Wanda McCoy was attacked in, or just outside, her home on March 10,
1981. She was then raped and murdered. There was little sign of a
struggle and it was assumed she had allowed her attacker to come
into the house.
Roger Coleman, her brother-in-law, had access to
the house and immediately became a suspect. Coleman had a prior
conviction for Attempted Rape. Coleman, who worked in a mine, had
reported to work that night but had left when his shift was
The victim had broken fingernails, cuts on the
hands, and a dark, dusty substance on her body. The autopsy report
recorded wounds to her chest and throat with a knife. Initial and
subsequent DNA testing connected Coleman to the crime scene.
Coleman consistently maintained his innocence,
convincing Time Magazine to run a cover story days before his
execution. Coleman took and failed a polygraph test administered by
the State shortly before his execution.
DNA Tests Confirm Guilt of Executed Man
Maria Glod and Michael D. Shear - Washington Post
Friday, January 13, 2006
Modern DNA tests have confirmed the guilt of a
Virginia man who had proclaimed he was innocent of murder and rape
even as he was strapped into the electric chair and executed more
than a decade ago, the governor announced yesterday. The results
stunned and disappointed those who have fought a 25-year crusade to
prove that Roger K. Coleman was innocent. They also dashed hopes
among death penalty foes that the case would catalyze opposition to
capital punishment across the country.
Virginia Gov. Mark R. Warner (D) yesterday said
genetic analysis conducted in recent weeks proves that Coleman, who
was executed in 1992 for the slaying of his 19-year-old sister-in-law,
was a rapist and killer. The tests show there is a one in 19 million
chance that semen found on the victim's body belonged to someone
else. "We have sought the truth using DNA technology not available
at the time the commonwealth carried out the ultimate criminal
sanction," Warner said in a statement. "The confirmation that Roger
Coleman's DNA was present reaffirms the verdict and the sanction."
Coleman's case had become a focal point in the
debate over capital punishment, with opponents insisting that DNA
tests would prove that an innocent man was put to death and
proponents saying that justice was served. Coleman had maintained
his innocence in a series of television and newspaper interviews
that generated attention around the world, and his backers tried for
years to get the courts or politicians to order the tests. Warner,
in his last weeks in office, agreed to allow the analysis and became
the nation's first governor to allow post-execution testing.
Legal scholars said the test results denied death
penalty opponents a long-sought opportunity to put a human face on
one of their most compelling arguments: that the U.S. justice system
makes mistakes that result in the executions of innocent men. "The
opportunity to bring new people into the abolitionist movement has
been lost," said Phyllis Goldfarb, a professor at Boston College's
But Goldfarb said that though the exoneration of
an executed inmate could have profoundly eroded support for the
death penalty, confirmation of Coleman's guilt won't change many
opinions. "Supporters of the death penalty will be confirmed in
their skepticism of claims of innocence," she said. "Opponents still
have reason to oppose. The risk of executing innocents still exists."
Coleman, a coal miner from the small Appalachian
town of Grundy, Va., was convicted and sentenced to death in the
1981 rape and stabbing of Wanda McCoy. Coleman's assertions of
innocence and questions over the strength of the evidence prompted
Centurion Ministries, a New Jersey charity that investigates
wrongful convictions, to investigate the case. Media organizations,
including The Washington Post, joined Centurion in an unsuccessful
court fight to have the DNA tests conducted years ago.
Yesterday, James C. McCloskey, Centurion's
executive director, said he felt betrayed by the man whose last
words included the statement, "An innocent man is going to be
murdered tonight." "How can somebody, with such equanimity, such
dignity, such quiet confidence, make those his final words even
though he is guilty?" McCloskey said. "Had the evidence shown him to
be innocent . . . that would have had a tremendous effect on the
anti-death-penalty movement in terms of perhaps encouraging
moratoriums and even abolition," McCloskey said. "Those are not the
set of facts we have in this instance. That will not happen, at
least as the result of this case."
But he and his attorney, who battled without pay
for six years to have Coleman's DNA tested, insisted that Coleman's
case will serve as a model to encourage other politicians and
prosecutors to allow testing of DNA before and after someone is
convicted. "The results in this case don't end the debate over the
death penalty," said Paul Enzinna, a lawyer with the Washington firm
of Baker, Botts.
Tom Scott, a criminal defense lawyer from Grundy
who helped prosecute Coleman, said he remained convinced all along
that the right man was tried, convicted and executed. "I never had
any doubt about his guilt, never," Scott said. "All the evidence
always pointed to Coleman."
During Coleman's trial, authorities said evidence
included hair on McCoy's body that was similar to Coleman's and the
account of a jailhouse informant. Coleman also had been convicted of
attempted rape a few years earlier. Coleman said he had an alibi and
would not have had time to commit the killing. Defense attorneys
also gathered affidavits from people who said another man admitted
to killing McCoy.
The testing in Coleman's case marks only the
second time nationwide that DNA tests have been performed after an
execution. In 2000, tests ordered by a Georgia judge in the case of
Ellis W. Felker, who was executed in 1996, were inconclusive.
