THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Tuesday, August 30, 1994 TAG: 9408300383
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY ROBERT LITTLE, STAFF WRITER
LENGTH: Medium: 83 lines
A federal judge, in overturning the death sentence of a man convicted of murdering a Portsmouth department store manager nine years ago, says Suffolk Commonwealth's Attorney C. Phillips Ferguson ``violated the moral standards of fair play'' during the man's sentencing hearing.
U.S. District Court Judge James R. Spencer late last week ordered that Coleman Wayne Gray, who has been on Virginia's death row since his 1985 conviction, should receive a new sentencing hearing within 180 days.
In a 20-page opinion, Spencer was critical of Ferguson's handling of the case, saying he ``ambushed'' defense attorneys with evidence that Gray committed two other murders with which he was never charged.
That evidence, which included graphic pictures of the victims and details of their autopsies, was a key element in showing Gray's ``future dangerousness.'' If Ferguson had not ``surprised'' defense attorneys with the evidence, the jury might not have called for the death sentence, Spencer wrote.
Ferguson called the opinion ``just plain wrong'' and said he expects it to be overturned on appeal. Judges in three other courts have rejected Gray's appeal, Ferguson pointed out.
``I think what you have here is a judge who doesn't want Virginia's death penalty statute to be carried out,'' said Ferguson, who still serves as Suffolk's chief prosecutor.
``I think he was dead wrong, and so does the Attorney General's Office.''
A spokesman for the state Attorney General's Office would not comment on the ruling, except to say that it will be appealed to the 4th U.S. Circuit Court of Appeals.
A Suffolk Circuit Court jury convicted Gray on Dec. 5, 1985, of murdering Richard M. McClelland, who was a Franklin resident and manager of a Portsmouth Murphy's Mart.
Gray and an accomplice, Melvin G. Tucker, abducted McClelland before midnight May 2, 1985, forced him to open his store and stole about $12,000 in cash and merchandise. They then drove McClelland to the Tidewater Community College campus in northern Suffolk, where he was found dead the next morning with six .32-caliber bullet holes in his head.
Both Gray and Tucker were indicted for capital murder, but Tucker's charge later was reduced to first-degree murder when he agreed to testify that Gray was the triggerman. Gray maintains Tucker pulled the trigger.
According to Spencer's opinion, Ferguson told defense attorneys that he planned to introduce evidence at the sentencing phase of the trial that Gray had admitted killing Lisa and Shanta Sorrell. A year earlier, the mother and daughter were abducted from Greenbrier Mall in Chesapeake and were found dead in their car. Lisa Sorrell had six .32-caliber bullets in her head.
But Ferguson also arranged to show graphic photographs and to have a medical examiner and a police officer testify about the Sorrell murders, Spencer wrote, and did not tell defense attorneys until the night before the hearing.
Gray's constitutional right to due process was violated and his sentencing hearing was ``fundamentally and irreparably unfair,'' Spencer wrote.
Ferguson said he could not remember specific details, but he said Monday that he disclosed all the evidence he used during sentencing - even though he was not required to under state law.
For nine years, Gray's attorneys have argued in state and federal courts, without success, that his sentencing was unfair. They also claimed that Ferguson withheld evidence that would help exonerate Gray and that one witness used to convict him lied on the stand.
The Suffolk Circuit Court, the Supreme Court of Virginia and the U.S. Supreme Court all denied Gray's appeals.
Gray's was the second death penalty case overturned by Spencer this year. He also ordered a new sentencing hearing for Herman Charles Barnes, who was convicted of killing a Hampton grocer in June 1985. ILLUSTRATION: Photos
Gray
Ferguson
THE Judge SAYS: A jury might have decided against the death penalty
for Coleman Wayne Gray if Commonwealth's Attorney C. Phillips
Ferguson had not surprised defense attorneys with evidence.
KEYWORDS: MURDER CAPITAL PUNISHMENT SENTENCING by CNB