trying to keep their spirits up.
One of the guys is only 21 years old.
. “It’s a horrible job. I've killed someone. I know
it’s horrible.” - =
Savino expressed remorse for having killed
Thomas McWaters, 64. ge
“What I did was wrong, too — extremely
wrong,” he said. “I had no right to take that man’s
life. That’s one of the hardest things I’ve had to
live with.”
During his Bedford Circuit Court trial in April
1989, Savino said he killed MeWaters the night of
Nov. 29, 1988, while in a cocaine-induced craze
because the older man repeatedly demanded sex.
McWaters was beaten with a hammer and
stabbed with two butcher knives in an upstairs
bedroom of his estate home, according to police.
Savino said he had come to Virginia to live
with McWaters in February 1988. That was after
he won parole and had served prison time in New
York state for robbery. - 3 ;
Savino said he now regrets pleading guilty to
CO See Savino, Page 4
Richuevd News LEADER
Sf.
y
\
Prison Asked to Let
Men Preserve Sperm
By Avis Thomas-Lester
Washington Post Staff Writer
Joseph Roger O’Dell Il said he
sits in his cell on Virginia’s death
row and cries when he sees “cute
little. babies” in Huggies television
commercials.
“It just breaks my heart, knowing I
might.never have one,” said O'Dell, -.
unmarried and childless at 49.
But, if O’Dell has his way, he
could become a father after all—al-
beit not in the usual way. Facing the
electric chair forthe rape and mur-
der of a Virginia Beach secretary in
1985, O’Dell has requested, along
with a fellow death row inmate, that
their sperm be frozen before their
executions and used to inseminate
their girlfriends afterward.
O'Dell, of Roanoke, who has no
siblings, argues that because his
execution will end his bloodline, not
allowing him to have his sperm fro-
zen constitutes cruel and unusual
punishment.
The request is one of the strang-
est ever made of prison officials, in
Virginia or elsewhere, corrections
specialists say, and so far Virginia
officials aren’t quite sure what to do
about it.
Q’Dell also asked the Virginia
Supreme Court to order prison of-
BY
“They have no right to destroy my bloodline,” Joseph Roger O'Dell III says.
ficials to allow him and Joseph Sa-
vino, 32, to preserve their sperm.
The request was denied on the
grounds that it was “frivolous,” but
prison officials are still considering
it. He has appealed to the U.S. Su-
preme Court.
“It is my constitutional right to
have children,” a shackled and hand-
cuffed O’Dell said at Mecklenburg
prison recently. “They have the le-
ANORE CHUNG—THE WASHINGTON Post
gal right to kill me, but they have
no right to destroy my bloodline.”.
His girlfriend, Sheryl, who asked
that her last name not be used, is an
insurance adjuster in Virginia Beach.
She said she has not yet reconciled
herself with being inseminated with:
O’Dell’s sperm, but she has given
permission to be named as the legal
recipient.
See INMATES, B4, Col. 1
i
B4 Sunpay, Aucust 18, 1991 Wash, Po sc
Inmates Want Girlfriends
Artificially Inseminated —
After Men’s Executions |
INMATES, From B1
“We love each other, and we
should have the right to have a child
together,” Sheryl said. “I don’t want
to lose the opportunity just because
they take his life.”
Savino was sentenced to death in
1988 after he pleaded guilty in Bed-
ford County to hammering to death
his 64-year-old male lover. He said
he and his present girlfriend began
discussing parenthood earlier this
year and he approached O’Dell for
advice because of his reputation as
a jailhouse lawyer.
“This. is something that I just
want to do,” he said.
One of the potential sticking
points with state officials is the
cost, which is likely to run into the
thousands of dollars, because the
two men want to provide sperm
samples when their execution dates
are set and have their girlfriends
inseminated after their executions,
which could be years later.
Prison officials said it is not likely
they will approve the procedure
unless the men can pay for it.
O’Dell hopes that he can get the
money contributed or that Atlanta
Xytex Corp., the sperm bank to
which he has written, will donate its
services. —
Xytex spokesman Ed Selby said
three:samples of semen are stored
by the company for $400 a year.
The company suggests having a
doctor perform the procedure, but
there also-is a $165 portable kit
that: men can use to take their own
specimens, he said.
Selby said he believes O’Dell’s
request is the first by a death row
inmate;
Usually clients are terminally ill
or men considering vasectomy,
Selby said.
But, Selby said, there is no rea-
son the procedure should not be
done on a prisoner.
“If he pays for it, I don’t care,”
Selby said. “We are not in the po-
sition to make judgments on the
character of our .. . patients. If it
was Charles Manson who wanted to
store his semen, I’m sure we would
do it. I’m sure no one would want to
handle it, but we would do it.”
W.P. Rogers, Department of Cor-
rections administrator for Virginia,
where 45 death row inmates reside,
said he has referred the inmates’
request to the department’s chief
physician, Bavlir Kapil. “Obviously
this is new ground” that will take
some investigation before a deci
sion is made, Rogers said.
Rogers said prison officials must
examine whether they can legally
permit such a request and whether |
security would be affected by allow-
ing the materials needed to perform
the procedure into the facility.
Rogers said prison officials at-_
tempt to satisfy “reasonable re-
quests” from inmates, but that he
would not approve the procedure,
which he believes may be an elab-
orate publicity stunt, if O’Dell and
Savino cannot pay for it.
O’Dell, who made headlines when
he defended himself in his capital
murder trial in 1986, admitted that
the publicity value influenced his:
decision to make the request.
O’Dell denies murdering Helen
Schartner, whose bludgeoned body
was found in a muddy field behind a
nightclub he frequented, but he ad-
mits to many other scrapes with the
law, beginning with an assault and
battery conviction when he was 16.
He has spent almost 30 years in
prison for assault, armed robbery,
second-degree murder and larceny:
convictions, records show.
“I have lived a wild life,” O’Dell
said. “When I hear the song ‘Born to
Be Wild,’ I think about me. My
whole life has been one skirmish:
with the law.”
He filed a motion for a new trial
with the Virginia Supreme Court.
- That was denied. He intends to ap-
peal to the U.S. Supreme Court.
A ruling on Savino’s appeal of his
death sentence is not expected for
at least three years.
Meanwhile, O’Dell and Sheryl
court over the telephone, often run-
ning up hundreds of dollars worth of
calls each month. They once spent:
13 hours on the telephone discuss-
ing baby names. If they have a son,
Sheryl may name him Josh, O’Dell
said, “J-O for Joseph and S-H for
Sheryl.”
Savino
oO Continued from Page 1
capital murder and robbery charges in the Bed-
ford case. aoe
- For one thing, he said, he didn’t intend to rob
McWaters after killing him. “If my intention had
been robbery, why would I leave him the way I
did?” Savino said. ;
“Hindsight is 20-20. At the time my lawyer and
to die. His case was appealed automatically to
the Virginia Supreme Court: s
In April, the state high court affirmed Savino’s
" gentence. .
After killing McWaters, Savino took about $100
from - McWaters’
where he bought cocain
wallet and went
ine, the Supreme Court saids —
in regard to the robbery charge.
Savino was arres
McWaters’ murder.
Now, he said, his fate illustra
to Roanoke,
in Roanoke the day after
tes the unfairness —
of the death penalty, how some murderers are
put to death in the name
not.
of society but others are
His father, Jose h Savino Sr., told him recently
of a similar case in
men involved with
dering another man.
One of the defendants
New York state in which two
drugs were convicted of mur-
received a sentence of 25
sentence of five to 15
years, Savino said. New York does not have the
death penalty.
Savino’s father said yesterday he plans to urge
sentence. Family members plan
“For a while,
this weekend to appeal his death
a no-contact
tholic family of
Italian descent in Mount Vernon, N.Y.
‘God, put not
because I didn’t believe He existed,” he said.
“J was pretty emotionally destroyed”
murdering McWaters, he said.
One good thing he could do, he decided, was to
- speak out against the death penalty. —
If he was wrong to kill McWaters, it is just as
wrong for Virginia to kill him, Savino said.
“whenever you kill someone, it’s murder. ...
As far as 'm concerned, being a Christian, it’s
murder: . . -
“J find it amazing. I’m here in the Bible Belt,
and people want vengeance. But God said, “Ven-
geance is not yours. Vengeance is mine.’
«phe death penalty is wrong. And the other
thing I’m trying to do is to urge people not to use
drugs. Drug abuse only leads to a life of misery.
miserable — or where I’m at.
As Savino stood to return to his death chamber
cell, he said, “God bless you.”
-”
602
S.E. 673, 675-76 (1923). Even in the face of
evidence of extreme intoxication from alcohol
or drugs, the factfinder may find willfulness,
premeditation and deliberation jf there is
proof that the defendant was “in full control
of his faculties and knew exactly what he
intended to do.” Fitzgerald, 292 S.E.2d at
807; see also Johnson, 115 S.B. at 675.
{14] We do not believe that Savino could
have presented a viable intoxication defense.
Although Savino admitted he had used co-
caine on. the night of the murder and a
defense expert concluded that he was suffer-
ing from a cocaine-linked psychosis and pos-
sibly delusions at. the time of the killing, the
evidence is more than sufficient to show pre-
meditation. Savino has offered no proof that
cocaine made him incapable of deliberation or
that he did not intend to kill.
Savino’s statements to police reveal the
actions of a person who, although possibly
“high,” was thinking in a logical, deliberate
and evil manner. He admitted that he had
discussed with a friend the idea. of killing
MeWaters and even a possible method:
strangulation with a phone cord. Savino ex-
plained that he sat downstairs. contemplating
the murder before he actually committed it.
Then, he got a hammer, went upstairs, beat
McWaters, returned downstairs for knives,
and stabbed McWaters until he was dead.
Savino told police that he knew that it was
risky to use the telephone ‘at the house after
the killing, so he decided to use a pay phone.
Finally, Savino seemed to display complete
and clear recall of the events when recount-
ing the killing to police and to defense coun-
Sel.
Savino’s attorneys testified that they con-
sidered his conduct before and around the
time of the killing and researched the extent
of intoxication necessary to preclude premed-
itation in Virginia. They concluded that the
Commonwealth could prove that premedita-
tion had been present and that Savino’s de-
liberate acts before, during and after the
murder demonstrated no inability to know
right from wrong or to make a deliberate
decision. Again, we conclude that, in light of
the facts before them, the attorneys’ decision
was consistent with controlling Virginia law
and constitutionally sufficient.
82 FEDERAL REPORTER, 3d SERIES
Because the record so clearly indicates
that Savino’s attorneys investigated possible
defenses, made Strategic choices, and then
rendered advice and representation consis-
tent with both controlling law and the cir
cumstances of the case, we agree with the
district court that there has been no showing
of deficiency. There is, therefore, no need to
determine whether Savino was prejudiced by
counsel’s conduct.
B. Guilty Plea
Savino next complains that the trial court
violated his Fourteenth Amendment rights
by accepting his guilty plea: without affirma-
tively establishing on the record that the plea
was knowing and voluntary. -We agree with
the Commonwealth that the claim is both
procedurally defaulted and without merit. - _
[15, 16] Under Virginia law, trial errors
that could have been but were not presented
on direct appeal may not be raised in habeas
corpus. proceedings. Slayton v. Parrigan,
215 Va. 27, 205 S.E.24 680, 682 (1974), cert
denied sub nom.,; 419 US. 1108, 95 S.Ct. 780,
42 L.Ed.2d 804 (1975). Such claims are also
barred on federal habeas review. Harris v.
Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042—
43, 103 L.Ed.2d 308 (1989);. Wainwright v.
Sykes, 433 U.S. 72, 87, 97. S.Ct. 2497, 2506-
07, 53 L.Ed.2d 594 (1977). Only when the
petitioner shows “cause for the default and
actual prejudice as a result of the alleged
violation of federal law, or demonstrates that
failure to consider the claims will result in a
fundamental miscarriage of justice,” may the
federal habeas court consider the challenge.
Coleman v. Thompson, 501 ba ye vd 750, 111
S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991);
Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43.
Savino alleges a trial court error of the
sort barred by Slayton and Dodson. He
argues, however, that his claim should be
considered on the merits because it is akin to
an ineffective assistance of counsel claim
which could not have been raised on direct
appeal. The comparison fails, however. The
error was allegedly committed by the court,
not counsel, and thus Savino’s attorneys
would not have had to concede ineffective-
ness in order to present the challenge. Savi-
. meritorious.
no’s own argument that the
from the transcript of the
further demonstrates that
have been raised on direct
Savino failed to present th
appeal when he could-have «
habeas court found the cl
defaulted under Slayton.
preme Court then refuse
claim. as procedurally defa
closing-federal court review
its progeny. See Coleman,
111 S.Ct. at 2565 (the proc
considered an adequate <
state ground - that: foreclose
claim in federal court); Bun
949. F.2d 1354, 1363 (4th Ci
Savino has shown. neither “¢
udice” for his default nor.
mental miscarriage of justi
cluded: from considering - hi
merits.
[17; 18} Even if .we.'did
stance. of Savino’s..claim. a
novo, see Marshall v. Lonl
422, 431, 103 S.Ct. 843, 849,
(1983) (stating. that voluntari
a mixed question of law and
for de novo review), we. wi
The record ind
no was adequately informec
and the consequences of his ;
fore taking the plea, the trial
the memorandum of underst:
in open court. The judge
Savino read and understood
dum, then signed it with full
response to the judge’s quest
clared that his plea was free
The colloquy, coupled with t
the memorandum, more the
concerns articulated in Boyk
395 U.S. 238, 243-44, 89 S.Ct
23 L.Ed.2d 274 (1969) (findi
may not presume from a <¢
waiver of constitutional rig
with a not guilty plea, but mi
thorough, on-the-record inqui
that the defendant voluntar:
standingly enters his guilty ;
Wade v. Coiner, 468 F.2d 1
Cir.1972) (holding that a st:
satisfy Boykin concerns by er
SAVINO
Cite as 82 F.3d
2. Robbery Predicate Challenge
Savino also contends that counsel provided
poor representation by failing to challenge
the robbery predicate to the capital murder
charge. We disagree.