Genetic tests exonerated Florida inmate Frank L. Smith in 2000,
several months after he died of natural causes while awaiting
After the results of the testing in Coleman's
case were made public, the death penalty debate continued. "Today's
finding is a further demonstration that Virginians' trust in our
criminal justice system is well founded," said Robert F. McDonnell
(R), who will become Virginia's attorney general tomorrow. "Today is
further proof that this is exactly the manner in which the death
penalty has been, and will continue to be, employed in the
Joshua K. Marquis, vice president of the National
District Attorneys Association and an Oregon prosecutor, was more
vehement. "This is not at all unexpected and puts to a lie the myth
that wrongful convictions are epidemic," he said. "Coleman was not
just a rapist and a murderer but a liar as well."
But Peter Neufeld, co-director of the New York-based
Innocence Project, which has helped exonerate more than 170 inmates,
said that there may have been mistakes in other cases and that
similar investigations should continue. "Today we got just one
answer, and one man cannot speak for the correctness of the verdicts
in a thousand other capital cases," Neufeld said.
DNA Tests Confirm Man Executed in 1992 for Rape,
Murder in Virginia Was Guilty
By Kristen Gelineau -
ABC News Legal Center
RICHMOND, Va. Jan 12, 2006 (AP)— New DNA tests
confirmed the guilt of a man who went to his death in Virginia's
electric chair in 1992 proclaiming his innocence, the governor said
Thursday. The case had been closely watched by both sides in the
death penalty debate because no executed convict in the United
States has ever been exonerated by scientific testing. The tests,
announced by the governor earlier this month, prove Roger Keith
Coleman was guilty of the 1981 rape and murder of his sister-in-law,
Gov. Mark R. Warner said.
Coleman was convicted and sentenced to death in
1982 for the murder of 19-year-old Wanda McCoy, his wife's sister,
who was found raped, stabbed and nearly beheaded in her home in the
coal mining town of Grundy.
The report from the Centre of Forensic
Sciences in Toronto concluded there was almost no conceivable doubt
that Coleman was the source of the sperm found in the victim. "The
probability that a randomly selected individual unrelated to Roger
Coleman would coincidentally share the observed DNA profile is
estimated to be 1 in 19 million," the report said.
A finding of innocence would have been explosive
news and almost certainly would have had a powerful effect on the
public's attitude toward capital punishment. Death penalty opponents
have argued for years that the risk of a grave and irreversible
mistake by the criminal justice system is too great to allow capital
punishment. "We have sought the truth using DNA technology not
available at the time the commonwealth carried out the ultimate
criminal sanction," Warner said in a statement. "The confirmation
that Roger Coleman's DNA was present reaffirms the verdict and the
sanction. Again, my prayers are with the family of Wanda McCoy at
Initial DNA and blood tests in
1990 placed Coleman within the 0.2 percent of the population who
could have produced the semen at the crime scene. But his lawyers
said the expert they hired to conduct those initial DNA tests
misinterpreted the results. The governor agreed to a new round of
more sophisticated DNA tests in one of his last official acts.
Warner, who has been mentioned as a possible Democratic candidate
for president in 2008, leaves office on Saturday.
Coleman's case drew international attention as
the well-spoken inmate pleaded his case on talk shows and in
magazines and newspapers. Time magazine featured the coal miner on
its cover. Pope John Paul II tried to block the execution. Then-Gov.
L. Douglas Wilder's office was flooded with thousands of calls and
letters of protest from around the world.
Coleman's attorneys argued that he did not have
time to commit the crime, that tests showed semen from two men was
found inside McCoy and that another man bragged about murdering her.
"An innocent man is going to be murdered tonight," the 33-year-old
said moments before he was electrocuted on May 20, 1992. "When my
innocence is proven, I hope America will realize the injustice of
the death penalty as all other civilized countries have."
A former prosecutor in the case said the results,
while not surprising, were a relief. "Quite frankly, I feel like the
weight of the world has been lifted off of my shoulders," Grundy
attorney Tom Scott said. "You can imagine, had it turned out
differently, (the other prosecutor) and I certainly would have been
Prosecutors said a mountain of other evidence
pointed to Coleman as the killer: There was no sign of forced entry
at McCoy's house, leading investigators to believe she knew her
attacker; Coleman was previously convicted of the attempted rape of
a teacher and was charged with exposing himself to a librarian two
months before the murder; a pubic hair found on McCoy's body was
consistent with Coleman's hair; and the original DNA tests placed
him within a fraction of the population who could have left semen at
Four newspapers and Centurion Ministries, a New
Jersey organization that investigated Coleman's case and became
convinced of his innocence, sought a court order to have the
evidence retested. The Virginia Supreme Court declined to order the
testing in 2002, so Centurion Ministries asked Warner to intervene.
James McCloskey, executive director of Centurion
Ministries, had been fighting to prove Coleman's innocence since
1988. The two shared Coleman's final meal together cold slices of
pizza just a few hours before Coleman was executed. I now know that
I was wrong. Indeed, this is a bitter pill to swallow," McCloskey
said, describing Thursday's findings as "a kick in the stomach" and
adding that he felt betrayed by Coleman.
Death penalty proponents welcomed the results.
"Stop the presses it turns out that rapists and killers are also
liars," Michael Paranzino, president of a group called Throw Away
the Key, said in a statement.
Death penalty opponents praised
Warner's decision to order the testing but warned that Coleman's
case does not mean the death penalty is infallible. "Obviously, one
case does not in any way reflect on the correctness of the other
1,000 executions we've had in the last 30 years," said Peter Neufeld,
co-founder of the Innocence Project. "Other governors should take
their lead from Governor Warner and do post-execution testing in
their cases, because … there's no reason not to it's all about
getting to the truth."
