ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, April 4, 1996 TAG: 9604040088
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: Associated Press
A federal appeals court on Wednesday upheld the death sentence imposed on the last surviving member of a six-inmate gang that pulled off the largest death-row escape in U.S. history.
Lem Tuggle won an 11th-hour stay of execution in September from the U.S. Supreme Court. The high court ruled a month later that the 4th U.S. Circuit Court of Appeals and the Virginia Supreme Court had wrongly upheld Tuggle's death sentence without giving proper consideration to sentencing errors.
The high court sent the case back to the 4th Circuit for review. But the appeals court ruled unanimously that Tuggle's sentence should stand, saying the errors did not have a ``substantial and injurious effect or influence'' on the jury's decision. That standard was set in a previous case.
On appeal, Tuggle's attorney argued that the death sentence was imposed improperly because during the trial Tuggle was not allowed to hire a state-subsidized psychologist who might rebut testimony of an expert for the prosecution that Tuggle had a ``high probability of future dangerousness.''
That factor was one of two ``aggravating circumstances'' the sentencing jury used to justify capital punishment instead of life in prison. The other aggravating circumstance was its finding that the crime was particularly vile.
Tuggle's attorney, Timothy Kaine, did not immediately respond to a request for comment. Tuggle could petition the full appeals court for a rehearing of the case.
Tuggle was convicted of capital murder for the 1983 rape and killing of Jessie Geneva Havens in Smyth County. Havens, 52, and Tuggle had met at a dance. She was shot in the chest and thrown down an embankment.
The crime occurred four months after Tuggle was paroled from a sentence he was serving for the 1971 murder of a 17-year-old girl.
Tuggle and five other death-row inmates escaped from the Mecklenburg Correctional Center in 1984 after posing as guards. All six were recaptured within a month, and the five other inmates since have been executed.
Wednesday's decision was written by Judge Clyde H. Hamilton. He was joined by Judge H. Emory Widener Jr. and Judge Robert F. Chapman.
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