ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, February 18, 1996 TAG: 9602190065
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
DATELINE: CHATHAM
SOURCE: TODD JACKSON STAFF WRITER
Kirby DeHart was convicted of the murder of an 81-year-old Franklin County widow for a second time Saturday, but it's possible he'll serve a short prison sentence.
A jury deliberated two hours and found DeHart guilty of the June 1991 murder of Effie Rakes. He also was convicted of using a gun to commit murder and breaking and entering to commit sexual battery.
Prosecutors told the jury that DeHart climbed in a window of Rakes' remote Endicott home and was attempting to molest her invalid daughter, Gerene, then 55.
Effie Rakes caught DeHart in the act, and he shot her when she went to get a revolver and try to call for help.
DeHart, who grew up next to Rakes and knew the family well, allowed Gerene Rakes to live because of her severe mental retardation and inability to speak, prosecutors said.
In his closing argument, prosecutor Ben Gardner tried to paint a picture of DeHart's character.
Gardner referred to DeHart's testimony Thursday, in which Gardner peppered him with questions.
"You went in that house to do something to Gerene, didn't you?" Gardner asked.
"She's not my type," DeHart replied.
Upon finding DeHart guilty, the jury recommended a sentence of 17 years in prison - a decision that disgusted members of the Rakes family. DeHart could have been sentenced to a maximum of 27 years.
DeHart was convicted in 1992 for the killing and the two related charges and was given a 27-year prison sentence.
The convictions were overturned and a retrial was ordered by the state Court of Appeals in 1994 based on what the court believed was a violation of DeHart's rights: A possibly biased person was included in the pool of jury candidates for his trial, although the woman did not actually serve on the panel that convicted him.
The jury for the retrial was unaware of his prior convictions and the fact that he had spent three years in prison - time that will count toward the 17 years - prior to his release on bond last June.
Saturday's bottom line: DeHart's prison time will be greatly reduced. And because he's incarcerated under Virginia's old sentencing guidelines, he could be eligible for parole as early as this year.
"He's been found guilty for this heinous crime now by 24 [jurors]," said Franklin County Commonwealth's Attorney Cliff Hapgood. "The fact that we had to do this a second time is hard to understand, anyway. There's no truth to the rumor that I'm going to run for the General Assembly so I can try to abolish the Court of Appeals."
Several members of the Rakes and DeHart families left the packed Pittsylvania County Courthouse in tears Saturday.
The lead investigator in the case also was upset with the verdict.
Lt. Charles Wagner of the Franklin County Sheriff's Office grew up in the Endicott mountains, which border Floyd and Patrick counties. He was assigned to the case because of his ties to the Rakes family and his knowledge of the people who live in the Endicott area.
"The Rakes family is taking this very hard," he said.
Members of the Rakes and DeHart families said little to the media during DeHart's three-day trial.
But Wagner said he spoke with a relative of DeHart's after Saturday's decision.
"She told me that it's a shame that there's no justice in this town. And I said, `Yeah, you're right. He should have gotten life.'''
DeHart was convicted on circumstantial evidence: His fingerprints were found on a beer can inside Gerene Rakes' bedroom and on the outside of a window to the room.
DeHart pointed a finger at a friend, Durrell Whitlock.
DeHart had testified that the beer can found in Gerene Rakes' room was one he gave a friend, Durrell Whitlock, the morning of June 6.
Whitlock committed suicide a few weeks after Rakes' murder, according to testimony. His fingerprints were not found on the beer can, and investigators never considered him a suspect.
Regarding the fingerprint on the window, DeHart testified he made a trip to Rakes' home in the spring of 1991, but no one was home. He said he walked around the side of the house "to take a leak," and must have left his fingerprints on the window then.
DeHart's attorney, Tom Blaylock, said the fingerprint evidence was hard to overcome.
He said he's disappointed that DeHart was convicted again, but when the 10-year reduction in his prison time is weighed, then "deep down, I'm not sad."
DeHart was denied bond, and a sentencing hearing is scheduled this week.
The trial was held in Pittsylvania County because of publicity surrounding the case in Franklin County.
LENGTH: Medium: 95 lines ILLUSTRATION: PHOTO: File/1995. Kirby DeHart, walking with his wife, Molly,by CNBwas found guilty of the June 1991 murder of widow Effie Rakes a
second time Saturday. color.