Associated Press writers Sue Lindsey in Roanoke
and Michael Felberbaum and Zinie Chen Sampson in Richmond
contributed to this report.
Name/DOC #: Roger Keith Coleman
Address: Grew up in Grundy, Buchanan County, VA; resided there at
time of crime.
Executed at Virginia's Greensville Penitentiary.
Date of Birth: November 1, 1958
Date of Crime: March 10, 1981
Age Time of Crime: 22
Date Sentenced: April 23, 1982
Victims: Wanda Fay McCoy
Race of Victims: White
Relationship to Defendant: Sister-in-law: Roger Coleman was married
to victim's sister at time of crime.
Facts Alleged by State: Coleman was
allegedly admitted to victim's home, where he allegedly attacked her,
raped her, sodomized her, and cut her throat, thus causing her death.
County of Trial: Buchanan County, VA
Trial Judge: Buchanan County circuit judge Nicholas Persin
Trial Attorney: Terry Jordan and Steven Are
Prosecutors: Commonwealth's Attorney Michael G. "Mickey" McGlothlin,
assisted by Tom Scott, private practitioner
Trial By: Jury
Convicted of: Rape and capital murder
Accomplice Testimony: No accomplice testimony; no accomplice found
Eyewitness Testimony: No witnesses
Forensic Testimony: Two hairs recovered
from the victim's body were said to be "unlikely" to have come from
anyone but Mr. Coleman: Semen samples recovered from the victim's
body were of same blood type as Mr. Coleman. Blood on Mr. Coleman's
pants was of same type as victim; Blood and semen samples were not
subjected to all available tests; Subsequent DNA analysis of samples
supported original matchups; dispute continues over further testing
of remaining samples with newly improved DNA analysis, with state
opposing further tests; Soil on Ms. McCoy's hands, sleeves, legs,
was never compared to soil around house: Thus, chance was missed to
challenge prosecution theory of attack inside house by person known
to victim; Fingerprint on front door was apparently never analyzed;
this may have meant losing a chance to identify intruder(s); Wounds
in victim's chest were said to have been made by Coleman's
pocketknife: Other experts challenge state's analysis of wounds as
insufficient to establish link.
Jailhouse Snitch: Yes: Roger Matney, a
convicted felon awaiting sentencing in Buchanan County Jail when
Coleman was held there following his arrest, testified that Coleman
had confessed to him. In Matney's account, Coleman reported visiting
McCoy's house with another man, where the other man attacked her and
both the other man and Coleman raped her. Matney's allegations that
Coleman reported having sketched the murder scene, and that a weapon
was discarded under a bridge, were apparently never followed up for
Defendant Testimony: Coleman denied
involvement in the crime and denied having "confessed" to Roger
Matney. He recounted his whereabouts the night of the crime.
Principal Exculpatory Evidence: Well-supported
alibis. Coleman had gone to work at the coal mine the evening of the
crime, found that his entire shift had been laid off unexpectedly,
and spoken with several acquaintances and co-workers before
returning home. DNA testing shows involvement of two assailants, and
other assailant never identified. Unexplained physical evidence does
not fit into prosecution theory that Coleman was willingly admitted
to house and attacked McCoy inside.
Statutory Aggravating Factor: Virginia
death sentences require finding by jury that defendant's likely
future commission of violent acts constitutes a threat to society,
OR that murder in question was "outrageously or wantonly vile,
horrible or inhuman, in that it involved torture, depravity of mind
or aggravated battery to the victim." Coleman's jury found both
conditions to obtain death sentence(based on prior felony conviction
and on circumstances of McCoy killing).
Mitigating Factors: Testimony on Coleman's
recent religious conversion.
Mental Illness, retardation or neurological
Criminal History: Felony conviction for
attempted rape in 1977. (State's case against Coleman in that case
was based on victim's identification of Coleman's picture in high
school yearbook. High school superintendent, who knew Coleman
personally, reported having been talking with Coleman elsewhere at
time of attack.)
Appellate History: Original habeas corpus
petition in state court was ruled to have been filed one day late.
Federal and state review of trial was therefore effectively denied,
this denial being affirmed by U.S. Supreme Court. New information
discovered by Coleman's lawyers and by independent investigators was
Prosecutorial Misconduct: Habeas corpus
petition claimed trial flawed because state did not provide defense
with exculpatory documents, including report of pry mark on front
door molding, and the report of police interviews with a couple who
had seen Coleman the night of the crime.
May God Have Mercy: A True Story Of Crime and
A book by John C. Tucker.
Delacorte Press - September 1998
From the Publisher: In some states by law, in
others by tradition, judges imposing a sentence of death complete
the grim ritual with the words "May God have mercy on your soul." In
1982, in Grundy, Virginia, a young miner named Roger Coleman was
sentenced to death for the murder of his sister-in-law. Ten years
later, Coleman's case had become an international cause celebre as a
result of the extraordinary efforts of Kitty Behan, a brilliant and
dedicated young lawyer who devoted two years of her life to
gathering evidence of Coleman's innocence. Despite the mounting
demands of the public, the media, and world religious leaders that
Coleman's conviction be reexamined, the courts refused to consider
new evidence because of a lawyer's mistake: years earlier, an
appointed lawyer had filed a document one day late. The governor of
Virginia offered Coleman only one chance for a reprieve - the
opportunity to take a lie-detector test on the morning of his
scheduled execution. "May God Have Mercy" explores the legal and
moral complexities of this dramatic case with devastating impact.
