Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, July 14, 1995 TAG: 9507140052
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Medium
Robert M. May will not have to enter a plea to a capital murder charge before his trial begins, despite a Roanoke prosecutor's argument that the mass-murder suspect has been sending mixed messages about his intentions.
At a hearing Thursday in Roanoke Circuit Court, Judge Clifford Weckstein denied a motion by prosecutors that May be arraigned at least seven days before the start of his July 31 trial.
May has indicated that he will plead guilty to killing five people in a burst of gunfire at a New Year's Eve party in Old Southwest, Commonwealth's Attorney Donald Caldwell said.
But in an interview aired last month by a Roanoke television station, May essentially repeated what he had told police earlier - that he shot in self-defense after a gun was pulled on him during a drunken argument.
Caldwell had filed a motion calling the two positions "mutually inconsistent," and asked that May be forced to enter a plea early so that prosecutors can have time to prepare for trial if necessary.
Even if May does plead guilty, Caldwell said, his statements to the contrary during the television interview should be considered by the judge in deciding whether the plea was made voluntarily.
"If he's hedging his bets by saying, 'Yes, I'll plead guilty, but I acted in self-defense,' then this case needs to be submitted to a jury," Caldwell said.
But in denying the motion, Weckstein cited a U.S. Supreme Court case in which a capital murder defendant who said he was innocent was allowed to plead guilty in order to avoid the possibility of a death sentence. That case, North Carolina vs. Alford, has led to so-called "Alford pleas" in which defendants plead guilty while maintaining their innocence.
Public Defender Ray Leven had opposed Caldwell's motion, taking particular exception to a phrase that suggested May is improperly attempting to "mitigate" his actions.
"We are absolutely and positively proceeding to mitigate in this case," Leven said. "And under no circumstances, whether it's a plea of guilty or not guilty, will I accept the idea that a defendant cannot mitigate his culpability."
May, 27, has said that he was drinking heavily the night he dropped in on a New Year's Eve party that neighbors were having behind his Highland Avenue home. He told police he shot three men and two women after a gun was pulled on him during an argument about which branch of the military - the Navy or the Marines - was tougher.
Caldwell said May's version is a "fairy tale" compared to the evidence prosecutors plan to present. Police have said that they found no indication of a gun having been pulled on May.
May, an alcoholic house painter, is accused of killing Dale Arnold, 36, and Susan Hutchinson, 44, in an upstairs carriage house apartment they shared, and their party guests - Cynthia LaPrade, 43; Daniel Mason, 47; and Carl Stroop, 42.
No agreements have been reached in the case, meaning that if May pleads guilty to capital murder, Weckstein will decide whether to sentence him to life in prison or death.
In other developments in the case Thursday:
Weckstein approved a request by prosecutors to have May examined by a psychiatrist. Defense lawyers already have said they may rely on testimony from a mental health expert in the sentencing phase of the trial, and prosecutors want a second opinion from their own expert.
Caldwell said he will ask Weckstein to view the tape of May's interview with WDBJ (Channel 7) in the event he pleads guilty. Prosecutors have subpoenaed the tape and reporter Kim Wheeler, who interviewed May by telephone. Jim Kent, news director for the television station, said the station is willing to turn over the broadcast tape, but may challenge the subpoena of Wheeler.
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