[10] Under Virginia law, murder in the
commission of a robbery is “a killing which
takes place before, during, or after the rob-
bery and is so closely related thereto in time,
Place, and causal connection as to make the
killing part of the same criminal enterprise
S.Ct. 1591, 118 L:Ed.2d 308 (1992); see also
Harward v. Virginia, 229 Va. 363, 330 S.E.2d
89, 91. (1985) (explaining that the language
“during the commission of” in § 18.2-31 can
include a killing before,. during or after the
robbery in Virginia. George, 411 S.B.2d at
21. To prove a defendant guilty, ‘the prose-
cution must show that the murder and the
robbery “were interdependent objects ‘of a
common criminal’ design.” | Quesinberry »v.
Virginia, 241 Va. 364, 402'S.E2d 218, 224,
cert. denied, 502 U'S. 834, 112 $.Ct 113, 116
L.Ed2d 82 (1991). ‘The fact ‘that stealing
occurs after the ‘killing’ does not prove that
the decision to steal was an afterthought and
the two crimes were unrelated. Whitley v.
Virginia, 223 Va. 66, 286 S.E:2d 162, 166-67,
cert. denied, 459 US. 882,103 S.Ct. 181,74
L.Ed.2d 148 (1982).
{11] Based on the evidence before us, a
reasonable person could find. that Savino
committed’ robbery in ‘connection with
McWaters’s murder. The record shows that
Savino was in possession of MeWaters’s wal-
let when he was arrested. He admitted that
he took McWaters’s cash immediately after
the murder and that he stole jewelry and
other Property belonging to the victim when
he returned to the house later that night.
He also told police that he had been planning
to murder McWaters and. then to escape with
a friend to “South America ‘or Mexico -or
something like that” afterward. - Although
there was some evidence that the plan never
existed, a reasonable person could find the
v. MURRAY 601
593 (4th Cir. 1996)
Scheme linked to Savino’s theft of McWa-
ters’s money and jewelry. In addition, be-
cause Savino also told police, “all I wanted is
the cocaine,” the Commonwealth could have
Succeeded in arguing that Savino’s drug hab-
it-induced both the killing and the robbery.
Either theory would Satisfy the capital mur-
der requirement that robbery was a motive
that existed at the time of the killing.
Savino’s attorneys testified that they knew
the state of. Virginia ‘law. regarding capital
murder during the commission of a robbery
at: the time they handled Savino’s case.
They stated: that they. considered the evi-
dence against. Savino and the possible: prose-
cution: arguments, ° The attorneys discussed
the matter: with Savino, among themselves,
and-with experts at: the: Washington & Lee
Capital Litigation ‘Project: Based on ‘the
information ‘before. them and the i
ments of Virginia law, we find that the attor-
neys had sufficient reason to conclude that
there was little chance of defeating the: Com-
monwealth’s - proof - that Savino murdered
McWaters during the commission of a rob-
bery:: It was not an unreasonable strategy
to forego the defense: i
3. Intoxication. Defense
Finally, Savino maintains that his attor-
neys should have pursued, or at least. dis-
cussed with him, a defense of diminished
capacity due to intoxication to both the capi-
tal murder charge and the lesser. included
offense of first degree murder. Again, we
cannot agree.
[12,13] Under Virginia law, mere intoxi-
cation does not negate premeditation: Fifz-
gerald v. Virginia, 223 Va. .615, 292 S.B2q
798, 807 (1982), cert denied, 459 U.S. 1228,
103 S.Ct. 1235, 75 L.Ed.2d 469 (1983); Giar-
ratano v. Virginia, 220 Va. 1064, 266 S.B.2d
94, 99 (1980), cert. denied, 498 U.S. 881, 111
S.Ct. 222, 112 L.Rd2q 178 (1990). A. defen-
dant may avoid conviction of capital or first
degree murder if he Can prove that he was so
greatly intoxicated at the time of the killing
that he could not deliberate or premeditate.
Essex v. Virginia, 228 Va. 273, 322 S.B.2d
216, 220 (1984); Fitzgerald, 292 S24 at
807; Johnson v. Virginia, 135 Va. 524, 115
3 plea,
O pre-
se ex-
enses.
; with
2ading
2al his
State
indum
1d his
his at-
ch him
> con-
judge
nemo-
e ser-
plead-
below,
intary
Savino
xisted
ursue.
: pled
enses,
ursue
ed by
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cause
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mance
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7, 354
| F.2d
> US.
1992).
‘trick-
S.Ct.
Sixth
yunsel
al de-
iich he
1 to be
The
t Savi-
guilty
eading
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ent to
SAVINO v. MURRAY 599
Cite as 82 F.3d 593 (4th Cir. 1996)
fendant must show, first, that he received
deficient legal representation, and second,
that the unprofessional errors prejudiced his
case. Id. at 688, 694, 104 S.Ct. at 2064-65,
2068. Competency is measured against what
an objectively reasonable attorney would
have done under the circumstances existing
at the time of the representation. Jd. at 687-
88, 104.S.Ct. at 2064-65. Because counsel’s
conduct carries a strong presumption of rea-
sonableness, reversal is warranted only if the
defendant can affirmatively prove prejudice.
Td. at 689, 693, 104 S.Ct. at 2065, 2067-68.
In the context of a guilty plea, the prejudice
inquiry is “whether counsel's constitutionally
ineffective. performance. affected the outcome
of the plea: process.” Hill v.. Lockhart, 474
U.S. 52, 59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d
203 (1985). The defendant. must show that
“there is a reasonable probability that, but
for counsel’s error, he would not have pléad-
ed guilty and would have insisted, on going to
trial.” Jd “Because a ‘guilty plea is valid
only if it represents a knowing and voluntary
choice among alternatives, Hill, 474 U.S. at
56, 106 S.Ct. at 369, a. client’s expressed
intention to plead guilty does not relieve
counsel of their duty to investigate possible
defenses and to advise the defendant so that
he can make an informed decision, see Via v.
Superintendent, Powhatan Correctional Cen-
ter, 643 F.2d 167, 174 (4th. Cir.1981) (diseuss-
ing obligations of defense counsel).. Howev-
er, if there exists no reasonable probability
that a possible defense would have succeeded
at trial, the alleged error of failing to disclose
or pursue it cannot be prejudicial. Hill, 474
US. at 59, 106 S.Ct. at 370-71.
Reviewing each of Savino’s allegations of
ineffectiveness in turn, we find no constitu-
tionally deficient performance. In light of
both the circumstances and the law at the
time, Savino’s attorneys made reasonable de-
terminations and provided adequate repre-
6. "Savino actually made two incriminating state-
‘ments on December 1, 1988—one at PA: :00 p.m.,
and another at 4:25 p.m.
7. The Edwards rule was designed to preserve the
integrity of the accused’s choice to communicate
with police only through counsel. Patterson v.
Illinois, 487 U.S. 285;.291, 108 S.Ct. 2389, 2394,
101 L.Ed.2d 261 (1988). Specifically, Edwards
sentation. Therefore, we need not analyze
for prejudice.
1. Illegal Confession
Before Savino entered his guilty plea, his
attorneys discussed the police questioning
with him and advised him that a motion to
suppress his confession was unlikely to suc-
ceed. He now argues that his attorneys
should have filed a motion to suppress ‘any-
way because, atthe very least, the Common-
wealth would have been forced to prove his
confession untainted: - Savino maintains :that
a suppression motion. was likely to be grant-
ed, however, because police officers violated
his’ Fifth Amendment rights by: questioning
him- about McWaters’s murder ‘after he had
asked’ ‘for a lawyer. Because: Savino ‘re-
sponded to the’ questioning by saying he
would talk with investigators i in the morning,
he contends that the’ improper interrogation
led to his confession later’ that day, peadetion
it tainted and inadmissible.***
In Edwards v. _ Arizona, 451 US. ATT, 484,
101 S.Ct. 1880, 1884-85, 68 ‘L.Ed.2d 378
(1981), the Supreme Court ruled that once a
defendant has invoked his . constitutional
rights and requested an attorney under Mi-
randa v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed2d 694 (1966), any. confession
obtained by interrogation reinitiated by po-
lice in the absence of counsel is inadmissible.
See also Arizona v. Roberson, 486 U.S. 675,
687-88, 108 S.Ct. 2098, 2101-02, 100 L. E:d.2d
704 (1988) (holding Edwards bars police-initi-
ated interrogation ‘following a suspect's re-
quest for counsel in the context of a separate
investigation). If, however, the ‘defendant
reinitiates discussion with police and then
confesses, the statement may be admissible.7
Minnick v. Mississippi, 498 U.S. 146, 156,
111 S.Ct. 486, 492-93, 112 L.Ed2d. 489
(1990); Hdwards,. 451 U.S. at. 485,.101.S.Ct.
at 1885. A defendant. who ends -police-initi-
ated interrogation by requesting. counsel,
and its progeny seek “to prevent police from
badgering a defendant into waiving his previous-
ly asserted Miranda rights.”’. Minnick v. Missis-
sippi, 498 U.S. 146, 150, 111 S.Ct. 486, 489, 112
L.Ed.2d 489 (1990) (quoting Michigan v. Harvey,
494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108
L.Ed.2d 293 (1990)).
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then specifically calls for an officer with
whom to talk about the incident in question,
has reinitiated further conversation for Ed-
wards purposes. United States v. Comoso-
na, 848 F.2d 1110, 1112-13 (10th Cir.1988);
McCree v. Housewright, 689 F.2d 797, 802
(8th Cir.1982), cert. denied sub nom., 460
U.S. 1088, 103 S.Ct. 1782, 76 L.Ed.2d 352
(1983).
[9] Applying these principles, Savino
clearly reinitiated contact before confessing
to investigators. Following his arrest, Bed-
ford police officers questioned Savino about
forged check charges until he requested an
attorney. When an officer subsequently—
and improperly—asked Savino why he killed
McWaters, Savino responded “you're: crazy,”
but gave no inculpatory answer. Officers
apparently continued discussing McWaters’s
killing with Savino, at one point tossing a
picture of the dead man’s body on the table
before him. Finally, Savino said he would
speak with officers in the morning after he
had gotten some sleep. When he awoke
about 1 p.m., Savino asked to speak with
Investigator Rush by name. He then sent a
note requesting to see the investigator. At
the onset of the interview, Savino both orally
and in writing waived his constitutional
rights. He confirmed that he had initiated
the contact with police. Only then did Savi-
no confess to the crimes. The record shows
that Savino reaffirmed the voluntary nature
of his statements throughout the interroga-
tion. At the start, he asked Rush to allow
him to tell his story straight through without
questions. After doing so, Savino indicated
that he knew his confession was against his
best interests because it eliminated any pos-
sible defense to the crime, but he observed:
“[W]hat I did was so terrible that ... I don’t
really deserve a day in court.”® Savino later
described the interrogation to his attorneys.
Savino explained that he had wanted to talk
to the officers, that nothing they said or did
caused him to confess, and that. his state-
ments were true. Applying the existing law
to these facts, we find that it was reasonable
for Savino’s attorneys to conclude that their
client had voluntarily reinitiated contact with
police. Furthermore, it was logical to sur-
8. A few hours later, Savino gave the second
Statement in which he again confessed to the
82 FEDERAL REPORTER, 3d SERIES
mise that his statements would be ruled ad-
missible if challenged.
Even assuming, as Savino contends, that
the officer’s question during processing was
improper interrogation and that defense
counsel failed to recognize it as such, the
statement elicited was not self incriminatory
and thus not protected by Edwards, 451 U.S.
at 485-86, 101 S.Ct. at 1885-86. Further-
more, the fact that Savino initiated the later
police contact eliminates any taint that might
have arisen from the earlier questioning. In
Edwards, the Supreme Court explained that
once a defendant initiates discussion with
authorities, “nothing in the Fifth and Four-
teenth Amendments would prohibit the police
from merely listening to his voluntary, volun-
teered statements and’ using them against
him at trial.” Edwards, 451 U.S. at 485, 101
S.Ct. at 1885.
Finally, we find little if any evidence in the
record to support Savino’s contention that his
physical condition at the time of his state-
ments precluded their voluntariness. Savino
advised his attorneys that he was not under
the influence of cocaine at.the time he con-
fessed. Even if he had been intoxicated
when arrested in Roanoke, officers testified
that he seemed normal by the time he
reached Bedford County. In addition, Savi-
no slept several hours before meeting with
police again after the initial interview. Savi-
no initiated that contact and expressly
waived his Miranda rights after being re-
minded of them. Defense attorneys testified
that they did consider moving to suppress
-Savino’s statements on the basis of his men-
tal and physical state, but after reviewing his
medical evaluation and discussing his mental
condition, they decided that there was no
evidence to support a claim of involuntary
confession.
In light of all of the evidence regarding
Savino’s statements to police and the infor-
mation known to his attorneys, we cannot say
that Savino’s counsel performed unreason-
ably or inconsistently with existing law in
their treatment of his confession.
crimes after being reminded of his constitutional
rights.
wen +
2. Robbery Predicate Chz
Savino also contends tha
poor representation by fez
the robbery etoraes to t
haree. We di
0) Under Virginia la
commission of a robbery i
takes place before, during
bery and is so closely relat
place, and causal connecti:
killing part of the same c
as the robbery.” George v
264, 411 S.6.2d 12, 20 (199
1982: opinions), cert. denied
S.Ct. 1591, 118 L-Ed.2d 3
Hoarward: v. Virginia, 229.\
“89, 91: (1985) ‘(explaining
“during the ‘commission of
include a killing’ before, d
‘underlying felony). Thus,
be the sole motive to su
capital. murder during the
robbery in Virginia. Gee.
21.. To prove a’ defendant
cution must: show that: th:
robbery “were interdepen
common criminal’ design.’
Virginia, 2A1 Va. 364, 40:
cert. denied, 502 US. ot
L.Ed2d 82: (1991).
occurs after the: citing? dc
the decision to steal was ai
the two crimes were unre
Virginia, 223 Va: 66, 286 £
cert. denied, 459 U.S. 882,
L.Ed.2d 148 (1982).
[11] Based on the evic
reasonable _ person could
committed: robbery ~ in
MeWaters’s murder. The
Savino was in possession ©
let when he was arrested.
he took McWaters’s cash
the murder and that he
other. property: belonging t
he returned to the house
He also told ‘police that he
to murder McWaters and t
a friend to “South Amer
something like that” afte
there was some evidence t
existed, a reasonable pers
“j\ wr
at
Ad .