READ A CHAPTER FROM THE BOOK:
CHAPTER ONE Buchanan County, Virginia - The town
of Grundy doesn't fit the usual gracious public image of Virginia.
Grundy is the county seat of Buchanan County, in the heart of
Appalachia. It is farther south than most of Kentucky, and farther
west than all but a sliver of West Virginia. It is so far west that
the mixture of mud, water and coal dust that flows through town in
the Levisa Fork River runs west to the Mississippi instead of east
to the Atlantic Ocean.
It's nearly a seven-hour drive from Grundy to
Virginia's capital in Richmond, but only thirteen miles to West
Virginia—due east. You can't buy a drink of liquor in Grundy, so
some of its less reputable citizens make the short trip to the
Acapulco Club, just over the state line. Others drink the moonshine
made in Buchanan County's mountain hollows. It's a toss-up whether
you're more likely to go blind from drinking the moonshine or
getting slashed by a broken beer bottle at the Acapulco.
If you head west from Grundy, it's sixteen miles
to Pike County, Kentucky—site of the feud between the Hatfields and
the McCoys, and some celebrated battles between revenuers and
moonshiners. During Prohibition, the revenue men rarely ventured
into Virginia—it was too dangerous, and besides, Virginia
politicians didn't care any more for federal intervention in whiskey-making
than they did forty years later when the issue was segregation. In
1935 Sherwood Anderson wrote about a moonshining case tried in
federal court in Roanoke. The defendants included the sheriff of
Franklin County and the county prosecutor, Carter Lee, Robert E.'sgrandnephew.
From the evidence, Anderson wrote, it seemed as if Franklin County,
Virginia, was "the wettest spot in the United States." Up the road
in Buchanan County, some of the residents smiled.
Today, the only significant business in Buchanan
County is mining coal. Unless you have a private airplane, you're
most likely to approach Grundy by driving northwest on U.S. Route
460. Once you cross the height of land, the headwaters of Levisa
Fork appear and the highway follows its valley. Soon road and river
are joined by the tracks of the Norfolk & Western Railroad, built to
carry the rich coal deposits of Buchanan County to market.
In 1931, shortly before the railroad announced a
plan to extend its tracks in Buchanan County, a few prominent
citizens began purchasing mineral rights from the families who had
settled the area a century earlier. The Depression was on and life
was even harder than usual for families trying to scratch a living
from Buchanan's steep slopes and thin soil. For a man who owned a
couple of hundred acres of mostly untillable mountainside, the
dollar an acre he was offered for whatever was underneath was found
money—money he was too poor to turn down even if he suspected that
the buyer knew something he didn't.
Thus, in early 1931 thousands of acres of
Buchanan County mineral rights changed hands for next to nothing. A
few years later, while most of its citizens remained dirt poor,
Buchanan County boasted some of the wealthiest families in Virginia—and
still does. Among them today are the McGlothlins and the Streets,
founders and owners of United Coal Company, one of the largest
privately owned coal companies in America. Organized in 1970 by a
group of local lawyers and businessmen who decided to invest in some
then-depressed coal properties, United grew rapidly, just in time
for the 1973 Arab oil boycott to multiply the price of coal and the
value of United's holdings. Two decades later, Jim McGlothlin,
United's CEO and largest shareholder, is one of the richest men in
Coal is mined three ways in Buchanan County—strip
mining, drift mining and deep shaft mining. The strip mines use
giant earth movers to chew off the tops of mountains and ridges.
Drift mines tunnel straight into the side of a mountain, removing
the narrow bands of coal that followed its contours when the
mountain was raised up by the massive force of colliding tectonic
plates. The deep shaft mines burrow straight down to where the
largest seams of coal were formed, far beneath the surface.
As you approach Grundy, large industrial
compounds appear along the roadside, each with its own rail spur and
a windowless, square-sided tower sheathed in corrugated metal. These
are the shaft mines where miners work far below the surface, raised
and lowered in cages attached to a cable. The mine on your left in
Vansant, just east of Grundy, is Consolidated Coal Company's
Pocahontas Mine No. 3. Its shaft descends some fifteen hundred feet
straight down to the Pocahontas seam, which runs beneath much of
Buchanan County. Once the seam is reached, tunnels spread out in
many directions, following the rich deposits of coal. Some tunnels
run for miles, with a maze of side tunnels as well. The mountain
whose insides are now being devoured by Pocahontas No. 3 is not even
visible from the mine entrance in Vansant.
The shaft mines of Buchanan County are among the
deepest and most dangerous coal mines in America. Because they
release so much deadly and explosive methane gas, they require
exceptionally strong air circulation, so that working in them is
like working in a wind tunnel. In a place that is always damp and
cold, a wind blowing at a steady twenty-five miles an hour may keep
the mine from exploding, but after an eight-hour shift some miners
think favorably of the fiery cremation chosen by Sam McGee in the
Robert Service poem.
Even so, the miners who work the deep shafts have
two advantages over those who work the drift mines that tunnel into
the mountainsides of nearly every hollow in Buchanan County. One is
that the deep shaft mines are unionized, while United Coal and most
companies that own drift mines are not. The other is that a shaft
miner can usually stand up while he works. The Pocahontas seam is
nearly five feet thick, and the tunnels that work it are at least as
high as the seam, but the drift-mine seams and the tunnels that
follow them are typically thirty-six inches high or less. A drift
miner works on his hands and knees. For a miner who avoids being
crippled, burned or buried alive, the usual question is which will
give out first—his lungs, his back or his knees.
