Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, July 14, 1990 TAG: 9007140210
SECTION: NATL PAGE: A-1 EDITION: STATE
SOURCE: MARK MORRISON STAFF WRITER
DATELINE: LENGTH: Long
A judge may well impose that recommendation at Strickler's sentencing in late August.
But whether that sentence is carried out will be left in the hands of the Virginia Supreme Court, a body that recently overturned a death sentence in a case strikingly similar to Strickler's.
At issue in both cases is the so-called "trigger-man" rule, which says that only the person who actually commits a murder can be convicted of capital murder and sentenced to death.
Any accessory in a killing can be charged only with first-degree murder, according to Virginia law. And suspicion of guilt, no matter how strong, is not enough for a capital murder conviction.
Strickler was convicted in Augusta County for the January abduction, robbery and capital murder of Whitlock, a James Madison University student from Roanoke.
The circumstances surrounding Strickler's crime are similar to one in Arlington County, where John Cheng was sentenced to death for the 1988 kidnapping, robbery and killing of McLean restaurant owner Hsiang "Freddie" Liu.
In Cheng's case, the state Supreme Court ruled that there was not enough evidence to prove beyond a reasonable doubt that Cheng fired the fatal shots.
The facts presented at Cheng's trial indicate that he was involved in Liu's kidnapping, robbery and shooting, but none of the evidence introduced absolutely placed the murder weapon in Cheng's hand.
Similarly, the facts presented at Strickler's trial indicate that he was involved in Whitlock's kidnapping, robbery and slaying, but there also was no evidence placing the murder weapon - a 69-pound rock - in his hands.
Augusta County Commonwealth's Attorney A. Lee Ervin argued that it took two people, Strickler and another man, to commit the murder - one to hold Whitlock down while the other dropped the rock on her head several times.
Cheng had been seen with a .32-caliber semiautomatic pistol the day before the murder and had plotted the robbery with two other men.
However, it remains unclear whether or not his accomplices participated in Liu's killing.
In jail, Cheng told a deputy sheriff that "he had to do it because [Liu] had put the contract on."
Also, a blood-soaked piece of paper was found in the car beneath Liu's head. On it was written Cheng's name, address, telephone number and license plate number.
Ashes from a half-smoked Marlboro cigarette, the brand Cheng smokes, were left in the dashboard ashtray of the Cadillac.
The night of Whitlock's murder, a woman overheard Strickler and another man, Ronald Lee Henderson, discussing kicking "it" and using a "rock crusher" on it so it wouldn't give them any more trouble.
She also testified that Strickler called "it" a "nigger."
In addition, hairs matching Strickler's were taken from Whitlock's shirt and bra, and blood stains were found on his shirt.
In both cases, the convicted killers were described as ringleaders: Cheng masterminded the Liu robbery, and according to an eyewitness, Strickler initiated Whitlock's kidnapping.
He forced his way into her car and was seen driving her car. He also was the one who tried to use her credit card while in Virginia Beach.
That was enough to convince jurors in Augusta County to convict Strickler of capital murder. Jurors in Arlington County were equally convinced of Cheng's guilt.
But the state Supreme Court disagreed with the Cheng verdict and ordered a new trial.
Justice Roscoe B. Stephenson Jr. wrote in his majority opinion that the evidence created only a strong suspicion that Cheng was the trigger man. It did not clearly identify Cheng.
A second trial for Cheng on first-degree murder charges has yet to be scheduled.
Defense attorneys for Strickler have argued the same. They say there is no proof that Strickler actually dropped the rock on Whitlock and point out that it could have been Henderson.
Henderson also has been charged with capital murder, abduction and robbery. He was arrested last week in Oregon and is fighting extradition to Virginia.
Legal experts agree it's a close call.
"If the [possibility that the] other guy picked up the rock is viewed as a reasonable alternative, then the court could overturn it. The law is clear on that," said J. Lloyd Snook, a Charlottesville defense attorney who is an expert in capital cases.
A Richmond defense attorney who specializes in capital cases added that holding a person down while someone else does the killing is not enough to find someone guilty of capital murder.
"You have to deal the blows to be the trigger-man," he said. "His holding her is not what killed her."
Based on that argument, both attorneys agreed that the state Supreme Court has no alternative other than to reverse Strickler's capital conviction.
Still, the odds are against it being overturned.
In the past 10 years, the justices have reversed only five capital murder decisions out of the 50-plus appeals they have heard.
Ervin believes his case against Strickler will stand.
He cited the statements made by Strickler referring to "it," the blood found on his shirt, the hair found at the murder scene and testimony that Strickler's knuckle was freshly skinned on the night of Whitlock's death.
The wound, he argued, could have been caused when Strickler struggled to lift the boulder-sized rock out of the frozen ground.
"You put those four things together and I think it's clear that he jointly killed her," Ervin said. "Plus, the evidence shows that he was the aggressor in this case, and you've got the size of the rock itself."
A second trigger-man ruling also can be used as a point of reference on the merit of Strickler's appeal.
In 1979, the state Supreme Court overturned the conviction and death sentence of Major Henry Johnson Jr. for the murder of Roanoke Realtor John N. Gardner in 1977.
Gardner was shot three times in the head during a robbery by Johnson and his brother, David Allen Johnson.
Major Johnson was convicted, but the verdict was reversed because the jury was improperly instructed. The jury was told it could find him guilty of capital murder even if he had not pulled the trigger on the gun that killed Gardner.
The Johnson brothers each tried to pin the murder on the other during the trial.
At a second trial, Major Johnson again was tried on capital murder charges, this time with proper jury instruction.
David Johnson, however, had already pleaded guilty to first-degree murder by this time and had been sentenced to 52 years in prison.
He testified the second time around that he, not his brother, fired the fatal shots.
The second jury convicted Major Johnson of capital murder, but couldn't decide on whether to sentence him to death or life imprisonment. He was eventually given life in prison, the sentence always received in a capital murder case when a jury deadlocks over sentencing.
Johnson's public defender, Clifford Weckstein - now a Roanoke Circuit Court judge - said the state Supreme Court could rule either way in Strickler's case.
Weckstein believes the Johnson and Cheng rulings certainly will have an impact on how the justices decide Strickler's appeal, but he said neither case had precisely the same issues at stake.
"It should be interesting," he said.
Roanoke Commonwealth's Attorney Donald Caldwell went one step further, saying the justices could use Strickler's appeal to soften or refine the application of the trigger-man rule.
"It seems senseless to allow two people to abduct a woman in broad daylight, rob and rape her and then argue that only the one who actually picks up the rock should be liable for the death penalty," Caldwell said.
by CNB