Judge grants Savino
- a delay of execution
By Jim Mason
News Leader statt writer
Circuit Judge William W. Sweeney
. of Bedford County, who sentenced Jo-
‘ seph Savino III to die this Friday in
Virginia's electric chair, today signed
d, an order postponing the exorulion In-
Be definite :
ne of Savino’s attorneys, Gerald
T. Zerkin of Richmond, said he had
Os eexpected Sweeney to grant Savino’s
‘5? request for a stay of execution after
8s the 31-year-old convicted murderer
'S) changed his mind Sunday and decided
to appeal his case. .
M Meanwhile, Bert L. Rohrer, a
spokesman for the Virginia Attorney
General's Office, confirmed the state
would not fight the stay.
Savino said yesterday he was per-
suaded to appeal mainly by Marie
Deans, director of the Virginia Coali-
tion on Jails and Prisons. Savino’s
father and other family members, as
Suspect who fled
from Henrico trial
found in Chicago
FBI agents have arrested a Chica-
8° man who fled a Henrico County
courtroom last month during his trial
for armed robbery.
Harry John Hobson, 37, also known
as John Harry Harris, was arrested —
5 ter 4a snsdasuva Sqy qa horities
<i 1 enrd caxyei
well as Zerkin and another lawyer,
also helped persuade him, he said.
Ms. Deans said Savino s
execution would cause his family and
su ers more pain than ould
spare them. _
“H nts to make a difference,” in
the campaign a nia’s
death penalty, she said. “He is not
grandstanding.”
Savino pleaded guilty last year to
the capital murder of Thomas
McWaters, 64, a retired engineer with
whom Savino lived on a 200-acre es-
tate in Bedford. He also pleaded
Guilty to robbery.
The prosecution contended that Sa-
vino hit McWaters in the head with a
hammer and stabbed him with two
knives before he robbed him and used
the money to buy cocaine in Roanoke
the night of Nov. 29, 1988.
But Savino and his lawyers say the
slaying was more a crime of passion.
Savino said he killed McWaters while
in a cocaine-induced craze because
McWaters constantly demanded sex
from him. ‘
After Sweeney sentenced Savino to
die in 1988, Savino announced he
would reject all appeals except the
automatic one to the Virginia Su-
preme Court, which affirmed his sen-
tence in April. Before he changed his
mind, Savino said he would prefer to
be executed than spend years on
death row while his case is appealed.
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Va. inmate‘
is executed .
for slaying :
Joseph Savino was third person .
put to death in state this year ~
7 ~ 18-96 wy FRANK GREEN Richmon fe
“e
TIMES-DISPATCH STAFF WRITER V A q;
JARRATT — Joseph Savino III, an addict turned capital ®
murderer, was executed by lethal injection last night for.
the 1988 slaying of a Bedford man he robbed to purchase:
drugs. ae. ‘4
Savino, the third person to be put to death in Virginia
this year and the 32nd since reimposition of the death’
penalty, was pronounced dead at 11:22 p.m. at Greens-
ville Correctional Center, said prison spokeswoman
Tammy Brown. ‘ 2
In a final statement, Savino said he was. sorry for the,
death of Thomas McWaters but denied responsibility for.’
the killing. Prison personnel had some difficulty finding”
veins in the arm of Savino, an admitted cocaine user, The
Associated Press reported. i
Savino had been scheduled to die at 9 p.m., but the
’ execution was delayed to allow another appeal to the US.
Supreme Court, which had denied a stay earlier in the
day. The high court turned down the bid, and Gov.
George Allen denied clemency. .
&
Ready to die ty
Savino, 37, of Mount Vernon, N.Y., was convicted of
the Nov. 29, 1988, robbery and beating death of
McWaters, 64. He had befriended Savino and helped him.”
win parole from a New York prison.
The two were lovers and living together on McWaters’
farm when Savino was caught writing unauthorized
checks. Facing prison again, Savino murdered McWaters
and used property he stole from him to buy cocaine.
In a telephone interview yesterday, Savino said he was
ready to die. But even though he had pleaded guilty to the:
crime-he denied he killed McWaters, insisting the mur-.
der was committed by someone else.
Savino also said in the interview that his 1994 heroin
overdose was a suicide attempt and admitted — contrary
to his claims at the time — that correctional officers were
not trying to kill him by supplying him with a potent form |
of the drug.
Request for stay rejected
Savino spent yesterday visiting with his father, Joseph
Savino Jr., of Pelham, N.Y., members of the clergy and his
lawyer, Gerald T. Zerkin of Richmond.
The U.S. Supreme Court, in a 7-2 ruling yesterday,
rejected Savino’s request for a stay.
“Pm devastated now, to hear this. I just haven't really
digested it yet,” Savino said.
“T don’t really see this as a punishment for myself. To
PLEASE SEE EXECUTION, PAGE B3 >
es
Joseph Savino
is executed 7-//-
H
for slaying
TW/Mes DispetA
V EXECUTION FROM PAGE B1
be very honest with you, Idon’t want to live anymore like
this, anyway. So, I’m glad, to a certain degree, that this is
over.
“Of course, I would have wanted a new trial, but since
that didn’t happen it’s perfectly fine with me that I’m
going to be out of here tonight.”
He complained, however, about “the devastation that
this has had on my family and friends. I’m on the phone,
constantly, with friends who are sitting at home ...
looking at pictures of me...
‘My family is just totally, totally devastated and these
people don’t deserve it. This isn’t going to benefit any-
body tonight,” he said of his execution.
Waiting for execution was difficult, Savino said. “One
of the things about death row people don’t realize is there
really isn’t all that much camaraderie.
“You would think there is because we all have the
same sentence and basically, we all have the same
enemy.”
But, “there are a lot of petty jealousies and there are
people on death row who aren’t reaily all there mentally.
And we have a real problem on death row with people
snitching.”
Though executions take place in the execution cham-
ber at Greensville, death row is located at the Mecklen-
burg Correctional Center in Boydton. It’s a place, claimed
Savino, where “the tension is very high, the stress is
very high and the conditions are horrible.”
Savino was hospitalized in 1994 when he overdosed
with an injection of heroin. He claimed officers were
trying to kill him to cover up their drug dealing.
Yesterday he still insisted the heroin got into the
prison through a corrections employee.
However, he admitted that while “it came in through
an officer, it wasn’t them giving it to me to kill me and all
that.”
Savino said he made the story up to get better treat-
ment. He was sent to live in Greensville after the
incident and not returned to Mecklenburg.
Corrections officials came to Greensville from Rich-
mond and asked, ‘What do you want, Savino? What can
we do to get you to shut up?’”’
“T said I want my property back [from Mecklenburg]
and I want to be moved to a cleaner, quieter part of
prison. And I'll teX you, for the year that I was here, I
TANTEI RIT LS IT I, 5 TTR 5 SRT ED LAER SETS SA: AES ACI I TE HA
Kil inon
VA
1990 PHOTO
CHANGED STORY. Joseph Savino III said he was not
the target of a plot by corrections officers in 1994
but instead tried to kill himself.
lived in the lap of luxury, man.
“T lived in a very nice cell that was clean, quiet. [ had a
guard that checked on me every 15 minutes and did
anything I needed to be done and I had cable television
and that was all as a result of that.”
He alleged yesterday that corrections employees are
“very dirty, these people. They don’t need a spotlight on
them. That’s one of the reasons they don’t like inmates
doing interviews anymore.”
Savino said he had made peace with himself. “The
bishop [Walter F. Sullivan] was here yesterday, he gave
me last rites, I’ve become friends with him over the
years.”
Savino’s father was permitted to stay with the con-
demned man for his last meal of pepperoni pizza, fruit and
Seven-Up at about 3:40 p.m.
The elder Savino told The Associated Press that his
son was anxious but wasn’t that concerned about himself.
“His concern is more for the family — what they’re
going through,” the father said. “He didn’t want us to go
through this. ... It’s a hideous thing we do to people.”
The younger Savino said he felt bad for McWaters, not
only because he was murdered but because his reputa-
tion has been attacked by lawyers.
“The truth of the matter is ... we’ve proved that I
didn’t do it,” Savino contended.
He said he pleaded guilty to the charge in part to
protect a friend. “At that time I was suicidal. I was
crashing from coke and pretty disgusted that I still had a
needle in my arm.
“T wanted to die, anyway,” he said.
|
|
|
am =
ret
ee a
————————
Savinos execution by injection set
T1mes — DispetA RichmowD VA 1-17-96
He was convicted in 1988 slaying of Bedford man
BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Barring a last-minute reprieve
from Gov. George Allen or the
courts, Joseph Savino, a once-out-
spoken member of Virginia’s death
row, is set to be executed tonight by
injection.
If executed, Savino would be the
third person to be put to death in
Virginia this year and the 32nd since
reimposition of the death penalty.
Savino, 37, was convicted of the
Nov. 29, 1988, robbery and beating
death of 64-year-old Thomas
McWaters of Bedford. McWaters had
befriended Savino and helped him
win parole from a prison in New
York.
Savino was facing prison again for
the unauthorized writing of checks
on McWaters’ account when Savino
murdered him. Property Savino stole
from the victim was used to buy
cocaine.
While on death row at the Meck-
lenburg Correctional Center in Boyd-
ton, Savino wrote and called report-
ers to complain about conditions.
He apparently has had little con-
tact with the news media in the last
year or so. His lawyer, Gerald T.
Zerkin of Richmond, said Monday he
was advising Savino not to comment
publicly on his case for the time be-
ing.
In 1991, former Gov. L. Douglas
Wilder denied Savino’s request to
have his sperm frozen for the possi-
ble impregnation of his girlfriend.
The request was made on his behalf
by fellow death row inmate Joseph
Roger O’Dell, a rapist-murderer.
In 1992, three years after pleading
guilty to the murder and robbery of
his male housemate and asking for
the death penalty, Savino appealed
his conviction. He argued, among
other things, that he was improperly
questioned by Bedford County sher-
iffs deputies.
In 1994, he overdosed on heroin
after getting the narcotic and a sy-
ringe into his cell on death row at
Mecklenburg. Officials said it was
unclear whether the overdose was a
suicide attempt.
Savino accused corrections offi-
cers of getting him the drugs, a
charge corrections officials and other
death row inmates disputed.
His appeals were most recently.
turned down by the 4th U.S. Circuit
Court of Appeals on May 29. Still
pending before the U.S. Supreme
Court today are a request for a stay of
execution and another appeal.
If he is executed, however, one of
Savino’s hopes will be realized. In
1990, Wilder also turned down Sa-
vino’s request to die by lethal injec-
tion instead of the electric chair.
Virginia law has since been
changed to permit lethal injection.
The two men executed earlier this
year were Walter Milton Correll Jr., a
borderline-retarded man who con-
fessed to a brutal 1985 robbery and
slaying in Franklin County, on Jan. 4;
and Richard Townes Jr. on Jan. 23 for
the 1985 robbery and slaying of a
Virginia Beach convenience store
clerk.
a
{ ;
SHADRACK, A slave. Shadr ach
State of Virginia, sShadrack, slave of Alice
Womack, Gonwited on Oct. 10, 1828, of the mur-
der of George, slave of alice Womack. Dep. Sh.
Thomas Jones attested akecution took place on
Nov. 21, 1828,
Arc, of Va., Aud. Recs., Box 6, X8SKXXS2R Env.
1829, Item 153.
Please assign locetan to /’Hiy/rania County. Bldaggeoed viitiva
with A SHOVE! because te blamed bin tor being the Cause
oF 4 whipoiing that he had been given by tis owner
Lox 308, Executive Supers of bov.
of :the garage,’ taken from ‘the §
Coleman porch, showing: just. what, the:'
kill aw when they. decided to‘steal
“th ‘A. Ford
+
Then one of the.men commenced. striking matches, . -,
and the acrid odor of flame against flesh began to per--.’
ish torture. went. on, the -
vade the room ..... The fien
farmer shrieking.-for mercy, reiterating ‘there was .no
in the house, With an oath of disgust
kicked him. violently and moved over,
an upstairs bedroom. Th
that led wees the back porch.
_.and pebbles, the fiend Graggee
-old man, [le lurched to the well, where he finally dropped
voared. caatenenaty’ in the omi
John Coleman slumped against the well—dead..: i:
OLDLY, diabolically, the: killer: picked up the: life-~..
less body and: hurled. it into the forty-foot well, ©.
had : momentarily:
-house.” There. °°
was money to.be found; and he meant to'find it, He
out cabinet. *:
airs, On the -
began tearing open: the. book-case, we
drawers, ripping i ¢c
mantle stood a pendulum clock..He reached inside, after
opening ‘the glass .door, and :
its hands
stopped tickin % pede.
Within a few minutes his villainous partner strode -. ]
*~ commenced _— to the Coleman farm.
had the presence o
“Upstairs.
“Git her down.
the old. man!” |“ i ae ed :
- The taller. of the pair.went -upstairs, ‘to: return
dragging Mrs.-Coleman behind: him:
age fe eS
Coleman. The horrible tortures were repeated. '
ALL RIGHT.” ong
. . ! ‘The keys
ack yard, his inert body gratin along stones: :s ,
sy in
face. A gnarled finger snatched at the trigger. The gun be
nous. silence of: the night.”
“y;were none of the familiar signs of ‘activity. The front ©
door was partly.-open, Walking in, a
like a person dead thar alive, as she feebly strove to.
with the single under garment she now ©.’
-the return of Spring and a new zest
cover her, bod, zi r
was wearing. -The horror ym Pree | that lay in her
heart was vividly, pitifully reflected in her face. hereas
a short hour or two ago she had hummed with joy at-
awaited the onrushing. spectre of
hands of her brutal attacker.
With vile oaths and curses the two men carried
her:to the well, Terror overcame the Byrd woman_ as
she realized their purpose. She struggled violently. One
of the men picked up a slab of concrete from .the crum-
bling base and crushed her skull. The body tumbled
- into’ the well...
growled, “let’s git away from here.