As U.S. 460 enters Grundy from the east, it
becomes the main street of the business district. Although Grundy's
population is less than two thousand, it is the only incorporated
town in Buchanan County and the main commercial center for the
surrounding area. The left side of the road is lined with a variety
of businesses. In the center of town, on the right, is the Buchanan
County Courthouse, an ugly eighty-eight-year-old structure of gray
stone. After World War II a new wing was added, with an entrance of
concrete blocks molded to imitate the stone.
At the corner of the building, where a short side
street runs off to the right, a striking bronze sculpture of a coal
miner stands on a black marble base. He is dressed in work boots and
coveralls, his pant legs taped over his boot tops to keep out the
coal dust. His miner's helmet and headlamp are tilted back at a
jaunty angle, revealing longish hair that is surely blond in real
life. He stands erect, holding a miner's pick waist-high, and seems
to gaze off to a distant horizon- a pose suggesting either that the
sculptor had never been in a coal mine or that the mine owners who
contributed to his commission were disinclined to show their workers
crawling on hands and knees in a tunnel barely three feet high.
Beyond the courthouse, Slate Creek approaches the
highway from the right, passes beneath it and empties into Levisa
Fork, which there makes a sharp bend to the west, leaving the
highway to fetch up against a sheer cliff of gray stone. On the face
of the stone, members of the latest graduating class of Grundy
Senior High School paint their class numerals and a pictorial
tribute to the incongruous school mascot, a golden wave.
To avoid the cliff, Route 460 pauses at a
stoplight and turns 90 degrees left to follow the river to Kentucky,
while another road heads off to the right, following Slate Creek
upstream to West Virginia. For many years, Tuffy's barbershop
occupied the building on the corner where the highway turns. In the
basement of the shop was a shower room where, for a small fee, coal
miners coming from work could remove their work clothes and wash
some of the black coal dust off their skin and out of their hair
before returning home.
The barbershop and bathhouse are closed now, so
unless he works at one of the big mines with its own shower room, a
miner takes his coating of coal dust home. For the most part,
Grundy's citizens are hard-working, God-fearing people. There are,
however, some notable exceptions, and while the coal miner's statue
next to the courthouse pays tribute to the economic heartbeat of
Buchanan County, the courthouse itself plays a central role in one
of the region's principal recreational activities—violence,
especially murder, rape and wife beating, with an occasional dose of
labor strife thrown in.
While Grundy can't boast a strike as bloody as
the one that brought nearby Harlan, Kentucky, the nickname Bloody
Harlan, a few years ago the most violent coal strike in decades was
centered next door in Dickenson County. Before it was over hundreds
of miners had been jailed, and a judge named McGlothlin had fined
the United Mine Workers millions of dollars. In the next election,
Buchanan County's incumbent state representative, also a McGlothlin,
lost his seat to the president of the Mineworkers local. As for
casual violence, Grundy's recent generation of young layabouts and
drug dealers can hold their own in any league.
In February 1981, under the headline MURDER NO
LONGER SAFE IN BUCHANAN, Grundy's newspaper, The Virginia
Mountaineer, profiled a young lawyer who was the county's
Commonwealth's Attorney, or prosecutor—Jim McGlothlin's younger
The article reported that since taking office a
year earlier, Mickey McGlothlin had successfully prosecuted seven
murder cases. It didn't mention that the seven murders reported in
Buchanan County in 1980 gave the community a murder rate more than
twice that of the state as a whole. A month after the article
praising Mickey McGlothlin appeared in the Mountaineer, Grundy's
young Commonwealth's Attorney had another murder to prosecute.
CHAPTER TWO Brad and Wanda - Wanda Fay Thompson
was born on November 5, 1961, the second youngest of sixteen
children—eight girls and eight boys. Wanda's father is a retired
coal miner. The Thompsons raised their sixteen children in a frame
house on Home Creek, a small tributary of Levisa Fork about twelve
miles northwest of Grundy, a stone's throw from Kentucky.
The family has always been close. All the sons
are in some kind of coal-mining job, and two of them, Pal and Danny
Ray, have built their own houses on the hill just above the house
where they were raised and their mother and father still live. Most
of the other Thompson children live close by. All the girls are
pretty, and Wanda Fay, with her strawberry-blond hair and ready
smile, was no exception. Although she enjoyed the outdoor games her
brothers and sisters played together whenever chores and good
weather permitted, Wanda's favorite pastime was making clothes and
crafts. In high school she was an average student, quiet and
obedient. With strangers, she was almost painfully shy. No one can
recall her ever doing anything mean or hurtful. Her sister Peggy
says, "I guess you'd have to say she was just about perfect."
Brad McCoy is Max "Hezzie" McCoy's youngest son.
Hezzie works for United Coal and drives a white stretch limousine
that he rents out and chauffeurs himself for weddings and other
occasions. He is a proud member of the McCoy clan. Brad is slight of
build and as soft-spoken and gentle as his legendary forebears were
crude and ill-tempered. Brad McCoy and Wanda Fay Thompson were high
school sweethearts at Grundy Senior High School. Brad was a member
of the class of 1978; Wanda was two years behind him. They met
through Wanda's older sister Lydia, who worked with Brad at the
Piggly Wiggly. Brad had a crush on Lydia, but she passed him off to
her younger sister.
