Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, October 19, 1994 TAG: 9410190072
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: TODD JACKSON STAFF WRITER
DATELINE: ROCKY MOUNT LENGTH: Medium
Kirby DeHart, convicted of murdering 81-year-old Effie Rakes in 1991, will get a new trial if a state appeals court decision stands.
Franklin County Commonwealth's Attorney Cliff Hapgood, who prosecuted DeHart, leaned against a desk in his office and shook his head. Across the room, Franklin County Sheriff Quint Overton sat in a chair. His reaction was no different.
"It's upsetting," Overton said. "What can law-abiding citizens expect anymore?"
Tuesday's decision reminded Hapgood all too well of a recent one.
Just over a month ago, he was angered by the reversal of another murder conviction he had won.
On Aug. 25, U.S. District Judge James Turk overturned the capital murder conviction of Walter Correll Jr., who had been convicted of robbing and killing Franklin County resident C.W. Bousman Jr. near Smith Mountain Lake in August 1985.
"I'm mad as hell," Hapgood exclaimed, pacing. "What's next? We don't have many convicted murderers left."
Hapgood said the state attorney general's office will ask to have the DeHart appeal heard by the full nine-judge Appeals Court.
In an opinion without dissent, a three-judge panel of the court ruled Tuesday that a Franklin County judge erred in refusing to strike a potential juror for DeHart's 1992 trial.
During jury selection, the woman expressed doubt when asked by defense attorneys if she could base her decision on evidence presented instead of what she had read in the newspapers.
The woman was accepted into the required pool of 20 possible jurors. But she was later struck from the pool by prosecutors using the first of the four disqualifications given to each side in jury trials.
The appeals court decision says DeHart's rights were violated because there was not a pool of 20 impartial jurors.
"The law doesn't say you get 19, plus one juror that's not qualified," said DeHart's attorney, Tom Blaylock of Roanoke.
Blaylock, who argued the appeal in front of the panel in June, said he spoke with DeHart on Tuesday.
"Obviously, he's very happy about the decision," Blaylock said.
The attorney said he will ask for bond if DeHart is granted a new trial.
Effie Rakes' daughter, Victoria Turman, said she spent Tuesday afternoon calling people - including Hapgood - to try to make some sense out of the decision.
"Nobody can explain it," she said. "The family thinks it's insane."
The Rakes murder was a highly publicized case in rural Franklin County.
The widow was found shot to death on the floor of her remote Shooting Creek home in June 1991. She had raised nine children and was still taking care of an invalid daughter when she was murdered.
The jury that convicted DeHart heard prosecutors recount that Rakes had caught her killer trying to sexually molest her daughter, then 55 years old and unable to talk.
DeHart was sentenced to 27 years in prison for second-degree murder and two related charges.
by CNB