THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, January 23, 1996 TAG: 9601230243
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY AND ANGELITA PLEMMER, STAFF WRITERS
LENGTH: Long : 140 lines
Two days before the scheduled execution of Richard Townes Jr., two of the jurors who sent him to death row for killing a convenience store clerk in Virginia Beach said they would have sentenced him to life, instead, if they had known he was not eligible for parole.
Townes, 45, convicted of the 1985 shooting death of Virginia Goebel, is scheduled to die by lethal injection tonight at Greensville Correctional Center in Jarratt, barring a court stay or clemency by Gov. George F. Allen. Goebel, a 32-year-old mother of two, was killed April 14, 1985, at the Gulf Majik Market on Indian River Road.
Investigators working on Townes' behalf recently reached 11 of the dozen jurors in the 1986 trial. In affidavits signed Sunday, two jurors said they would not have sentenced Townes to die if they had known that, under Virginia law, he could not have been paroled. Eight others declined to discuss the case. David P. Wadyka, a lawyer representing Townes, said he did not know what the eleventh juror said.
``I would not have sentenced Mr. Townes to death had I known that a life sentence meant that he would have really served a life sentence and not been eligible for parole,'' juror Ethel Keith said in an affidavit. ``In fact, I do not believe any of the jurors would have sentenced him to die under those circumstances.''
She also said that she and other jurors worried that Townes might one day get out of prison, and they didn't want that to happen.
``I remember that none of the jurors wanted to sentence Mr. Townes to death, but we felt we had to,'' she said.
A second juror, Margaret Belan, said that she remains troubled that jurors were put in the position of second-guessing the meaning of a life term in the Townes case.
During their deliberations, jurors asked the judge what a life term meant, but at the time, the law prohibited him from answering their question.
``I was bothered at the time of the trial that the judge would not give us a meaningful answer to our question about parole,'' Belan said. ``Had I known that Richard Townes would have received a literal life sentence and would not have been eligible for parole, I would have voted for a life sentence rather than the death penalty.''
At the time, Circuit Court Judge Austin E. Owen told the jury: ``The question relating to parole eligibility is not a matter appropriate for jury consideration. . . . I regret that I can't give you any more answer than that.''
A decision on sentencing must be unanimous. If jurors cannot agree to a sentence in a capital murder trial, the judge automatically imposes a life term.
Wadyka, Townes' lawyer, has provided Allen with copies of the new affidavits to support the clemency bid.
``These two jurors now say that they were misled or uninformed as to Richard's parole status,'' Wadyka said Monday. ``Richard may be executed (tonight) based on misinformation or lack of information. That's sad if that happens.''
Also pending late Monday was a request for a stay before the U.S. Supreme Court challenging a state law that requires that executions be set within 60 days of final appeals.
During trial, Prosecutor Albert Alberi told jurors that Townes had robbed the Majik Mart and then murdered Goebel to prevent her from identifying him.
Townes, who represented himself during his trial, had little to say on his behalf during his sentencing hearing. He offered no mitigating evidence, questioned no witnesses and did not argue to the jury. He made no objection when the jury asked their question about his likelihood of receiving parole.
In 1994, the U.S. Supreme Court, ruling in the case of Simmons vs. South Carolina, said a defendant must be allowed to tell the jury that he is ineligible for parole if given a life term in cases where prosecutors are arguing for death based on future dangerousness.
Wadyka interprets that law to apply in the Townes case, though the legal waters are murky. The 4th U.S. Circuit Court of Appeals has ruled that the Simmons case does not apply in the Townes case.
During the sentencing hearing, jurors heard about Townes' past record and propensity for violence. He had 29 felony convictions, including 22 for passing bad checks. Jurors also heard testimony from Norfolk taxi driver Arthur Beasley about how Townes and another man held him prisoner in his cab for six hours in 1976 before shooting him in the back four times.
Townes would not have been eligible for parole due to Virginia law that does not allow parole for people convicted of three separate crimes of violence. He could have told this to the jury, but did not.
Relatives of murder victim Goebel said Monday they had mixed feelings about tonight's scheduled execution.
Goebel's mother, Virginia B. Aygarn, recalled having pity for Townes' family during the trial.
``I felt so sorry for his grandmother . . . sitting there just reading the Bible,'' she said during an interview at her home in Pungo. ``She looked so hurt.''
But on the other hand, ``There's a terrible hardness in me that says fry him,'' the 64-year-old woman said softly in the living room of the three-bedroom farmhouse where her daughter grew up. ``There's a terrible hardness in me.''
``He had no right to kill her,'' Aygarn said, showing pictures of Goebel's two daughters, who were small children when their mother was murdered. ``I feel like if he had the opportunity to get out in 30 years, I think he would do it again.''
Aygarn said she ``always used to think that the death penalty was wrong. .
``I thought to myself, how dare he,'' she said emotionally. ``What right had he to do such a thing? She was just a poor woman up there trying to earn a living. And he just got her down on the floor and shot her in the head.''
Now, ``what's done is done,'' Aygarn said quietly.
``I don't think it would make any difference whether they fry him or not,'' said 34-year-old Lucy Aygarn, the victim's sister. ``He had already been proved a menace to society. That man should have never been out on parole in the first place.''
``There was nothing that could have stopped him except locking him up forever,'' Lucy Aygarn said as tears rolled down her face. ``Ginny was just too good of a person.''
The Townes case is not the only death-row case that has recently addressed the issue of jurors' knowledge of a defendant's parole eligibility. The other case involves Joseph O'Dell, convicted of capital murder in the death of Helen C. Schartner in Virginia Beach.
In September 1994, U.S. District Court Judge James R. Spencer overturned O'Dell's death sentence, ruling that his rights were violated because he was not allowed to rebut prosecutors' argument about his future dangerousness with evidence that he was ineligible for parole.
``There is a reasonable probability that this constitutional error had a `substantial and injurious effect or influence' in the jury's decision to impose the death penalty,'' the judge wrote.
The state appealed, and that case is before the federal appeals court in Richmond. ILLUSTRATION: Photo
Richard Townes Jr., 45, is scheduled to die tonight for his
conviction in the 1985 shooting death of Virginia Goebel, 32.
Color Staff photo by D. Kevin Elliott
Virginia B. Aygarn, left, with daughter Lucy, said of the killer's
family, "I felt so sorry for his grandmother...sitting there just
reading the Bible." but she also said, "There's a terrible hardness
in me that says fry him."
KEYWORDS: DEATH PENALTY CAPITAL PUNISHMENT DEATH ROW APPEAL MURDER
by CNB