The pass was complete. In July, a few weeks after
Brad graduated, Brad McCoy and Wanda Fay Thompson were married at
the Grundy Baptist Church. Wanda's family attended a church on Home
Creek, but Brad had become close to Rev. Jack Mutter, the minister
at Grundy Baptist, whose son, a close friend of Brad's, had been
killed in a car accident not long before. It was typical of Brad
that he would think it might give Mutter some comfort to celebrate
the wedding of his son's friend, and Wanda and her parents agreed to
his suggestion that the ceremony be held at Grundy Baptist. Bill
Pierce, a friend, stood up for Brad. Wanda was attended by her
younger sister Patricia. Both sets of parents thought the marriage
was a perfect match, and for as long as it lasted it seemed they
were right. On June 16, three days after Brad graduated from high
school, he went to work at United Coal. Perhaps because of his
temperament and slight build, or perhaps because he seemed a little
smarter than the average Grundy High School graduate, Brad was
employed aboveground, as a parts clerk in one of the company repair
If you turn left at the Grundy stoplight and
follow Route 460 toward Kentucky, in about two miles you come to
United Coal Shop No. 1, where Brad McCoy was assigned. If you turn
right at the light and follow the road toward West Virginia, the
narrow valley formed by Slate Creek widens a bit about three
quarters of a mile east of town. There a bridge spans the creek and
leads into a small subdivision called Longbottom. The first two rows
back from the creek are well-kept brick and frame ranch homes whose
middle-class owners are likely to be teachers, shop owners or coal
company supervisors. Farther back a few older frame houses are more
typical of the area's working-class population. In 1980, Hezzie and
Betty McCoy lived in one of those houses, and after they were
married, Brad and Wanda were able to rent another one, less than two
blocks from Brad's mother and father.
When they were married, Wanda thought she might
return to high school in the fall, but she soon found she enjoyed
the life of a housewife. Brad's salary was enough to sustain their
simple needs, and Wanda decided to drop out of school. Working,
keeping house, visiting friends and family, Brad and Wanda settled
into the rented house in Longbottom and remained there until the
night Wanda Fay McCoy was murdered.
Human Rights Center
"DNA and the Death Penalty," by Victor Peskin.
In 1992, the issue of post-execution DNA testing
arose in the case of Roger Keith Coleman, who was executed on May
20. At his execution, Mr. Coleman stated, "An innocent man is going
to be murdered tonight. When my innocence is proven, I hope
Americans will realize the injustice of the death penalty as all
other civilized countries have."
A year earlier, a less accurate form of DNA
analysis placed him at the scene of the murder of Wanda McCoy. Based
largely on this evidence, he was convicted and sentenced to death.
Significant advances in DNA technology have since taken place.
In September 2000, several media organizations,
including The Washington Post and The Boston Globe petitioned a
Virginia judge to permit new DNA testing in the Coleman case. In
their petitions, the newspapers argued that society had a right to
know the truth about Coleman's guilt or innocence. The Virginia
Attorney General opposed the request and the Virginia courts have
denied the request.
The Roger Keith Coleman Page
Roger Keith Coleman was born on Nov. 1, 1958.
When he was just 22 years old, he was arrested for the rape and
murder of Wanda Fay McCoy. He lived in Grundy, Va. Grundy is a small
mining town, and news of his arrest spread fast. The gas station
next door to the court house erected an 8' x 4' lighted sign that
read "It's time for a new hangin' tree in Grundy."
Despite the sign and the many people in town
saying that they wanted to "get on the jury and help fry the son of
a bitch", the Buchannon County Courthouse denied a change of venue
for Roger and tried him there anyway. His lawyers did not use most
of the evidence that they had that could have proven Roger's
innocence and that fact that he did not have the time to commit the
murder, because they either did not have the evidence that they were
supposed to, or were too inexperienced to use what they had. One of
his lawyers had never been involved in a murder trial before, and
the other was just two years out of law school, and had never been
involved in a trial that involved blood or hair analysis. Both were
The expert witness for the state claimed that the
two pubic hairs found on the victims body were "consistent with
Coleman's "and that it was "unlikely" that they could have come from
anyone else. (This same man would later testify the same exact thing
in a different case, where after DNA analysis, the man was found
innocent beyond a shadow of a doubt).
When asked to see the DNA results from the tests
conducted in Coleman's case, trial lawyers were told that they had
been placed in the McCoy murder file after Coleman's execution and
sent to the state archives, but the file is now "missing". It has
also been stated that another man in the small town, who allegedly
raped, or attempted to rape several other women, has admitted to the
murder. He was said to have told one of the women that if she did
not cooperate he would "do [her] like he did the girl on Slate Creek".
When asked by her if he was referring to Wanda McCoy, he just hung
his head and said "yeah", when asked he was afraid that the police
would get him, he said no, because the case was closed.
All of these things were ignored due to one of
his attorneys making the trivial error in filing his appeal papers
one day too late, and the outrageous 21-day rule, which restricted
Virginia prisoners to finding all their evidence within 21 days of
sentencing. Any evidence found after that three-week period will not
be looked at by our courts.
Roger maintained that he was innocent throughout
the entire time between his arrest and execution on May 20, 1992.