Go git the car,” »: a ce ’ :
‘They strode'to the garage situated near the house.
were found in an inside pocket of -the small
sedan, a-Model: A: Ford, Within a few ‘minutes the
: ‘killers had ‘disappeared into, the.cloaking .safety ofa.
fog-smothered night’. ¢. |. ° , :
y The next morning at’7 o'clock, heavy clouds hung
the sky when Tom’ Braxton, darky handyman of the
Colemans for 39 ‘years, walked up to the house, . He’
‘noticed that the place was strangely silent, that. there. ..
y.-C hasty survey of;
‘the. room told him something was wrong. He called
for the Colemans, heard nothing—only an empty, mock-’
ing silence. He noted that the shotgun was missing from
its usual place in’ the hall. There was no sign of blood,
but old Tom Braxton became convinced that something
terrible had happened. He rushed to the home of Mrs.
‘Austin “Scott, and breathlessly told her something:
~““tunny” had happened back at the Colemans’. Within
_ ‘intensive search inside and out of the house,
.. .to find. the elderly couple.
a short. time the report of the mysterious disappearance
-- of the couple had spread like wildfire,
with the result
farmers and laborers
) f One of them.
mind to put in a call for the Fred-
that a large group of neighboring
ericksburg police. ; ,
Arriving at the Coleman _ residence, the crowd
“swarmed over the grounds and fruitlessly searched the
Mrs, Cole-.’.
house. In the upstairs bedroom they noted
man’s clothes lying in a pile on the floor. Despite an
they failed
for life, now ‘she’ “ -",
death—perhaps a‘:
- - welcome: relief from what she had undergone at the. .
ee
* him.
> well:
Prosecutor Carner and Sergeant.
Carr of the Virginia State Police, -
_ above, seated on the Coleman =‘:
. porch discussing. the crime. Be- ,
‘low, .last residence of two
.. ‘fiendish men
is
xy CS GE CRD MRD EHNA STs een wn ee tex GE Reem emo
"One of. the searchers noted that a handsome collie «.
belonging to the Colemans was acting somewhat strange- >:
His air of dejection—tail down and head nudging «.'
ground—was unmistakable. Several times the do
‘walked slowly from the rear porch to the well and bac
again, then repeated the procedure whenever the men“:
hunting the grounds for the missing couple came near-:“
he searcher walked up and patted the dog on =:
the head. “What’s the matter, old boy? No one given &
you any water?” Silently the .dog walked back to the .;.
. “Ede
T! EN the man noticed that the ‘chain and bucket were ~
torn from the well. He ran and peered into the,
half-gloom of the well. Sure enough, something white’.
was floating on top. It looked like a dress, or maybe +>:
‘a night-gown. He called to several others assisting in |
the hunt. Within a few seconds the full sickening reali--_.
zation swept over the crowd gathered around the well. .:
°
©! Sheriff “Blaydes, ‘co=* >
author’ of the story,
fearless, ‘manhunter.
4 “Ww
Coleman residence : that,
p invited a series of fich
“This “by its neat appearance ‘and general condi<
: tion 0!
is. the
f upkee dish crimes, At left, the rear porch in Summer
’ .
TIP +g :
Who. But a Pair of Mani
‘Torture
_ SHE BLUSTERY. slush-r :
ak were” over. . April’ h. 3. turning .at.the front door, He glanced around, mildly:
‘ days. had given eager invita nN; toa: , Surprised. Outside clouds again had - raced across . the’
Po 6 4§ a toy tit “ Poe ° Z ‘
No weapon, but there was a more intimidating threat
Suddenly he heard the faint click of the door-knob
wasn’t-far behind. - =. skies and complete, pitch-black darkness had fallen. The
- On that second: evening: in ‘A til, ] k Scorewung open. Two men stalked slowly in.‘One ap-
lessees ‘Seine humme ‘peared’ to a little under ‘six ‘feet, broad of shoulder,
etween the ki
*dark-hued, with a: thick-li ped mouth: and cold, ‘star-
‘ing eyes.’ The other seemed to be a bit shorter, lighter:
3. in hue, slenderer, also with staring oe close together,
One, the. taller, seemed vaguely familiar. to eman, EE as eas
«but he: wasn’t: sure, Bore ae | \ the other mani gnarled, and sprang
breezes’ and ©. :**=The intruders slammed the door shut behind them “. towards ‘her, his rough hands ‘encircling her throat. < +
the: paradise .of, '.:and stood wordless, looming dimly in the half-light cast.” ’ “Suppose you tell us where the money is,”: he grated ‘©
athe fy ae by.a‘single lamp in the room, oth Leet tween’ set teeth:)3 220° 2° A Or au ae ee ek
angi in-Coleman: was amazed and a bit alarmed, His. +. ™We haven’t any in the house,: “Mrs. Coleman
‘heart began to beat.a little faster. There was something ° managed to gasp out weakly, The man gave an angry
‘deadly prenacing about these two men who stood silent - oath and hur se foe to therfloor,...«° | ee
appy’ and full of the and still a few feet from him, Alone with his wife, the’... “I know how we ‘can make “em talk,” one of the
ing room, contentedly .. nearest house a half-mile away, he began to sense real. -" ‘men: said. “Get some - pins—and_ bring those matches fe
edericksburg news- danger. “Fons rate Aino Ty . ode oo.) Over there!” : : ' ay lon
brooders, new paint - . - Well, what do you want? the farmer asked. : - cow Wg 2 dragged the fallen man, nearly out from the
-concrete’ platform around | “You know what we want,” one of the men snarled, terrific blow, into the middle of the room. One knelt ..
aR Cte en Set An We’ want money—and the jewelry we know you got!” © ‘beside the farmer, He be
a
elie
: , Ars, John: Thomas:
Coleman, tsylvania ny
of ‘lilacs, dogwood,
' ROTA ear gis
I the flesh of joke (ce an to- pees Soesees and pins ‘
.-. Into the flesh of John eman, Ordering. him to reveal _
BY THIS time: Mrs, Coleman had hurried from the ~ the hiding place ‘of the money and the jewelry. The.
.™ .kitchen into the room. The evidence of peril: was . old farmer vainly moaned there Was none-in the house,
“unmistakable, Terror struck at her heart, but she re- “Merciful God!” sobbed Mrs; Coleman, prone on:
mained still, hoping against hope that the men would ° the floor.’ “Let ‘him alone, please ,let. him alone!” But -
‘ leavewithout doing them harm.’ The intruders showed her pleas fell on deaf ears, ear ated Ta egy
“Just. about ‘ready, John,”
room. Re ae ae oa
~ “All right, mother, I’m coming -now,”
‘and threw the paper down.
the small dining. room, er
preerary
Aun dtaty
lelbady trove .
GRANGLN, William, KEMP, John and SHAVERS, Hugh
- (Not confirmed. ) : i
"Richmond, Va., sept. 19: The following have
received sentence of death.at the District Court
now sitting here: William Granger and John Kemp
for forgery and Hugh shavers for felony."
Gh C2ETITE, Boston, Mess., Oct. 5, L791,
According to Exce. Pipers of Gav. Box 62 Sugh 178)
Snavers trad previously orawa a tbat SevrTence AF
Bielnond Ar robbiys A wtesauise Cp wis pardoned,
+ hemp & Graner pardoned per box 71. Exec. fayers
Of CVIUO
Sauer exttted on [P19
Slave SIMON & See other side.
Nansemond Co., Va. Court of Oyer and Terminer,
held 12-12-1798, Simon the property of Thomas
Pugh was convicted of burglary of storehouse of
KASMREMXER Messrs, Joseph Hattersley and William
Fisher, merchants of the ‘town of nubiolk, on
Dec. 4, 1798, and burglarizing the shop of Eph-
raim Hugford (shoe maker) on the night of Nov.
26, and KEXK sentenced to be hanged on Jan. 18,
1/99. Nadued at 75 ibs, | Bxecutton attested by
oh. John Godwin,
Archives of Virginia, Auditor's Records, Hem
355, Box 1,°1799 Envelope. ~
This was his second offence of capita | felony. (yn March
of (798 he was cast for death in Nansemond County for
robbing the premises of one Sanne! Bailey. But he was
grass su pardon for that. But no merey on second
ime around.
Box 102, Exec. Fagers of Gov.
SMITH, Frank | (Sun dh
Black, hanged Princess Anne Co., Va. dheway.
The following is from an 189@ issue of the Nor-
folk, Va., LANDMARK (sent by Van Raalte, no date)
concerning the execution of Arthur Lovitt, black:
"In 1877 a negro named Frank Smith was hanged
in Princess Anne County for an attempted assault -
on Anne Lovitt. At ll o'clock yesterday morn- !
ing, this woman's son was executed in the pres-
ence of a small crowd, thus paying the penalty
for a murder committed in September. (Lovitt
murdered Special Constable M. J. Beasley.) cea
Lovial tan ged [2-118 9 F
Dittecectt Name but undoubtedly the same Cas<c ——
ee
iV mu jy: Le le ‘en hanced |
JMi in, Frank, black, fle. Dp €O 1877
RUSSELL E. BOOKER, JR. Depar tment of H. ealth DIVISION OF VITAL RECORDS
STATE REGISTRAR JAMES MADISON BUILDING
Richmond 23208-1000 P.O. BOX 1000
January 16, 1992
Capital Punishment Research Project
Drawer 277
Headland, AL 36345
Dear Sir:
We have upoelves your recent request for a copy of the death record for Joe Jones
(Corling).
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 1854 through 1856 in Chesterfield County. No death record
was located for Frank Smith during the period 1876 through 1878 in Princess Anne
County or for Walter Johnson during the period 1891 in Petersburg and Dinwiddie
County. 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,
a a 2. epg °
on ee ae AFD +2
Susan B. Hayes /
Supervisor
Information Services Section
VP sw
V/, VIRGINIA
DEPARTMENT
OF HEALTH
‘
SMITH, Michael Marnell
City County) July 31,
» Dlack, 8lectrocuted
1986.
- Smith takes news ° /'«:
of clemency denial
calmly, with a smile
By Jim Mason
News Leader staff writer
Michael Marnel] Smith, scheduled
to die tonight in Virginia’s electric
chair, was not surprised that he lost
his appeal for executive clemency,
Said the woman who told him about
the decision.
“He hadn’t expected anything dif-
ferent,” said Marie Deans, executive
director of the Virginia Coalition on
Jails and Prisons. Smith took the
news calmly yesterday, she said.
“He just smiled when I told him,
and he said, ‘You OK?’ He was very
calm, very solemn.”
Smith, 40, a Shy, Bible-reading in-
mate, has eluded the death sentence
for nine years through court appeals.
He is to die for the rape and murder
of Audrey Jean Weiler, who was 35
years old and had two daughters.
Governor wouldn’t agree
His execution is set for 11 p.m. in
the 1908 vintage oak electric chair in
the basement of the State Penitentia-
ry’s whitewashed A Cellblock, which
faces Spring Street.
Ms. Deans, a paralegal and crusad-
er against the death penalty, said she
was disappointed Gov. Gerald L. Ba-
liles refused yesterday to commute
Smith’s sentence to life in’ prison
without parole.
“I am disappointed that the gover- |
nor is not listening to those of us who
know Michael. Michael is a child of
God and I had hoped the churches
would come forward for him,” but
they did not, she said.
Smith, Ms. Deans ‘Said, has been
remorseful of killing Mrs. Weiler.
“I think he grieves for her and for
her family. ... He feels like every
time his name comes up in the news-
papers, those two girls (victim’s
daughters) go through a lot of pain
and emotional trauma, and that is
why he has turned down requests for
interviews,” she said.
‘God’s will be done’
Ms. Deans said she will spend sev-
eral more hours this evening with
Smith.
~~ #'¥ou know, he’s very religious and
he has a very deep faith,” Ms. Deans
said.
|
|
told me yesterday, ‘I really have to
worry about you because | only have
to go through this (execution) once —
and you have to g0 through it so many
letter deny-
times.”
In his two-paragraph
ing Smith clemency, Baliles said:
“Based upon my review of the case,
I am not persuaded that the gover-
nor’s power of executive clemency
Should be exercised in this matter.”
ews letter, delivered by a state troop-
\er to Smith’s Charlottesville attorney,
J. Lloyd Snook III, was a response to
Snook’s appeal for clemency. -
| Baliles was scheduled to return this
fternoon from a tour of the US. Air
orce’s Strategic Air Command
‘headquarters in Omaha, Neb. €
‘Appeaied sentencing phase
Snook, as he did in appeals through
the federal and state courts, had told
the governor that a psychiatrist’s tes-
| timony during the Sentencing phase
of Smith’s 1977 trial had been improp-
er.
The psychiatrist told of Smith’s ad-
mission of an earlier sex-related as-
Sault as a teen-age bus driver.
Smith told of tearing the clothes off
a girl on the school bus, then deciding
not to rape her, the psychiatrist testi-
fied {
That testimony, Snook maintained,
violated Smith’s right against self.
incrimination and predisposed the
jury to feel that Smith would pose a
‘danger to other women in the future.
AS a result, Snook contended, the jury _
imposed the death penalty,
Baliles was last chance x
Snook, calling Baliles the “final Op-
tion” in the quest to save Smith, said
today he would make no further ap-
peals in the case.
Smith, the son of a self-proclaimed
fundamentalist preacher and the el-
dest of 12 children, grew up on,a
Williamsburg area farm.
He joined the Air Force and served
as a cook during the Vietnam War:
Virginia (James
In 1973, he was convicted in Wil-
liamsburg-James City County Circuit
Ourt of raping an 18-year-old girl, a
student at the College of William and
‘Mary, and was sent to prison for 10
years. He was paroled after servin,
three years and four months.
Four months later, on May 23, 1977,
on a James River beach about a quar-
ter-mile from his home, Smith en-
countered Mrs. Weiler.
Kindness turned to violence
A federal appeals court Opinion,
g Smith’s conviction, sum-
marized what happened:
“Having met the victim ona beach,
Smith paused to help remove briars
from her feet. The appearance of
kindness immediately dissipated
when Smith grasped the victim’s arm,
took her to a wooded area, produced a
knife, and told her to undress.” He
then raped and killed her, according
to the court record.
Smith, who is married and the fa-
ther of three, confessed to the crime
two days later,
He told sheriff’s investigators he
raped Mrs. Weiler, choked and
stabbed her, then dragged her into the
James River and held her head under
water until she drowned.
On July 1, 1977, Virginia’s revised
Capital punishment law went into ef-
fect, and the following November
Smith became the first person sen-
tenced to death under it.
Since the reinstatement of the
death penalty, no Virginia governor
has granted clemency. Former Gov.
