ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, February 15, 1996 TAG: 9602150079
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: CHATHAM
SOURCE: TODD JACKSON STAFF WRITER
Kirby DeHart was back Wednesday where he was four years ago: facing a jury on a murder charge.
But this time, the stakes were different.
DeHart was convicted in 1992 of the murder of 81-year-old Effie Rakes. Rakes, a Franklin County widow, was found shot in the chest on the floor of her remote Shooting Creek home on June 7, 1991.
DeHart was sentenced to 27 years in prison for the killing and two related charges.
But the state Court of Appeals overturned DeHart's convictions in October 1994, saying the trial judge erred in not striking a potential juror who expressed doubt about her ability to serve without forming an opinion in advance. The woman was allowed into the required pool of 20 potential jurors, but later was struck by prosecutors - so she did not sit on the jury that convicted DeHart.
DeHart, 34, of Franklin County was released on bond last year to await his new trial.
He can receive no additional prison time if he's convicted again.
Prosecutors believe DeHart is being retried on a technicality that they say is essentially a waste of taxpayer's money.
Technicality or not, DeHart has a second chance.
He sat in the courtroom Wednesday morning wearing a gray suit and paisley tie listening as his lawyer, Tom Blaylock, pounded home a point to a group of potential jurors.
"Do you agree that the presumption of innocence is the fundamental basis for the legal system in this country?" Blaylock asked.
"Yes," the group responded in unison.
A jury that is not aware of DeHart's prior conviction was selected Wednesday.
The prosecution - Franklin County Commonwealth's Attorney Cliff Hapgood and Martinsville attorney Ben Gardner - began its case Wednesday afternoon, using testimony from eight witnesses, all of whom testified at DeHart's 1992 trial.
The Rakes family hired Gardner to assist Hapgood. In 1992, the family hired David Melesco - now a Franklin County juvenile court judge - to help Hapgood.
The case presented so far is the same one presented in 1992. DeHart was convicted on circumstantial evidence: His fingerprints were found on a beer can inside Effie Rakes' home and on the outside of a window on the side of the house.
The beer can was found on a chair inside the room of Gerene Rakes, Effie Rakes' invalid daughter.
Hapgood and Melesco told jurors in 1992 that Effie Rakes had discovered her killer trying to molest her daughter, who was 55 at the time.
The shot that killed Rakes was fired outside the house, through a window to the kitchen. The murder weapon was never found.
According to testimony, Gerene Rakes, who cannot talk and has almost no bodily movement, was wearing a diaper that was pulled down when family members found Effie Rakes' body.
Pauline Rakes Spencer, another of Effie Rakes' nine children, testified Wednesday that she arrived at her mother's house that morning, entered her sister's room, and found her sister lying on her hospital bed alert and awake, but with her genitals exposed.
Spencer, who had helped her mother care for Gerene Rakes for decades, said her sister had never managed to push the diaper down herself.
A Rocky Mount doctor who examined Gerene Rakes in 1992 said Wednesday that she is incapable of reaching her own diaper.
In addition to second-degree murder, DeHart was convicted in 1992 of breaking and entering to commit sexual battery.
Blaylock, in his opening statement Wednesday, said the breaking and entering charge was filed eight months after DeHart was charged with murder.
Medical tests conducted on Gerene Rakes on June 7, 1991, found no evidence of sexual penetration, Blaylock said Wednesday.
Because the prosecution didn't have a motive for the murder of Effie Rakes, they used the diaper to formulate one, he said.
DeHart's trial will continue today.
It is being held in Pittsylvania County because of publicity about the case in Franklin County - publicity that Blaylock has called excessive.
Retired Roanoke County Judge Kenneth Trabue is presiding over the new trial. Franklin County Circuit Judge B.A. Davis III disqualified himself because he represented DeHart's father as a defense attorney years ago.
The Rakes family - many of whom still live in the mountains of Endicott - turned out 30 strong Wednesday, filling one side of the courtroom.
A handful of DeHart's family and friends sat on the other side.
In what could be an ironic twist in the case, Hapgood said one of DeHart's uncles might be called to testify before the trial is over.
The uncle is married to one of Effie Rakes' daughters.
LENGTH: Medium: 92 lines ILLUSTRATION: PHOTO: DON PETERSEN/Staff. Kirby DeHart, arriving at theby CNBcourthouse with his wife, Molly, is being retried in the killing of
a Franklin County widow. color. KEYWORDS: FATALITY