Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, June 26, 1990 TAG: 9006260279
SECTION: VIRGINIA PAGE: B-2 EDITION: METRO
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
The court left intact a ruling that Wilbert Lee Evans' rights were not violated when he was resentenced to death after his original death sentence for killing a deputy sheriff was thrown out.
The justices also refused to hear arguments that Herman Barnes was denied effective legal help and a full opportunity to challenge his conviction for killing two people during a 1985 store robbery in Hampton.
Barnes was convicted of killing owner Clyde Dewey Jenkins and employee Mohammad Afifi during a June 27, 1985, robbery of a grocery store that was just about to close for the night.
Evans was convicted of fatally shooting William Truesdale on Jan. 27, 1981, while the deputy was escorting him from a North Carolina prison to testify in Alexandria, Va.
He was sentenced to death in 1981. But nearly two years later prosecutors admitted that, although unknown to them at the time, the sentence was based on erroneous evidence of his prior convictions.
A judge threw out the death sentence, but in March 1984 a jury again recommended capital punishment because of Evans' "future dangerousness."
Virginia enacted a law in March 1983 to permit a second death sentence when a death penalty is overturned because of sentencing errors.
Evans contended that the law unconstitutionally was applied retroactively to him. Without the law, his sentence automatically would have been reduced to life in prison.
But the 4th U.S. Circuit Court of Appeals ruled that applying the new law to Evans was fair because at the time he killed Truesdale he knew he could be sentenced to die.
"Fair warning of punishment was thus afforded," the appeals court said. He "was on notice when he murdered Deputy Sheriff Truesdale that the imposition of death was a possible penalty."
Evans also said that the jury that sentenced him to death the second time was misled by the trial judge.
The jury asked the judge what would happen if it split over the punishment for Evans. Rather than tell the jurors a split decision automatically would mean a life prison sentence, the judge said their "verdict must be unanimous as to either life imprisonment or death."
The 4th Circuit court said the judge had no obligation "to inform the jury of the ultimate result should they fail to reach a verdict."
The court also rejected Evans' argument that prosecutors violated his rights by failing to disclose for two years that his first sentence was based on erroneous evidence. The appeals court said prosecutors acted in good faith and were not aware of the errors.
Evans also disputed the jury's finding that he is a danger to society.
He said that shortly after he was resentenced he helped head off violence when other prisoners at the Mecklenburg Correctional Center seized 14 guards as hostages. Evans said the hostages credited him with saving their lives.
by CNB