Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SATURDAY, August 5, 1995                   TAG: 9508070044
SECTION: VIRGINIA                    PAGE: C4   EDITION: METRO 
SOURCE: KATHY LOAN STAFF WRITER
DATELINE:                                 LENGTH: Medium

JUDGE HOLDS OFF DECISION IN DEATH PENALTY APPEAL

A federal judge in Roanoke ruled Friday that he will await a decision in an appeal of another Virginia death penalty case - in which a new sentencing hearing was ordered - before ruling on Eaton's petition.

Eaton was convicted in 1989 of killing State Trooper Jerry Hines in Rockbridge County. Hines was killed after pulling over Eaton's girlfriend, Judy Ann McDonald, on suspicion of drunken driving. Eaton was a passenger in the car.

Eaton, who pleaded guilty to killing McDonald about two hours later as the two were being pursued by Salem police, claims McDonald fatally shot the trooper. He also pleaded guilty to slaying his roommate, Walter Custer Jr., and neighbor Ripley Marston before Hines was killed. He received life sentences for those guilty pleas.

Eaton is seeking relief in federal court after several tries at the state level. In this petition, lawyers Ross Haine of Lexington and Jon Apgar of Roanoke argue that the jury should have been told that Eaton would not be eligible for parole if the panel opted to give him life in prison instead of the death penalty.

The attorneys say Eaton's prosecutor wrongly made statements in his closing remarks that could have led the jury to believe Eaton would one day be a free man if they did not sentence him to death. "The only legal basis presented in support of the death penalty was [Eaton's] future dangerousness," the lawyers maintained in court filings.

They claim Eaton's original lawyers gave ineffective counsel by not objecting to the prosecutor's statements about Eaton's future dangerousness and by presenting little evidence in his behalf at sentencing.

In U.S. District Court on Friday, the state sought to have Eaton's request thrown out.

Leah Darron, an assistant attorney general, argued that the jury knew Eaton had other life sentences, and that even if the jury was not told Eaton would not be eligible for parole if given a life sentence, that didn't have a substantial bearing on the jury's decision to impose the death penalty.

Virginia courts have held for many years that juries are not to consider parole eligibility when deciding an appropriate sentence.

Apgar was successful in his effort to get Judge Samuel Wilson to delay making a decision until the federal Fourth Circuit Court of Appeals decides issues raised in O'Dell vs. Thompson, in which a death row inmate in a Virginia Beach case won a new sentencing hearing.

Joseph Roger O'Dell III was convicted in 1986 of killing Helen C. Schartner, 44, and sentenced to death.

Last September, U.S. District Judge James R. Spencer in Richmond overturned O'Dell's death sentence and ordered a new sentencing. Spencer ruled O'Dell's rights were violated because the jury never was told that O'Dell would not have been eligible for parole if he received a life sentence.

The attorney general's office appealed. Apgar said the federal appeals court heard arguments on the case in April, and a decision is expected by October.

O'Dell relied on the case of Simmons vs. South Carolina, in which the U.S. Supreme Court ruled that when a defendant's future dangerousness is at issue and state law prohibits release on parole, juries should be informed the person is not eligible for parole.