Charles S. Robb allowed four execu-
tions during his administration.
Dwight Perry, the State Peniten-
tiary’s operations Officer, said Smith
has been “pleasant, cooperative, very
human and very personable” during
his last hours before tonight’s execu-
tion.
“It’s just one of those things that
nobody feels good about,” Perry said
of the impending execution. “You just
do what you have to do.”
A nine-member team will carry out
the execution, he said.
THE RICHMOND NEWS LEADER / Thursday, July 31, 1986
United Press International
Evangeline Briley, who married convicted murderer James Briley
shortly before he was electrocuted last year, carries a sign near
the State Penitentiary today to protest the scheduled executio
tonight of Michael Marnell Smith.
-THE RICHMOND NEWS LEADER, Saturday, August 2, 1986
Smith kept J. Briley
from getting pi
By Glenn Small
News Leader statt writer .
Some officials at Mecklenburg Cor-
rectional Center were “rooting” for
Michael Marnell Smith to be spared
from death, because the confessed
killer helped them keep a .32-caliber
pistol out of the hands of death row.
inmates James Briley and Earl Clan-
ton.
“There were several of us who
were at Mecklenburg at the time who
were rooting for him that he wouldn't
be executed,” said Samuel Pruett,
now an assistant warden at James
River Correctional Center. “Of
course, it didn’t turn out that way.”
Smith, 40, convicted of raping and
killing Audrey Jean Weiler in 1977,
was electrocuted Thursday night.
On Oct. 8, 1981, Smith informed
prison officials that “something was
going on” in the visiting room at
Mecklenburg, said Smith's lawyer, J.
Lloyd Snook III of Charlottesville.
When Maj. Harold Catron and Capt. -
Roy Smith entered that room, they
found Briley and Clanton attempting
to smuggle the weapon and ammuni-
tion through a partition, Snook and
Pruett said.
“It was just a very short time be-
fore they would have had the weap-
on,” said Pruett, one of the first to
respond to the visiting room. “I would
say they were within a minute of
having the weapon.”
Prison officials were able to sub-
due Briley and Clanton. The two
women who attempted to hand the
Stol:
soe.
a
weapon to them were Aatrested,
Pruett said. 3
“I don’t have much doubt that if
they had gotten the weapon and we
walked in that room they would have
used it,” said Pruett. “They had a
well-established record of being ruth-
less.” is
According to Pruett, officials at
Mecklenburg were pleased. with
Smith but kept his role quiet, because
they wanted to protect him from re-
taliation. aoe
“There was a conspiracy to keep it
quiet, simply to protect Michael
Smith — not to hide that he had done a
good thing,” said Pruett. , ~-.
“Life can be very hard for‘an in-
mate to live under the label of a
snitch,” said Pruett. id
If Smith had asked him,~ Pruett
would have spoken in his behalf to try
to halt the execution. But Smith did
not ask him, Pruett said. < -::
Snook said he made sure the inci-
dent was outlined in the report given
to Gov. Gerald L. Baliles, but‘it was
kept from the public to protect Smith.
+ Several prison officials apparently
approached Baliles concerning clem-
ency for Smith, but those- efforts
failed, Snook said. a:
Snook argued in an appeal to Ba-
liles that Smith, described as @ model
inmate, had been the victim of a pro-
cedural error in his trial. That appeal
also failed. ae
“My feeling is, yes, Michael did
take a life,” said Snook. “But he did
save at least.two lives. And on bal-
ance, doesn’t that give him the right
to live?”
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Veg ilo), ginternationall (eg gfe).
. office * P.O. Box 1270 * Nederland, CO 80466-1270 * 303-440-0913 International Secretariat * 1 Easton Street » London WC1X 8DJ England
UA 205/86 DEATH PENALTY 22 JULY 1986
USA (VIRGINIA): MICHAEL MARNELL SMITH
MICHAEL MARNELL SMITH, WHO IS BLACK AND AGED 40, IS SCHEDULED TO BE EXECUTED
ON 31 JULY 1986. HE WAS CONVICTED OF RAPE AND MURDER IN 1977. IN 1985 MICHAEL
MARNELL SMITH TWICE CAME CLOSE TO EXECUTION, BUT RECEIVED STAYS. HE IS THE
LONGEST SERVING DEATH ROW INMATE IN VIRGINIA.
AS OF 1 MAY 1986 THERE WERE 1,714 PRISONERS ON DEATH ROW IN THE USA, 30 OF ”
WHOM WERE IN VIRGINIA. |THE LAST PERSON TO BE EXECUTED IN THE STATE WAS
MORRIS MASON ON 25 JUNE 1985. EXECUTION IS BY ELECTROCUTION. THE GOVERNOR OF
VIRGINIA HAS THE AUTHORITY TO GRANT A REPRIEVE AND COMMUTE DEATH SENTENCES.
HE CAN DO THIS INDEPENDENTLY OF THE BOARD OF PARDONS AND PAROLES.
IN 1972 THE UNITED STATES SUPREME COURT RULED ALL EXISTING STATE DEATH PENALTY
LAWS INVALID ON THE GROUNDS THAT MOST LAWS AS THEN APPLIED CONSTITUTED CRUEL
AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION. SINCE THEN 38 STATES HAVE INTRODUCED REVISED
DEATH PENALTY LAWS AND THE NUMBER OF PRISONERS SENTENCED TO DEATH HAS RISEN
STEADILY.
AMNESTY INTERNATIONAL'S MAIN CONCERN IN THE USA IS THE INCREASE IN EXECUTIONS
DURING THE PAST FEW YEARS, A TREND WHICH THREATENS TO CONTINUE AS THE APPEALS
OF MANY PRISONERS SENTENCED TO DEATH DURING THE 1970S ARE NOW RUNNING OUT.
AMNESTY INTERNATIONAL IS ALSO CONCERNED ABOUT A NUMBER OF RECENT UNITED STATES
SUPREME COURT DECISIONS DENYING APPEALS IN SEVERAL DEATH PENALTY CASES, WHICH
HAVE NARROWED THE GROUNDS FOR FURTHER APPEALS.
AMNESTY INTERNATIONAL OPPOSES THE DEATH PENALTY IN ALL CASES AS A VIOLATION OF
THE RIGHT TO LIFE AND THE RIGHT NOT TO BE SUBJECTED TO CRUEL, INHUMAN OR
DEGRADING PUNISHMENT, AS PROCLAIMED IN THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS.
RECOMMENDED ACTION: TELEGRAMS/EXPRESS LETTERS/AIRMAIL LETTERS:
- URGING THE GOVERNOR OF VIRGINIA TO COMMUTE THE DEATH SENTENCE IMPOSED ON
MICHAEL MARNELL SMITH.
APPEALS SHOULD BE SENT IN A PERSONAL OR PROFESSIONAL CAPACITY.
APPEALS TO:
GOVERNOR GERALD BALILES
GOVERNOR'S OFFICE
STATE CAPITOL
RICHMOND, VA 23219 (TELEGRAMS TO: GOVERNOR BALILES, RICHMOND, VIRGINIA 23219)
COPIES TO:
THE EDITOR
THE WASHINGTON POST
1150 15TH STREET, NW
WASHINGTON DC 20071
PLEASE SEND APPEALS IMMEDIATELY. PLEASE CHECK WITH THE COLORADO OFFICE
BETWEEN 9:00 AM AND 6:00 PM IF SENDING APPEALS AFTER 31 JULY 1986. _--++ aux women
detained anywhere because of their beliefs, color, sex, ethnic origin, language or religious creed, provided they nave not used or advocated violence. These are
termed prisoners of conscience. It works for fair and prompt trials for all political prisoners and works on behalf of such people detained without charge or
trial. It opposes the death penalty and torture or other cruel, inhuman or degrading treatment or punishment of all prisoners without reservation.
Br Walz, at rig
ht in left photo
85-10-0
EXECUTION ALERT — ::
LOUISIANA THURSDAY, SEPTEMBER 26 ELECTRIC CHAIR
WILLIE CELESTINE, a 29 year old black man, is scheduled to be executed in Louisiana
for the 1981 rape/strangulation of an elderly woman. He has now exhausted the appeals
process and clemency is the only avenue available. If executed, he will be the 8th
person, and the 4th black man, to be executed in Louisiana since 1983.
SUGGESTED ACTION: Contact Governor Edwin Edwards [see belew for address]
EXECUTION ALERT
LOUISIANA MONDAY, OCTOBER 7 ELECTRIC CHAIR
ALVIN MOORE, a 25 year old black man, is scheduled to be executed for the rape/murder
of a 23 year old white woman who was killed in 1980. Two co-defendants who pled
guilty to burglary charges testified against Moore at his trial, but later recanted
part of their testimony.
Moore's attorney later admitted he had not been prepared for the trial. He did not
conduct any independent investigation of the case nor even interview witnesses the
prosecution planned to call. At the sentencing hearing, he called no character
witnesses, although there were people willing to testify for Moore. The newspaper
accounts do not mention any prior criminal record for Moore, and particularly no
history of violent crime. However, all Moore's attorney did during his 2 minute
and 13 second statement at the sentencing hearing was to mention that age (Moore was
20 at the time of the crime) could be a mitigating factor. He made no plea for
Moore's life, amd in fact at the trial had said that the person guilty of the crime
deserved to die. Ouring the sentencing hearing statement, he also said that if a
mistake in sentencing were made, it could be corrected later, on review.
Indeed, in 1983, the Federal District Court did vacate the sentence (ineffective
assistance of counsel was one of the issues raised), but the Sth Circuit Court re-
instated the sentence, and the U.S. Supreme Court, after granting a temporary stay (7-2)
denied Cert.
The regular appeals have now been exhausted, and acommutation hearing is being sought.
SUGGESTED ACTION:
iy Contact Governor Edwin Edwards
Governor's Office
State Capitol
Baton Rouge, LA 70804
504-342-7015
FOR UPDATES ON LOUISIANA CASES, CONTACT: LA Capital Defense Project 504-865-9022
EXECUTION ALERT __
THURSDAY 5 OCTOBER 24 (11 pem.) ELECTRIC CHAIR
VIRGINIA
MICHAEL SMITH, a 29 year old black man, is scheduled to be executed for the rape/murder
of a white woman. yan the past year, executions in Virginia have been the occasion for
aggressively racist demonstrations outside the prison. (There have also been strong
anti-death penalty demonstrations protesting the executions. )
SUGGESTED ACTION:
To ask for oienency, : contact: Governor Charles Robb
Scvernor's Office
sey State Capitol
Richmond, VA 23219
o 804-786-2211 .
FOR UPDATES ON VIRGINIA CASES, CONTACT: VA Coalition Against the Death Penalty 804-353-0093
UPDATES: Charles Rambaugh was EXECUTED in Texas on September 11.
The phone machine for the National Execution Alert Network has been on the blink. If
you don't get any answer at 402-474-6575, you can usually reach OeCourcy Squire on
weekday afternoons at 402-435-3100.
gomery of The Aghcciatod $0 | Press, , one |
of the four news ‘media witnesses.
No. family members: were at the —
‘since electrocution became the
state’s mode of capital punishment in
TB. fe yah see mite OAR
The eldest of 12 children,‘and him-
self the father of.
rhe attorneys ‘filed. their’ appeal
about 7:30 last hight with US. District
Sudge John McKenzie in Norfolk be-
4th US.
‘ Circuit Court of Appeals Judge Dick-
tal at .
son ene.
The US. Supreme Court, voting 5-3,
denied a stay shortly before 11:30
p.m.., according to Uni ed Press Inter-
national.
nounced he had just receive
telephone of the SupremeC
fusal to intervene.
_ln his ‘cominer
FS he Py t p ‘o
‘At this time; Smith waslbeing eleo-
focuted and the ritual ng acted
Anti-death peialty Advocates,
some of whom had ati¢hded ia 25-
_ he killed her!” * :-
minute interfaith service earlier at
nearby Pace Memorial United Meth-
odist Church, numbered about 150: On
one side of Belvidere, they sang
hymns and songs of the civil rights
‘movement and prayed. * >
Across the'street, about’ 200 people
had gathered, some in’ support of the
-death penalty, others out of curiosity.
. When the anti-death penalty people
began singing “Down’ By the River-
side,” some in the crowd across Belvi-
dere shouted, “That’s where she died! -
That's where she‘die i
A handful shouted:
burnt). caeaigs
CY;
*
That's where
Each time a motorcycle with two.
iis rE _. youths, - one holding: a “Confederate :
flag;‘passed the*area,’ the pro-execu:
‘tion crowd cheered: «°° :
‘Richmond » police .kept the two |
groups apart and kept. them away
from the Spring Street; front of the
prison where television crews had set _
up their cameras and equipment. .-
Police: broke up a brief scuffle
among the pro-death demonstrators,
Many of them from the Oregon Hill
neighborhood across Belvidere from
the prison.
Officers arrested two men from the
pro-death crowd, one for being drunk |
and obstructing justice and the other
for disorderly. conduct. They also or- ||
Way a man who was taunting
from atop a wall to the
eM@.a young black man who
‘
fit nt pr-denthcrow
down m the wa ;
™ oe rae with the'ear- 4 4
we Linwood ‘and James ae
ter} the Rev. Douglas itt
endent pis pening and’ stepped
gi shes Waly als , | is
til t Save‘ somebody’s > °«s...: “
yaa mrt? she 4 inmates, took their meais in their did not think about the death penalty
ele ‘ st you cai when she raped, strangled, :stabbed.
* death
< ‘effect,” Smith, reared asa
talist Christian;
dumctnianes Cuan: tires she
_ tained that people who’ ‘take part in:
executions will go | to hell unless they-,
; ; Pepent. ,
“We pray for those who will be lost.
because of their part in the execution. .
. But we have no rancor, - no” oe
‘ Ness,” Mrs. Smith said. ~
Smith’s parents, Marion and Rita,-
live'on the 1,000-acre Gospel Spread=-
_ing Church Farm in James City Coun- ..
. ty, where the elder Smith [ farn”
[panier
- Smith had been’ on Virginia's death:
“Fow at Mecklenburg - Correctional -
ccnp since’ Nov. 30, 1977, longer °
than any ti prisoners under the ”
"With his execution, 27 men remaig
0 dakth row. The:only one of the 27
.. with'a set execution date is convicted. :
‘hired-killer ‘Dennis. Waldon. Stockton’.
|” from Patrick County. He is scheduled
‘to die in the electric chair Oct. 3,~ ’ :
-In a 1977. interview, Smith said he”
‘Mrs. Weiler; at ,
;
“Peet ht Bi
Dk he death pealy ier
case, i ve :
Said,
W on the devil is ’
you don’t think of.