--Eleven years!!! Roger had a family who I have spoken to, who just
want to see his name cleared before they die. They suffered a great
loss when Roger was executed, as did the Thompson and McCoy and
Coleman family when Wanda was murdered. This is a horrible situation
that has taken two people from one family. (Wanda was Roger's sister-in-law)
A family that suffers that loss everyday. I intend to clear the name
of this man and make the public aware of the terrible error rate
(68%) of our judicial system.
Judge Denies DNA Retest in Coleman Case
June 2, 2001
A Buchanan County circuit court judge has
rejected requests by a New Jersey charity, the Richmond Times-Dispatch
and several other newspapers to retest DNA evidence in the case of
Roger Keith Coleman, executed in 1992 for a rape and capital murder
in Grundy. "The court finds that to order re-testing of the Coleman
DNA at this stage would have no bearing on the fairness of the death
penalty as it is now administered or on the public confidence of the
criminal justice system," wrote Judge Keary R. Williams in a 10-page
Coleman's execution drew international protests
from capital punishment opponents who contend he was innocent of the
rape and murder of Wanda McCoy. Many still contend he was innocent,
though an earlier DNA test strongly suggested his guilt and he
failed an eleventh-hour polygraph test. Williams said that "further
testing would would provide no benefit in this case where the
defendant was convicted, given the opportunity [to] prove his
innocence following conviction in every manner possible at the time,
pursued every post-trial remedy available to him, and most
importantly, where the sentence was carried out nine years ago." He
said the newspapers lacked the legal standing to make the request.
In addition to The Times-Dispatch, The Boston Globe, The Washington
Post and The Virginian-Pilot were seeking the test.
In rejecting the requests, the judge asked the
Virginia attorney general's office to write an order that the
petition of the newspapers and Centurion Ministries is denied and to
return the biological evidence from a laboratory in California to
Virginia where the state is free to destroy it.
The Crime Library
Problems with polygraphs
Roger Keith Coleman was arrested in Virginia for
the 1982 rape and murder of Wanda Fay McCoy. Many people felt that
he had an inadequate defense counsel and that there was convincing
evidence that proved his innocence, which his court- appointed
lawyers---both inexperienced---failed to introduce in court. The
state's expert claimed that two pubic hairs on the body were
consistent with Coleman's and it was unlikely that they had come
from anyone else, although that same expert was mistaken in his hair
analysis on a different murder case. There was also another man
found guilty of rape in the same small town who allegedly had
confessed to the murder while with one of his victims.
Coleman maintained his innocence and he asked for
a polygraph test. He was granted it, albeit under questionable
circumstances, and the state claimed that he failed it. On May 20,
1992, Coleman was executed.
Jim McCloskey, of Centurion Ministries in
Princeton, New Jersey, was deeply involved in the Coleman case for
over four years. His non-profit organization is devoted to getting
justice for convicted prisoners who are innocent and he tried hard
to get the evidence reconsidered. He reports the shocking fact that
that Coleman's polygraph test was administered on the morning before
he was scheduled to die. "When they offered that," he said, "we
fully recognized how insane it was giving a man a polygraph on the
morning of his execution, because his biological processes would be
going all over the place. We agreed to do it because we were
shooting for the moon. We were desperate and had no other options.
They did agree to allow us to have our polygrapher present for the
procedure, but they sandbagged us. They gave us the wrong address,
so we never saw the procedure."
Early that morning, Coleman was taken from his
cell and driven to Richmond, Virginia, where he was put into a room
by himself. He was tired and hungry, and disconsolate about what
might happen to him by nightfall. Without giving him anything to eat,
the polygraph was administered and the results analyzed. McCloskey
was told that he flunked. "We don't know whether he really flunked
or not. We don't know what questions were asked. We've never seen
anything on the results. If he did flunk, it wouldn't surprise me
given his state of mind, but we have no idea how the test was even
The problem with using a polygraph under such
conditions, he adds, is that the odds are stacked heavily against
the person. "You're strapped to a machine and you know that if you
pass, your life might be saved, but if you flunk or they just
interpret it as if you're flunking, it's the final nail on your
coffin. If you're nervous, how can they tell the difference between
fear and deception?"
Advocates of the polygraph claim accuracy rates
as high as 99 percent, but critics argue that the techniques are
based on questionable psychological assumptions. In a 1981 study of
six polygraph interpreters, even the most experienced of them had an
error rate of 18 percent, and the least experienced made
classification mistakes 55 percent of the time. In another study
that used actual criminal investigation data, the accuracy range was
63 to 76 percent. Examiners were consistently most likely to label a
truthful subject as untruthful rather than the other way around. It
seems that even if the machine can achieve a much higher accuracy
rate, the results depend more heavily on the skill level of the
State Objects to More Testing; DNA Work Sought
on Executed Man
By Frank Green - Richmond Times-Dispatch
October 07, 2000
The Virginia attorney general's office is
objecting to DNA testing that could prove the guilt or innocence of
Roger Keith Coleman, executed in 1992, because, among other reasons,
it says the public does not have a "right to know." The Boston Globe
and Centurion Ministries are seeking to have another DNA test on
spermatozoa on a vaginal swab taken from Wanda McCoy, who was raped
and murdered in Grundy in 1981. Coleman always maintained his
innocence of the crime.
