ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, December 9, 1996 TAG: 9612090119
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: MARION
SOURCE: PAUL DELLINGER STAFF WRITER
THE FAMILIES of Lem Tuggle's victims have seen him survive three execution dates. This Thursday may be his last.
It has been 12 years since Lem Davis Tuggle Jr. was sentenced to be executed for the 1983 murder of a Smyth County woman. On Thursday, it appears, he will keep that appointment.
It is Tuggle's fourth scheduled date with death. Three times before, he has received a stay of execution while his appeals were argued.
Relatives of Tuggle's victims - Jessie Geneva Havens, 52, shot to death in 1983, and Shirley Mullins Brickey, 17, choked to death in 1971 - say they have been tired out by the process. Tuggle was on parole from his sentence in the Brickey case when he killed Havens.
Both cases have had massive publicity in Smyth County over the years; but even here in the county seat, the pending execution is not a hot topic of conversation. It has been off-again, on-again too many times, people say.
"I don't hear a great deal about it," said Leo Ferrell, owner of Leo's Barber Shop on Main Street. "Everybody's in favor of it, though."
When people are asked about the case, most talk about how it has dragged on and how execution dates have come and gone. "I guess that's why there isn't much talk about it," Ferrell said.
"Come to think of it, I haven't heard anyone talking about it," Marion Mayor Marshall Guy said. "I'm out every day talking to people, and it hasn't come up."
The victims' relatives, too, aren't eager to talk about the situation, but for different reasons.
A member of the Havens family said one of Havens' sons might have something to say after the execution, but not before. Although Tuggle's appeals seem to be exhausted, the family is still concerned about another delay.
Roger Havens, a son who was to attend one of the earlier-scheduled executions, is not changing his work schedule to do so this time. Another son, Billy, died about a year ago.
"We've had 25 years to think about it," said Wanda Worley, a sister of the first victim. ``This has been a real struggle for my family. We just want to put it to rest. And I hope we're at the end of it where we can finally put it to rest."
"You can't be glad when anybody's killed, I guess," said Danny Lowe, a Smyth County lawyer who prosecuted Tuggle for the Havens murder. "At the same time, it's the law and it's got to be done. With him, I think justice will be served. That's all I can say. I still feel for his family, as much as I do for the other people's families."
Robert Asbury, the county's commonwealth's attorney before Lowe, prosecuted Tuggle in the Brickey murder. In urging a life sentence in his 1972 statement to the jury, Asbury was prophetic: "The penalty you impose should be to protect society from Lem Davis Tuggle Jr. He cannot be trusted."
That jury convicted Tuggle of second-degree murder and sentenced him to 20 years. In a statement Tuggle made to a deputy sheriff, read during that trial, he claimed to have blacked out after consuming a combination of alcohol and drugs when he took Brickey to a deserted house near Seven Mile Ford. When he woke up, he said, she was dead.
Tuggle subsequently stole a car and sold some of the items in it for money to buy a bus ticket to Baltimore, where he was arrested. He told the deputy that he had planned to flee to Canada.
Tuggle took Brickey to the house after an American Legion dance. Twelve years later, on May 28, 1983, he met Havens at another of those dances and, according to testimony from a woman at their table, offered to drive her home when the dance broke up about 1 a.m.
Havens never got home. Her body was found four days later not far from where Brickey died.
Havens had been shot once in the chest. A state medical examiner testified that an autopsy showed she had been raped and sodomized. She also had a bite mark on her body, which a forensic dentist matched to Tuggle's teeth.
The American Legion dances have long since been discontinued. A Legion official who testified at Tuggle's second trial said Tuggle had asked if he could bring a pistol inside with him. He was told to leave it in the trunk of his car. Another witness said she saw Tuggle open the trunk before he drove away with Havens.
Havens apparently had no inkling she was in danger. A state trooper stopped Tuggle's car near Seven Mile Ford because it was traveling slowly and weaving, but said Tuggle did not appear to be intoxicated. The trooper recalled nodding at the woman in the car while checking Tuggle, and believed she nodded back.
Although initially charged with holding up a taxi driver in Danville and stealing the cab shortly after Havens was missing, Tuggle was not prosecuted for those crimes because he had been sentenced to death. On the day Havens' body was found, Tuggle held up a Chilhowie service station and was later pulled over in Pulaski and asked about the holdup.
"Yes, I robbed it," he told the trooper. "The money's in my pocket and the gun's in the trunk." Ballistics tests matched the gun with the .25-caliber bullet that killed Havens.
The rape charge elevated the case to capital murder. A Central State Hospital psychiatrist who examined Tuggle testified that Tuggle alternated between passive and aggressive behavior, and there was a high probability he would kill again if left free.
It took a jury less than 80 minutes to come back with a conviction and a death penalty recom- mendation.
Tuggle's case has been appealed on grounds that the state should have provided a psychiatrist for the indigent defendant and whether in the second case there was sufficient evidence of rape (necessary for capital murder). It has gone twice to the U.S. Supreme Court and always ended up going back to the 4th U.S. Circuit Court of Appeals, which has consistently ruled against Tuggle.
Tuggle became the veritable poster boy for Gov. George Allen's and Attorney General Jim Gilmore's initiative to end parole in Virginia and to increase sentences. Gilmore pushed it after a meeting with members of the Mullins and Havens families in Smyth County in 1994, when he announced that the state would fight the latest bid for a new trial.
"If these new sentences had been in place when Lem Tuggle was convicted of killing Shirley Mullins Brickey, he would not have been on parole the day Havens was shot. He could have been serving a 40-year sentence instead of 20 years. And of course he would not have been eligible for parole," Gilmore said at that time.
The legislature subsequently approved the parole and sentencing changes.
Under Virginia's former system, Tuggle could have been free on parole for his first killing earlier than he was. Prisoners then had to be considered annually for parole after serving a quarter of their sentences. Tuggle was turned down for parole three times.
He left the state without permission the first time he was freed, after being laid off at a plant where he had found work. He was arrested in Baltimore on a fugitive warrant and went back to prison for five months for violating parole. He was free for a second time on parole when Havens was murdered.
Before Havens' death, Tuggle was the victim of two attacks. A brother of his first victim knocked him down when he encountered Tuggle in a Marion tavern. A second time, Tuggle was attacked on a Marion street by people he could not identify and was treated at a hospital emergency room for a facial beating.
In 1984, Tuggle escaped prison with five other death row inmates by posing as guards disposing of what turned out to be a fake bomb. He was recaptured nine days later in Vermont. "I'm Lem, and I'm wanted in Virginia," he told police who questioned him.
It was the largest death row escape in U.S. history. The other five prisoners, also recaptured, have since been executed.
Tuggle failed in two other escape attempts. In 1985, he and three others tried to bluff their way out with a fake pistol and match-stick "bomb." In 1987, he and another death row inmate were caught trying to cut through metal window screens.
Tuggle, now 44, was the first Smyth County man to receive the death penalty in modern times. But another Smyth man, Mickey Wayne Davidson, was the first to be executed. Davidson, convicted of capital murder in the beating deaths of his wife and two stepdaughters in 1990, was executed at Greensville Correctional Center Oct. 19, 1995.
LENGTH: Long : 145 lines ILLUSTRATION: PHOTO: (headshot) Tuggleby CNB