DATE: Monday, August 18, 1997               TAG: 9708180085

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY LAURA LaFAY, STAFF WRITER 

                                            LENGTH:   90 lines

INTERVENTION SEEMS UNLIKELY FOR CONDEMNED PORTSMOUTH KILLER

A Portsmouth man who begged a ride from a prostitute and her sister, shared a bottle of wine with them and then shot them both, will die by lethal injection Tuesday.

Barring clemency from Gov. George F. Allen or a last-minute stay by the U.S. Supreme Court - both unlikely events - Carlton Jerome Pope, 35, will die at 9 p.m. for the murder of Cynthia Lee Gray, whom he shot in the face on Jan. 12, 1986.

According to testimony at Pope's trial, Gray, 24, met Pope outside of Nick's Pool Hall in downtown Portsmouth, where she had driven with her sister, Marcie Ann Kirchheimer, 31. The two women were looking for Kirchheimer's ex-boyfriend, but the pool hall was closed.

Pope, who had been standing across the street, told them the ex-boyfriend had left. He asked for a ride home.

After a detour to the home of the ex-boyfriend's mother, the three arrived at Pope's home on Bagley Street in Portsmouth. At that point, Kirchheimer testified, Pope got out of the car, pulled a pistol and shot them both.

Gray died on the way to Portsmouth General Hospital. Kirchheimer, shot in the neck, survived.

U.S. District Judge Robert L. Merhige vacated Pope's death sentence in January 1996 and ordered a new trial. But the 4th U.S. Circuit Court of Appeals reversed Merhige's decision in May, and there was no new trial.

Of the 12 men most recently executed in Virginia, six were initially awarded new trials because of questions about the constitutionality of their trials. In each case, however - as with Pope's - all the decisions were reversed on appeal by the 4th Circuit.

While, nationally, about 40 percent of death sentence cases are reversed on appeal, the 4th Circuit has not reversed a Virginia conviction since the death penalty was reinstated in 1976.

Among the issues argued by Pope's lawyers on appeal was that prosecutors ``knowingly introduced'' false testimony about robbery in the case - a key element of the capital murder charge - and that they withheld evidence favorable to Pope.

Most of that testimony came from Kirchheimer, a Virginia Beach woman who admitted under cross-examination at Pope's trial that she had two prostitution convictions and one conviction for possession of dangerous drugs.

Kirchheimer testified that, although she never saw Pope take her sister's purse, she knew that her sister had a purse that night and that it was missing after the shooting.

She knew this, she testified, because her sister had written a check earlier in the day and then returned the checkbook to the purse.

Five years later, however, after Judge Merhige ordered prosecutors to show their notes to Pope's lawyers, the lawyers found that the check written by Gray that day did not match checks from the checkbook found on the floor of the car.

Four years after that, Pope's lawyers were allowed to see prosecutors' notes indicating that Kirchheimer had taken heroin during the weekend of the murder and had consumed six or seven beers just before it.

This information, the lawyers later argued, undermined both Kirchheimer's credibility and Pope's capital murder conviction. In order to support such a conviction, they say, prosecutors had to prove robbery.

``There really is no proof that anything was taken at all,'' said John Parry of the Washington, D.C.-based law firm Williams & Connolly.

``All we have to back that up is Marcie Kirchheimer's statement. But we know she was drunk and we know that she lied. She was in no way a reliable or a credible witness.''

Judge Merhige ruled that the claims about false testimony were immaterial. Instead, he ordered a new trial because, he said, a Virginia Supreme Court opinion in the case violated Pope's right to due process. That opinion was based on a ``novel and unforseeable interpretation of state law,'' according to Merhige. The interpretation - that the taking of Gray's purse was part of the ``same criminal enterprise'' as her murder - was used to affirm Pope's conviction.

Lawyers for Virginia argued that Merhige was wrong to ``second-guess the Virginia Supreme Court on its interpretation of state law.'' In addition, they said, there was plenty of evidence to show that Pope committed robbery.

Ronald Reel, an assistant Portsmouth commonwealth's attorney who wrote an appellate brief in the case, called Pope's arguments ``gross speculation.''

``The accusations they make are cut from whole cloth,'' he said. ``They're just grasping at straws. There's no proof any of this happened.''

Pope's lawyers filed a clemency petition Friday and plan to meet with Mark Christie, the governor's lawyer, today. MEMO: Staff Writer Janie Bryant contributed to this report.

FOCUS: Delays iin death penalty casse tie victims' families in knots/A4

Children in pacifist community plan march against capital

punishment/A6

Virginia death row inmate could be granted a new trial./B10

ILLUSTRATION: Carlton Jerome Pope KEYWORDS: DEATH ROW CAPITAL PUNISHMENT

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