Apidos
"quences until Lit's over with,” he said.
Mah tn We (ey Sa a
©
With Hate From A Rape-Stlayer
(continued from page 19)
punford felt they might have disap-
ared.
During the confrontation with Roberts
on the beach, two William and Mary Col-
lege secu rity officers had been with Dun-
ford. They had helped Dunford locate
Roberts at the college. They were Harvey
Gunson and Richard Cumbee. Still in the
company of the two security officers,
Dunford decided they might as well go
across the parkway to Gospel Spreading
Farm to talk with Howard Smith to see
whether he might possibly be able to re-
member some other slight detail about the
man he saw putting fishing gear in the rear
of the green car near Mrs. Weiler’s Vega.
And there was another reason Dunford
wanted to go across the road to Gospel
Spreading Farm. He realized that
Howard's brother, Michael Marnell
Smith. had been released from prison a
few months earlier. Dunford had been the
investigator who had been responsible for
putting Michael Marnell Smith behind
bars a few years earlier.
Although the crime did not appear to.
have been one committed by a sex offen-
der, during initial investigation, Dunford
had, nevertheless, spent a great deal of
time going over a list of known sex offen-
ders and checking them out. The leads
had produced nothing concrete.
Michael Marnell Smith’s name was on
the list because in 1973, Dunford headed
the investigation that led to Smith’s con-
viction on a charge of rape. He had been
sentenced to serve 10 years and had been
teleased in January, Dunford learned,
wter serving only three years. So al-
though Dunford wanted to talk with
Howard Smith to see whether he could
recall any other significant facts about the
man observed putting fishing gear in the
back of a car. he also wanted to speak
with his brother Michael to determine his
exact whereabouts on May 23.
At this point, investigators still leaned
toward the theory that the murder did not
‘pear to have occurred during a rape,
“imply because they had never known a
fapist to use the precaution of stopping
Ng enough to put on a condom.
However, Dunford recalled a signific-
ASSOCIATION
ant pivotal point in his earlier investiga-
tion of Michael Marnell Smith, a point
that served to wind up the investigation.
Dunford had used something of a ploy
during his interrogation of Michael Mar-
nell Smith back in 1973. He said he had
been walking with Smith near where the
rape had occurred and he had told
Smith, ‘Now I’m no medical doctor, but
if they find your semen in the woman's
Vagina it is going to link you to that act.”
It was at this point that Smith confessed
to the rape, Dunford related.
Remembrance of that incident planted
a seed in Dunford’s mind. Could that
have been the reason a condom was worn
in the attack on Mrs. Weiler? Could the
assailant, instead of being a lover, have
been a rapist with the mistaken idea that
his semen could serve as a form of iden-
tification?
When officers arrived at the Smith re-
sidence, both Howard and Michael were
there, and while the two William and
Mary College security officers sat with
Michael, chatting with him, Dunford en-
gaged Howard in conversation. All the
while, though, Dunford kept an eye on
Michael and noticed that he seemed ex-
tremely nervous. Dunford realized, how-
ever, that Michael's nervouness could be
caused by his presence; so he called
Howard into an adjoining room to talk,
and to ask Howard if he knew why
Michael was so nervous.
While Dunford was busy in the adjoin-
ing room, security officers Gunson and
Cumbee talked informally with Michael
Smith. The two officers had also noticed
how tense Michael appeared. Then, using
the same type interrogation approach that
Dunford had used with Roberts, they
asked Smith if there was any reason his
fingerprints should have been found ona
limb at the beach near where Mrs.
Weiler’s body was found, and why also
his footprints would be there.
Michael Smith shifted uneasily, then
mumbled something about grabbing hold
of a limb while he was down at the beach
fishing. The two security guards waited a
moment; nothing else was said. Actually,
officers had found no footprints that had
meaning and of course they had certainly
not found fingerprints on tree limbs.
After a few more moments of silence,
during which officers could feel the ten-
sion building, Smith said, *‘Do you think
a lawyer could help me?”’
Dunford re-entered the room. Gunson
told Smith not to say anything further
until his rights were read to him, which
Cumbee did. Then, a short time later,
(continued on next page)
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a
Michael Smith (above) carrying his Bible into police
headquarters for questioning. Right, Det. Dunford
points to spot on roadway exit where purse was found.
People who showed up for the birth-
day party were told that Audrey Jean
was gone and her purse had been found
in remote Colonial Parkway. An im-
mediate search began for the missing
woman and her car. It would be a for-
midable task for Colonial Parkway
wormed along the James River for
miles.
Shortly before dark a party of
searchers found Audrey Jean’s green
Chevrolet nosed into a clump of weeds
near the Archer’s Hope turnoff. The car
was unoccupied and the keys were
gone. There was nothing inside the
car or near it that would be helpful to
the investigation.
Archers Hope, the spot where the
car was found, was designated with a
historical marker. It read: “The great
Indian massacre of March 22,1622,
during which a quarter of the popula-
tion of Virginia was slain, came near-
est to Jamestown here in a communi-
ty known as Archer’s Hope.”
Park Rangers Trent Taylor and Frank
Kuncir took their search 100 yards
down to the beach, some 100 yards
from where Mrs. Weiler’s car was
found. In a clearing, they spotted
56
Mrs. Weiler’s car keys, her sandals, her
sunglasses, a book of poetry, and the
top and bottom of her blue, two-piece
bathing suit.
Taylor searched the beach area up-
stream toward Jamestown, while Kun-
cir ambled downstream toward Chesa-
peake Bay.
About a quarter mile down the river
bank, on the beach, Kuncir saw some-
thing in the water a short distance from
the shore. As he got closer it began to
take on a human form.
Breathing heavily from exertion
and anxiety, the ranger waded into
the water. He had found the naked re-
mains of Audrey Jean Weiler floating
face down. He could see what appeared
to be stab wounds in her back. He man-
aged to drag the body ashore. Out of
respect, he covered her nakedness up
with his ranger jacket.
Kuncir quickly informed his fellow
ranger of the grisly discovery and with-
in minutes other rangers and law offi-
cers were on their way, along with a
coroner who would take charge of the
body.
Kuncir, Taylor, and other rangers sur-
veyed the scene. Delving deeper into
the woods, they came across the clothes
Mrs. Weiler was wearing when she
arrived at the park A blue blouse and
a pair of corduroy slacks she was wear-
ing over her swimsuit were bagged and
tagged as evidence.
Since the body was discovered in
James City County, jurisdiction of the
case fell to that sheriff’s department.
Departmental deputies assisted by
rangers and Mrs. Weiler’s brothers,
combed the surrounding woods search-
ing for clues.
Fred Dunford, a veteran criminal
investigator with 20 years service in
the Army’s Criminal Investigation Di-
vision before joining the James City
County Sheriff’s Department, was
given the responsibility of running
down leads in the case.
The veteran officer, after making a
personal inspection of the body, noticed
bruises on her neck. Her necklace and
other personal jewelry were still on her
body. Dunford considered this to be
an odd set of circumstances in light
of the victims purse being found some
three miles away at a turnoff on the
parkway. If robbery had been even a
partial motivation, why was only her
Victim parked her c
had arrested the rz
~ purse taken? Why not
elry she was wearing
ring.
The area was rope
curious away and |
taken to the state cap
for an autopsy, cond
Chief Medica] Exami
ro. His findings ind
Weiler had been ma
and stabbed in the bac}
with a knife with <
were traces of w,
though not quite dou.
the river. He decline
had been raped, alt
source indicated tha
sexually assaulted.
Another discovery
some scrub bushe
puzzling tone to the
on a tree branch. o!
freshly used, disc:
Nearby, they found .
pon. Both items hac
blood on them. Polic«
Mrs. Weiler had b
monthly menstrua|
samples from the co;
the tampon matche
Weiler’s classificati:
Lawman theorized
night have used the «
of squeamishness ove:
flow.
Throughout the ir,
Weiler was never consi
His whereabouts cou|:
termined and verified
ee Se =“
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With Hate From
A Rape-Slayer
(continued from page 61)
Michael Marnell Smith gave a statement
to officers telling exactly what happened
two days earlier on the bank of the James
River.
Smith told officers he had been out
walking on the river's edge when he saw
Mrs. Weiler. who was also walking down
the beach. She had apparently stopped to
pull some thorns from her barefeet. She
had left her sandals back on the blanket
and was wearing the green corduroy
slacks. and two-piece swimsuit. After of-
fering to help her pull the thorns out,
Smith said he used his knife — a hunting
knife — to force her to go with him to a
growth of underbrush near the water’s
edge. There he forced her to remove her
clothing. He told Dunford all he could
think of was going back to prison so he
began to choke her, after he had raped
her. Dunford was convinced, too, that
Smith wore a condom at that time be-
cause he was afraid he could be identified
by the semen, as he had apparently be-
lieved in the first case.
After choking Mrs. Weiler, Smith
dragged her body to the water and held
her head under. He planned to let her
float out into the river, then the
Chesapeake Bay‘and the ocean beyond,
he told officers. When she moaned and
62
moved a bit, Smith said he. stabbed her
repeatedly with his hunting knife, which
had a serrated edge. Then he took her
clothing and hid them nearby in the
brush. He said he then went back toGos-
pel Spreading Farm and tossed the hunt-
ing knife into a marshy area — where he
later led officers who recovered the knife.
Thirty-one-year-old Michael Marnell
Smith was taken to James City County
Sheriff's Department and charged with
rape and murder. He denied taking the
woman’s pocketbook.
Dunford said a few weeks later a park
ranger, who remembered Dunford’s re-
quest to be on the look out for a green car
with the CB antenna in the middle of the
trunk, spotted such a car belonging to a
man who fished the river. Upon question-
ing tlie man, he admitted that on May 23
he had picked up a woman’s pocketbook
on the beach, taken two dollars from it,
and put it in his tackle box, only to throw
it out where it was found.
Trial was held in James City Circuit
Court in November 1977. Ironically, a
medical authority testified that saliva
tests from Smith were consistent with
chemical analysis of the semen found in
the condom; also that blood stains found
on the tampon, which was Mrs. Weiler’s
type, were of the same type as that found
on the outside of the condom. Smith
carefulness, as he saw it, had backfired.
On November 30, 1977, Smith was
found guilty in the two-part trial required :. 7
by Virginia law and sentenced by Judge.’ ©
Russell M. Carneal to be electrocuted
He was sentenced to die June 30, 1978
but this has been delayed following appe-
als. At the beginning of 1979 he had still,
not been executed but may well become.
the first to die under Virginia's new star, %
tute that requires the two-part trial — one;
to establish guilt or innocence and one t ig
set penalty.
(Editor’s Note: The name Ned Roberts.
used in this article is fictitious; the public:
has no need to know his real identity.)
Homecoming =
For A Missouri 7
Murderer
(continued from page 15)
panied the farmer to the site of the ab
doned Cadillac.
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quarters, Trundle soon located severak;
letters which the victim had received |
from her relatives. These were the letters:
which the neighbor had mentioned having
seen there. Writing down the return ad-"
dresses, the lawmen could see to it that,
these people were all notified of the
tragedy. | ie
When he saw the Cadillac, the identifi-
m
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(continued on next page)
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GOSPEL FA
RAPE-SLAY
by BILL KELLY
n the surface, May 23,
1977, appeared to be
like any other morn-
ing on Virginia’s peninsula.
But not at one particular
residence on Semple Road,
where beautiful, blonde Au-
drey Jean Weiler lived. The
divorced mother of two
daughters was baking a cake
and getting ready to cele-
brate her own 35th birthday
with a party of friends.
She fixed her girls’ breakfast, and
drove them to school. The children
were bright and cheerful that Monday
morning. As she dropped them off, they
waved goodbye and wished their moth-
er a happy birthday.
In was a final goodbye. The girls
would never see their mother alive
again.
The mother, too, was particularly
happy, her ex-husband was coming to
the birthday party, and it looked like
there was a chance for a reconciliation.
The Weiler home was located in York
County, which along with James City
County, is centered in the historic, re-
stored Virginia city of Williamsburg.
Arriving back home, Mrs. Weiler re-
turned to her usual chores of washing
the dishes and making the beds. Then
she proceeded to clean up the house
and make ready for guests who were
invited to her birthday party.
Around noon she decided to do some
sunbathing. Temperatures were in the
80s, and it was just a short drive to
the James River. Surely, she thought,
she could stretch out in her two-piece
bathing suit in one of those secluded
areas off the Colonial Parkway, and
once away from prying eyes, sun-
bathe topless.
Before she left the house, Mrs. Weil-
er left her daughters a note, saying
she was going to Colonial Park.
And so, blonde-haired Audrey Jean
Weiler drove out to Colonial Park-
way, and found a cloistered spot. All
she had on was a pair of sunglasses and
the bottom of her swimsuit when she
“a ,
he tealevo
spread out a beach towel, laid down,
and opened up a book of poetry.
At approximately 3 p.m. Ranger
Young pulled into Colonial Parkway
from Route 199, for a routine check
of the area. His eyes focused on a
woman’s purse by the shoulder of the
road. He got out of his car and went
over to examine it.
There was no money in the purse,
only a driver’s license that belonged
to Audrey Jean Weiler. The name struck
an immediate chord with the ranger.
He knew Audrey and her entire fami-
ly. Her one brother was an investiga-
tor for the James City County Sher-
iff’s Department. Another brother
served as fire marshal of Williamsburg,
and her estranged husband was assis-
tant fire marshal at this same facility.
i
CFSE AE PORTE PORT PR EE PETE EET LORTRT EDS TIE LE LPPE IE SOR ET Ee PERRI T LETT Penn ft pep Ie phe NPR TH 9
142 Va.
Noting the inconsistency in some of the
responses to questions phrased by respec-
tive counsel, the trial court concluded that
“life is all she’d ever give” and discharged
her from the jury panel. We cannot say
that this finding of fact was not “unmistak-
ably clear”, and we hold that the ruling
grounded upon that finding did not contra-
vene the principles announced in Wither-
spoon and its progeny.
Il. THE GUILT TRIAL
A. Reputation Evidence
Rape was an essential element of the
crime of capital murder charged in the in-
dictment. Code § 18.2-31(e). “{W]here
consent is advanced as a defense to a
charge of rape, the previous unchaste char-
acter of the prosecutrix may be shown by
proof of general reputation.” Wynne v.
Commonwealth, 216 Va. 355, 356, 218 S.E.2d
445, 446 (1975). The trial court refused to
permit such evidence on the ground that
the defense of consent had not been ad-
vanced.
[8] As defendant says, once the defense
is advanced, the issue of consent vel non
becomes a jury question. But whether evi-
dence relevant thereto is. admissible is an
evidentiary question. That issue depends
upon whether the defense of consent has
been advanced.
[9-11] We do not agree that the defense
is advanced solely by a plea of not guilty.
That plea could be grounded upon defend-
ant’s belief that the Commonwealth is un-
able to prove identification, opportunity, or
the physical elements of carnal knowledge.
The defense of consent can be “advanced”
within the meaning of the rule in Wynne
only by evidence adduced by one of the
parties. Whether the evidence is sufficient
for that purpose necessarily is a question of
law.
Here, the only evidence relevant to that
question was defendant’s own account of
how the crime was committed. On appeal,
defendant emphasizes certain circumstances
as described in his confession: he met the
decedent on a deserted beach; she joined
248 SOUTH EASTERN REPORTER, 2d SERIES
him in friendly conversation; she permitted
him to remove briars from her bare feet;
she walked with him to a wooded area; she
removed her own clothes and a tampon;
and she made no attempt to escape while he
affixed a contraceptive device. In light of
the absence of evidence of a struggle or
“defensive wounds”, defendant says, this
evidence was sufficient to advance the de-
fense of consent.
In making its determination on this ques-
tion, the trial court was not confined to
isolated excerpts of the confession. Accord-
ing to other portions of the confession,
when the decedent “started to walk toward
her car and said ‘I’m going’”, defendant
put his “right arm around her waist” and
told her, “come on, go with me”; she “was
not too willing at first, so [he] pulled on
her” and, when she asked him several times,
“where are we going”, he told her to “just
keep on walking”; when they reached the
wooded area, he “pulled a knife” and “told
her to take her clothes off”; she then said,
“please don’t do this, I’ve got two kids at
home, you don’t need me”; and, telling her,
“l’ve got to have you”, defendant “got on
top of her and had sexual relations with
her.”
The absence of evidence of a struggle or
defensive wounds was largely irrelevant to
the question before the trial court, for a
“woman is not required to resist to the
utmost of her physical strength if she rea-
sonably believes that resistance would be
useless and result in serious bodily injury to
her.” Barnett v. Commonwealth, 216 Va.
200, 202, 217 S.E.2d 828, 830 (1975). No-
where in his confession did defendant claim
that the act of intercourse was consensual.
Rather, he acknowledged that he applied
force in taking her to the wooded area, that
he threatened her with a knife, and that she
protested his advances. We believe the
only reasonable conclusion the evidence sup-
ports is that she submitted, not out of voli- /
tion, but out of a state of fear, one which,
given the brutal consequences which fol-
lowed, was fully justified.
Sainte earners
|
}
|
i
j
SMITH v. COM. Va. 143
Cite as 248 S,E.2d 135
[12] We hold, therefore, that the trial
court correctly ruled as a matter of law
that the defense of consent had not been
advanced and that the evidence defendant
proffered was inadmissible.
B. Instruction on Rape
[13] As tendered, defendant’s Instruc-
tion “H” defining forcible rape required the
Commonwealth to prove that the act of
intercourse was accomplished “by force and
violence”. Code § 18.2-61 does not require
the Commonwealth to prove violence. Be-
fore granting the instruction, the trial court
amended the language to require proof that
intercourse with the decedent was accom-
plished “against her will, by force”. The
amendment accords precisely with the stat-
utory definition, and we find no error in the
trial court’s action.
C. Photographs
Defendant charges that, since photo-
graphs of the victim’s body “were not nec-
essary to identify the victim”, they were
merely inflammatory and, hence, inadmissi-
ble.
[14,15] The admissibility of photo-
graphs is a matter within the sound discre-
tion of the trial court. | Inge v. Common-
wealth, 217 Va. 360, 364, 228 S.E.2d 563, 566
(1976). There is no abuse of discretion in
admitting photographs which are “relevant
and material to establish premeditation and
malice and to show the degree of atrocious-
ness of the crime.” Brown v. Common-
wealth, 212 Va. 515, 519, 184 S.E.2d 786, 789
(1971).
[16] We are of opinion that the photo-
graphs depicting contusions about the vic-
tim’s neck, abrasions on her back, and mul-
tiple stab wounds in her body were relevant
and material for the purposes approved in
Brown and that they were no more inflam-
matory than the medical testimony detail-
ing the results of the autopsy.
|
D. Testimony of Victim’s Daughter
The crime occurred at “approximately
1:45 or 2:00 p.m.” on May 23, 1977. Heath-
er Weiler, the victim’s young daughter, tes-+
tified that she last saw her mother at 8:00
a.m. that morning. One witness saw Mrs.
Weiler alive at 10:30 a.m. and another at
noon. Other witnesses described events
late that afternoon leading to the discovery
of the victim’s body and other physical evi-
dence.
Conceding that “the admissibility of evi-
dence is within the sound discretion of the
trial court’, defendant contends that, since
Heather “had no personal knowledge of the
offense”, her testimony “served only to in-
flame the jury” and its admission constitut-
ed an abuse of discretion.
{17] As we read Heather’s testimony, it
did nothing more than supplement the testi-
monial narrative of the sequence of events
preceding and following the commission of
the crime. Such background events,
though not directly relevant to the question
of guilt, are material to the fact-finder’s
understanding of the crucial event, and for
that purpose courts allow considerable lee-
way in the testimonial narrative. See
McCormick, Evidence, (2d ed. 1972) § 185, p.
434.
[18] We are of opinion that Heather’s
testimony was not, in the due process con-
notation of the word, inflammatory. None
of her language was inflammatory per se.
Given the fact the jury was already aware
that the decedent was the mother of two
young children, it is unlikely that Heather’s
appearance in the courtroom was inflamma-
tory. The record does not disclose, and
defendant does not argue, that Heather's
conduct or demeanor during her brief testi-
mony was maudlin, vengeful, or otherwise
emotional. Hence, giving due deference to
the trial court’s superior perspective of the
witness and the impact of her testimony on
the jury, we cannot say that the trial court
committed reversible error in allowing her
testimony.
E. Competency of Confession
(1) Miranda
Defendant and his brother Howard lived
on a farm near the scene of the crime.
{Pid Dee Pit parr Rtie ORT Ep REE reeReEE,
ek a he Sea a a oa as
146 Va.
of either “dangerousness” or “vileness” and
a statement that the jury has considered
evidence in mitigation of the offense. If
the jury is unable to agree upon the penal-
ty, the trial court is required to impose a
sentence of imprisonment for life.
When the jury recommends the death
penalty, the trial court must direct a proba-
tion officer to investigate the history of the
defendant and other relevant facts and
make a report to the trial court in accord-
ance with the provisions of Code § 19.2-299.
Under that statute, a copy of the report
must be made available to the defendant at
least five days before it is presented in open
court, and the defendant is guaranteed the
right to cross-examine the investigating of-
ficer and the right “to present any addition-
al facts bearing upon the matter which he
may desire to present.”
At the conclusion of this third hearing, if
the trial court determines that the death
penalty is not “appropriate and just”, it
may set aside the sentence of death and
impose a life sentence.
If the trial court affirms the death sen-
tence, the defendant is entitled to an appel-
late review of the sentence as a matter of
right, and the review is accorded priority on
our docket. In the course of this fourth
proceeding, this Court is directed to make
two determinations, viz., whether the sen-
tence was imposed under the influence of
passion, prejudice, or other arbitrary factor,
and whether, considering similar cases, the
penalty is excessive or disproportionate.
Having made these determinations, this
Court may affirm the death penalty or com-
mute it to life imprisonment.
To this statutory complex, defendant po-
ses a two-fold challenge. First, he main-
tains that, as applied to his ease, it offends
the ex post facto clauses of the federal and
state constitutions, U.S.Const, art. 1, § 10,
and Va.Const. art. 1, § 9. Second, he con-
tends that the statutory scheme is facially
unconstitutional under the Eighth and
Fourteenth Amendments.
Initially, we will summarize relevant de-
velopments in statutory and case law fol-
lowing the watershed decision in Furman v.
248 SOUTH EASTERN REPORTER, 2d SERIES
Georgia, 408 U.S. 288, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972). Furman held that a
statutory system which permits unbridled
discretion in the process of imposing the
death penalty violates the Eighth and Four-
teenth Amendments. Responding to Fur-
man in 1975, the General Assembly enacted
new statutes eliminating sentencing discre-
tion by making the death penalty mandato-
ry upon conviction of selected offenses.
Acts 1975, ec. 14, 15; Code §§ 18.2-1, et seq.
(Repl. Vol.1975).
Thereafter, in 1976 the United States Su-
preme Court decided five cases attacking
the constitutionality of death penalty stat-
utes. In Roberts v. Louisiana, 428 U.S. 325,
96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and
Woodson v. North Carolina, 428 U.S. 280, 96
S.Ct. 2978, 49 L.Ed.2d 944 (1976), mandato-
ry death penalties were declared to be a
constitutionally impermissible response to
Furman. In Jurek v. Texas, 428 U.S. 262,
96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Proffitt
v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976), and Gregg v. Georgia,
428 U.S. 158, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976), the Court decided that Furman did
not require that all sentencing discretion be
eliminated if the statutory system provides
adequate standards to guide the exercise of
that discretion.
In 1977, following the pattern approved
in Jurek, the General Assembly enacted the
statutory complex sub judice.
B. As Applied Constitutionality
The crime at bar was committed May 23,
1977. The statutes under which defendant
was convicted did not take effect until July
1, 1977. Defendant argues that Roberts
and Woodson rendered the mandatory
death provisions of Title 18.2 as enacted in
1975 (hereinafter, the 1975 law) “presump-
tively unconstitutional” and that, on the
date of the crime of which he was convict-
ed, the death penalty could not be imposed
in Virginia; that Title 18.2 as enacted in
1977 (hereinafter, the 1977 law) was not /
ameliorative because it increased the poten-
tial penalty; and that the application of the
/
SMITH v. COM. Va. 147
Cite as 248 S.E.2d 135
more onerous 1977 law to a crime commit-
ted before it became effective thus violated
the ex post facto clauses.
Manifestly, the alternative penalty provi-
sions of the 1977 law were less onerous than
the mandatory penalty provision of the 1975
law, and we do not agree that the 1975 law
was “presumptively unconstitutional” at
the time this crime was committed. In
Lewis v. Commonwealth, 218 Va. 31, 235
S.E.2d 320 (1977), the defendant argued
that Roberts and Woodson had invalidated
the provisions of Code § 53-291 which pre-
scribed a mandatory death penalty for the
killing by an inmate of an employee of a
prison. Noting that we had upheld the
constitutionality of that statute in Wash-
ington v. Commonwealth, 216 Va. 185, 217
S.E.2d 815 (1975), and Jefferson v. Com-
monwealth, 214 Va. 747, 204 S.E.2d 258
(1974), we held that, until we had formally
adjudicated a constitutional challenge, the
statute “stand{s], at least presumptively,
valid and enforceable.” Lewis, 218 Va. at
88, 235 S.E.2d at 324.
The United States Supreme Court
reached a similar conclusion from a compa-
rable predicate in Dobbert v. Florida, 432
U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344
(1977). Dobbert’s crimes antedated the
June 22, 1972 decision'in Furman, The
month following that decision, the Florida
Supreme Court held that Furman invalida-
ted the State’s death penalty statutes.
Donaldson v. Sack, 265 So.2d 499 (Fla.1972).
Later that year, Florida enacted the new
statutes under which Dobbert was convict-
ed. Dobbert claimed that there was no
“valid” death penalty “in effect” on the
date of his crime and that the application of
the new statutes to his case increased the
penalty and violated the ex post facto
clause. Rejecting that argument, the Court
said:
Whether or not the old statute would, in
the future, withstand constitutional at-
tack, it clearly indicated Florida’s view of
the severity of murder and of the degree
of punishment which the legislature
wished to impose upon murderers. The
statute was intended to provide maxi-
mum deterrence, and its existence on the
statute books provided fair warning as to
the degree of culpability which the State
ascribed to the act of murder.
Dobbert, 482 U.S. at 297, 97 S.Ct. at 2300.
There can be no doubt about Virginia’s
historical view of the gravity of premeditat-
ed murder; the death penalty has been on
our statute books since 1796. Given this
ancient prologue and in light of the statute
on the books on the date of the crime at bar
which, as we have said, was presumptively
valid and enforceable, we believe defendant
had “fair warning” of the consequences of
murder.
[25-27] We conclude, therefore, that
since the 1975 law was presumptively valid,
the 1977 law was ameliorative. When the
changes the subsequent law makes in the
prior law are ameliorative, there is no ex
post facto violation; the same is true when
the changes, though not ameliorative, are
merely procedural. Dobbert, 432 U.S. at
292, n.6, 97 S.Ct. 2290. Clearly, the changes
incorporated in the 1977 law were both
ameliorative and procedural. Prompted by
the teachings of Jurek, Proffitt, Gregg,
Roberts, and Woodson, the General Assem-
bly changed the 1975 law and established
new procedures to be employed in the sen-
tencing process to insure that the death
penalty would not be imposed in an arbi-
trary or capricious manner. We hold,
therefore, that the trial court committed no
constitutional error in applying the 1977
law to defendant’s case.
Aside from this constitutional challenge,
defendant invokes the provisions of Code
§ 1-16 (Repl.Vol.1973) which read in perti-
nent part:
No new law shall be construed to re-
peal a former law, as to any offense
committed against the former law, or as
to any . . .. punishment incurred
: or in any way whatever to af-
fect any such offense or . . . pun-
ishment so incurred save only
that the proceedings thereafter had shall
conform, so far as practicable, to the laws
in force at the time of such proceedings
PETTERS EET tee
140 Va. 248 SOUTH EASTERN REPORTER, 2d SERIES
to require the Commonwealth to prove the
negative, i, e., that the United States was
not deeded and did not accept exclusive
jurisdiction. Since defendant adduced no
evidence to show the affirmative, the pre-
sumption prevails and the trial court’s rul-
ing on the motion to dismiss was proper.
B. Change of Venue
In support of his motion for a change of
venue, defendant introduced numerous
newspaper clippings, transcripts of radio
broadcasts, and affidavits to show that the
news media had given extensive publicity to
the details of the crime with which he was
charged, to his earlier conviction of rape,
and to the “outbreak of rapes in the Wil-
liamsburg-college community.” Conceding
that a change of venue is within the sound
discretion of the trial court, Lewis v. Com-
monwealth, 218 Va. 31, 34, 235 S.E.2d 320,
322 (1977), defendant contends that the
publicity prejudiced his right to a fair trial
and that the trial court abused its discre-
tion.
Defendant does not dispute the factual
accuracy of the publicity. Nor does he
point to anything of record to indicate that
a single juror seated at trial was unable to
disregard the publicity and accord him a
fair trial. The burden of defendant’s com-
plaint is that the sheer volume of publicity
concerning so heinous a crime, committed
by a prior offender against a member of a
family prominent in the community, com-
pels a finding of unfairness. We disagree.
Petitioner’s argument that the exten-
sive coverage by the media denied him a
fair trial rests almost entirely upon the
quantum of publicity which the events
received. He has directed us to no specif-
ic portions of the record, in particular the
voir dire examination of the jurors, which
would require a finding of constitutional
unfairness as to the method of jury selec-
tion or as to the character of the jurors
actually selected. But . . . exten-
sive knowledge in the community of ei-
ther the crimes or the putative criminal
is sufficient by itself to render a trial
constitutionally unfair. Petitioner in this
case has simply shown that the communi-
ty was made well aware of the charges
against him and asks us on that basis to
presume unfairness of constitutional
magnitude at his trial. This we will not
do oe
Dobbert v. Florida, 432 U.S. 282, 303, 97
S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); see
also Greenfield v. Commonwealth, 214 Va.
710, 716-17, 204 S.E.2d 414, 419-20 (1974).
[3] We hold that defendant has failed to
show that he could not or did not receive a
fair trial in the jurisdiction in which he was
convicted, and we find no abuse of judicial
discretion in the trial court’s ruling.
C. Exclusion of Juror
The trial court excluded Mrs. Piggott as a
juror for cause related to her predisposition
against capital punishment. Relevant por-
tions of the voir dire are assembled at the
foot of this opinion as Appendix B.
[4] Veniremen may not constitutionally
be excluded for cause “simply because they
voiced general objections to the death pen-
alty or expressed conscientious or religious
scruples against its infliction”, Witherspoon
v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770,
1777, 20 L.Ed.2d 776 (1968), and exclusion
of a single venireman for such cause ren-
ders the death penalty constitutionally in-
firm, Davis v. Georgia, 429 U.S. 122, 123, 97
S.Ct. 399, 50 L.Ed.2d 339 (1976).
In support of his assignment of error to
the trial court’s ruling, defendant relies
principally upon portions of two footnotes
in Witherspoon :
Unless a venireman states unambiguously
that he would automatically vote against
the imposition of capital punishment no
matter what the trial might reveal, it
simply cannot be assumed that that is his
position.
391 U.S. at 516, n9, 88 S.Ct. at 1774.
The most that can be demanded of a
venireman . . ._ is that he be will-
ing to consider all of the penalties provid- /
ed by state law, and that he not be irrev- /
ocably committed, before the trial has
begun, to vote against the penalty of
SMITH v. COM. Va. 141
Cite as 248 S.E.2d 135
death regardless of the facts and circum-
stances that might emerge in the course
of the proceedings. .
{Nothing we say today bears upon the
power of a State to execute a defendant
sentenced to death by a jury from which
the only veniremen who were in fact
excluded for cause were those who made
unmistakably clear . . . that they
would automatically vote against the im-
position of capital punishment without
regard to any evidence that might be
developed at the trial
891 U.S. at 522, n.21, 88 S.Ct. at 1777.
The courts which have addressed the
question do not agree what effect these two
footnotes have upon the textual holding
that “general objections” to capital punish-
ment are not sufficient grounds to exclude
a venireman for cause. See 39 A.L.R.3d
550 (1971). In our view, footnote 9 means
that, absent an unambiguous statement of
absolute objection, the trial judge cannot
assume absolute objection. It does not
mean that, simply because there may be
some confusion and inconsistency in the
statements that were made, the trial judge
is foreclosed from determining from the
voir dire at large whether a juror would
“automatically vote against the imposition
of capital punishment”.
[E]ven though a prospective juror’s voir
dire answers to questions concerning his
beliefs as to capital punishment may be
equivocal and not models of clarity, it is
proper for the trial judge to excuse the
juror for cause when a contextual consid-
eration of the entire voir dire examina-
tion indicates that the juror could not
vote for a verdict which would result in
the imposition of the death penalty.
State v. Simmons, 286 N.C. 681, 688-89, 213
S.E.2d 280, 286 (1975), vacated on other
grounds, 428 U.S. 903, 96 S.Ct. 3207, 49
L.Ed.2d 1208 (1976).
While footnote 9 is merely a comment
parenthetical to the Witherspoon Court's
recitation of the proceedings in the trial
court, footnote 21 is keyed to and is a
corollary of the textual holding. Under the
holding and corollary read together, “gener-
al objections” to capital punishment are not «
constitutionally sufficient to justify the ex-
clusion of a juror for cause; nothing less
than an absolute objection, i. e., an irrevoca-
ble commitment to vote against the death
penalty, will suffice.
{5,6] Whether an exclusion is justified
under the Witherspoon test is a mixed ques-
tion of law and fact. Stated differently,
the question whether the venireman should
be excluded turns upon the question wheth-
er, in fact, he is “irrevocably committed”.
In order to apply the rule of law, the trial
court must first decide the factual question.
As fact-finder, the trial court must weigh
the meaning of the answers given in light
of the phrasing of the questions posed, the
inflections, tone, and tenor of the dialogue,
and the general demeanor of the prospec-
tive juror. We are aware that, while the
words employed may, when transcribed and
read in retrospect, appear ambivalent, the
judge who heard them uttered was unique-
ly positioned to assess their ultimate im-
port. Accordingly, his finding on this ques-
tion of fact will not be disturbed on appeal
unless, upon consideration of the voir dire
as a whole, we can say that the venireman’s
commitment against the death penalty was
not “unmistakably clear”.
The record of the voir dire shows that, in
response to several questions patently
phrased to elicit such a response, Mrs. Pig-
gott agreed that capital punishment might
“possibly” be appropriate in some cases. At
least six times, however, she stated positive-
ly, and with no ambiguity, equivocation, or
reservation whatsoever, that she could nev-
er, under any circumstances, vote to impose
the death penalty. In reply to the last two
questions put to her, she acknowledged
that, if defendant should be convicted, she
would vote for a “lifetime” penalty and
that she was “absolutely against the death
penalty”.
[7] In argument following the voir dire,
counsel agreed that the test for exclusion
was, not whether Mrs. Piggott was “against
the death penalty”, but rather whether she
was “absolutely against the death penalty”.
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144 Va. 248 SOUTH EASTERN REPORTER, 2d SERIES
Officer Dunford, who was aware of defend-
ant’s prior conviction of rape, and Officers
Gunson and Cumbee went to the farm and
asked Howard if they could talk with de-
fendant. Defendant was not there but, in
response to Howard’s telephone call, arrived
a short time later. Standing in a hallway
just inside the front door of the Smith
home, the officers questioned defendant as
he sat on the short staircase leading to the
kitchen. They told him they were investi-
gating the Weiler murder and asked him if
he “had done this thing”. Without any
foundation in fact, Dunford suggested that
defendant’s fingerprints and footprints had
been found at the scene of the crime.. La-
ter, while Dunford was in the kitchen talk-
ing with Howard, Gunson told defendant he
believed he was guilty and urged him to
confess and ease his conscience. The offi-
cers testified that, during the course of the
interrogation, which lasted for possibly 15
minutes, defendant made no inculpatory
statements. “He sat on the step with his
head bowed, looking at the floor and twirl-
ing the front of his hair with his forefing-
ers”, and, according to the officers, his only
responses were, “I know you would have
come to see me” and, “Do you think a
lawyer could help me?” At that point,
Gunson held up his hand and told defendant
not to say anything more. Cumbee read
the Miranda warnings twice, asked whether
defendant understood them, and defendant
acknowledged that he did. Defendant then
made an oral confession, showed the offi-
cers the scene of the crime, and pointed out
the place he had discarded the murder
knife. Later at the jail, defendant signed
the written confession introduced in evi-
dence.
Testifying solely in support of his motion
to suppress, defendant said that, during the
course of the initial interrogation, he had
told the police, “I’m the one.” This state-
ment, he insisted, was made only after the
investigation had “focused” upon him and
had become “accusatory” and before the
Miranda warnings were given. Therefore,
he contends, he was under “custodial inter-
rogation”, his inculpatory statement was
inadmissible under Escobedo v. Illinois, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(1964), and Miranda v. Arizona, 384 US.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
and his subsequent confession and all of the
evidence derived therefrom was “tainted”
under the rule in Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963).
[19-21] Miranda applies only where
there is “custodial interrogation”, i. e.,
“questioning initiated by law enforcement
officers after a person has been taken into
custody or otherwise deprived of his free-
dom of action in any significant way.” 384
USS. at 444, 86 S.Ct. at 1612. The fact that
the investigation had focused upon the sus-
pect and had become accusatory is not de-
terminative of the question of custody.
Jordan v. Commonwealth, 216 Va. 168, 772,
222 §.E.2d 573, 577, at n.1 (1976); ef. Beck-
with v. United States, 425 U.S. 341, 344-48,
96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). At the
time defendant says he made the first in-
criminating statement, he had not been “de-
prived of his freedom in any significant
way”. He was not under arrest; no physi-
cal restraint of any kind had been imposed;
and he was situated in a familiar, non-coer-
cive environment which he had entered of
his own accord. The trial court was not
bound to believe defendant’s testimony, but
even if the inculpatory statement he said he
made was made at the time he said, it was
not the product of custodial interrogation,
and we find no error in the trial court’s
ruling to that effect.
[22] We see no merit in defendant’s fur-
ther argument that “his waiver was not
voluntary because statements
made by the three police officers could rea-
sonably have been interpreted as offers of
psychiatric treatment.” It is true that the
police had discussed defendant’s need for
psychiatric help, but they testified unani-
mously and positively that no offers or
promises were made, and nothing defend- ,
ant said in the suppression hearing contra-
dicted that testimony. Nor do we believe
that the officers’ comments about the fin-
gerprints and footprints overbore defend-
SMITH v. COM. Va. 145
Cite as 248 S.E.2d 135
ant’s will and caused him to execute a waiv-
er and make a confession he otherwise
would have withheld. We conclude that
defendant’s waiver was voluntary and that
the trial court did not err in admitting his
confession.
(2) Admission of Prior Crime
Defendant’s confession included the fol-
lowing exchange:
Q. Why did you kill her?
A. All I could think about was going
back to the penitentiary. I was afraid
she could send me back.
Evidence of defendant’s prior criminal
record adduced at the penalty trial was
fully admissible. Code § 19.2-264.4B, C
(Cum.Supp.1977). | Defendant contends,
however, that the trial court should have
excluded this portion of his confession at
the guilt trial.
[23] Generally, evidence of prior crimes
is incompetent because it “confuses the is-
sue before the jury, unfairly surprises the
accused with a charge he is not prepared to
meet, and tends to prejudice him in the
minds of the jury”. Fleenor v. Common-
wealth, 200 Va. 270, 275, 105 S.E.2d 160, 163
(1958). ;
There are exceptions, however, to this
rule, as well established as the rule itself,
and such evidence may be admitted to
show motive, intent or guilty knowledge,
or when it is connected with or leads up
to the offense for which the accused is on
trial.
Roy v. Commonwealth, 191 Va. 722, 726, 62
S.E.2d 902, 903 (1951).
[24] Defendant freely admitted that his
reason for killing the woman he had raped
was to silence his accuser in order to avoid
the consequences of his crime. We hold
that his admission was fully competent to
show motive, intent, and premeditation.
III. CONSTITUTIONAL CHALLENGES
TO THE STATUTORY COMPLEX
A. Preface
The pertinent portions of the statutory
complex under which defendant was con-
248 S.E.2d—4
victed and this review was docketed appear
at the foot of this opinion as Appendix A.
A premeditated killing following rape is one
of the crimes denominated “capital mur-
der”, a class 1 felony punishable by death or
imprisonment for life. When an indictment
for a class 1 felony is tried by a jury, four
separate proceedings must be conducted be-
fore a sentence of death can be executed.
Three evidentiary hearings must be con-
ducted. In the first, the jury must deter-
mine the issue of guilt or innocence and
may convict the defendant of the crime
charged or a lesser-included offense. If the
defendant is convicted of a class 1 felony,
there must be a second trial by the same
jury to determine the issue whether the
penalty should be death or imprisonment
for life. Bearing upon that determination,
the jury may hear evidence concerning cir-
cumstances surrounding the offense, the
history and background of the accused, and
facts in mitigation of the offense. For
illustrative purposes and not by way of
limitation, five mitigating circumstances
are expressly listed.
The jury may not recommend the death
penalty unless the Commonwealth estab-
lishes one of two factors in aggravation of
the offense. The Commonwealth must
prove beyond a reasonable doubt either that
there is a “probability” that the defendant
would “commit criminal acts of violence
that would constitute a continuing serious
threat to society”, or that his conduct in
committing the crime was “outrageously or
wantonly vile, horrible or inhuman, in that
it involved torture, depravity of mind or an
aggravated battery to the victim.” Code
§ 19.2-264.2. It is clear from the statutory
context that, even when the Common-
wealth establishes either or both aggravat-
ing circumstances, the jury is at liberty, in
consideration of circumstances in mitiga-
tion, to recommend a sentence of imprison-
ment for life.
The penalty verdict must be in writing in
one of two prescribed forms—one for a life
sentence and the other for a death sentence.
The latter contains a recitation of a finding