Many agreed with him, and the case attracted
international media attention. Coleman even appeared on the cover of
Time Magazine. The evidence was DNA tested years after Coleman's
trial on behalf of Coleman. The test showed Coleman could not be
excluded as the rapist. New DNA testing techniques might
definitively prove his guilt or innocence, argues the newspaper and
Centurion, a New Jersey-based group that works to help free innocent
But the attorney general's office is opposing any
new tests of the evidence being kept in a lab in Richmond, Calif.,
by DNA expert Edward T. Blake, who performed the original test in
1991. Citing case law, Assistant Attorney General Pamela A. Rumpz
wrote Buchanan County Circuit Judge Keary Williams that "regarding
the public's 'right to know,' that right 'focuses on the public's
interest in important matters.'" "Twenty years after the crime and
more than eight years after the execution of the culprit, there
simply is no 'important' interest in retesting the very DNA evidence
which already limited the perpetrator to .2% of the Caucasian
population - including Coleman," she argued. The state also argued
that neither the Globe nor Centurion have any legal standing to
challenge Williams' Sept. 7 order to Blake to have the material sent
back to Virginia and state custody.
The Globe has expressed concerns that the
evidence could be damaged in transit. Rumpz said the state had no
objection to Williams amending his ruling to make sure the evidence
is protected. John A. Farrell, a Globe reporter, said the newspaper
is seeking DNA tests in cases in other states as well in light of
accusations made by opponents of capital punishment that innocent
people may be executed. "By using DNA technology to test the results
of previous executions, we can test that theory and arrive at some
answers," he said. The Globe has already won the first such court
order in the country in a Georgia case, Farrell said.
The attorney general's office cited a Buchanan
County court order dated Jan. 28, 1991, which notes that Blake had
assured the state that "Dr. Blake will maintain and preserve the
evidence at his laboratory until further order of the court." Paul
F. Enzinna, a Washington lawyer representing Centurion Ministries,
said he sees "common ground here that could form the basis for an
agreement by all the parties." He believes the state is leaving the
door open to test the material.
Enzinna said he has told the governor's office
that Centurion does not want the state to surrender the evidence, "all
we want is that the evidence gets tested, and if that means Paul
Ferrara testing it, that's fine." Ferrara is the head of the state's
Division of Forensic Science. "We're interested in getting this
stuff tested and however we can do that that best satisfies
everybody who's interested in this is fine with us. Whether Dr.
Blake does the testing and Dr. Ferrara goes out there and watches
him do it, or Dr. Ferrara does the testing here and we get to
observe that," said Enzinna.
Rumpz said there is no remaining factual issue as
to Coleman's guilt. Evidence presented at his trial included that
pubic hairs matching Coleman's were found on the victim's body,
Coleman had type B blood and so did the attacker, and the same type
of blood as the victim's was found on Coleman's jeans. The 1991 DNA
testing bolstered the case against him, said the attorney general's
office. In addition, Coleman, shortly before he was executed, took
and failed a polygraph examination. "Under all these circumstances,
the Globe's allegation that there is a legitimate public debate
regarding Coleman's guilt rings entirely hollow and is entitled to
no credit," Rumpz wrote.
BOOK REVIEW: MAY GOD HAVE MERCY: A True Story of
Crime And Punishment. (By John C. Tucker Norton. 358 pp. $27.50)
"This is a very fair book." That's what I jotted
down upon finishing May God Have Mercy, a fine debut by a Chicago
criminal-lawyer-turned- writer who now lives in Virginia's Tidewater
area. And it's not easy to be fair when your subject is 1 of those
volatile topics, such as politics and religion, about which most
people have strong and often diametrically opposed feelings. In fact,
May God Have Mercy should probably have been subtitled "A True Story
of Crime and the Death Penalty."
Tucker's subject is the case of Roger Keith
Coleman, which local readers may recall because it became a national
and even an international cause celebre, making the cover of both
Time and Newsweek. Coleman was convicted of the 1981 murder of Wanda
McCoy in Grundy, Va., a hamlet in the hardscrabble foothills of the
Appalachian Mountains. The only real industry is coal mining, and
many of the families mentioned in the book live in trailers angled
onto steep hillsides.
It's a hard life, and for Wanda McCoy it was an
even harder death: "Wanda McCoy was lying on her back....naked from
her chest down except for her blue striped socks. Her sweater and
bra were pushed up around her neck... A pair of blue jeans lay on
the bed, and dark blue satin panties were hooked around her left
ankle. A large pool of blood surrounded Wanda McCoy's head, and Brad
(her 23-year-old husband, who discovered the body) could see that
she had been stabbed twice in the chest. Blood still oozed onto the
floor from somewhere under her sweater." That's what death-penalty
lawyers call a "bad facts case."
33 days later, the Virginia State Police arrested
Roger Keith Coleman, 23, who was married to Wanda's 16-year-old
sister, Patricia. Tucker writes, "Coleman's alibi was not bad, but
there were some discrepancies, and in (the chief investigator's)
mind the discrepancies were beginning to look worse than no alibi at
all." What made the picture so dark was that in addition to an alibi
with holes Coleman also had a record -- he'd spent almost 2 years in
jail for attempted rape (he'd always claimed he was the victim of
faulty eyewitness identification). As so often in capital cases (ones
in which the state seeks the death penalty), Coleman's court-appointed
lawyers had virtually no criminal trial experience, and he was
swiftly convicted and sentenced to death.
For 10 years, Roger Coleman lived on death row,
where he became the focus and center of an increasingly large (and
in some cases influential) circle of people who believed him to be
innocent and were determined to get his conviction overturned. Among
those most central: Jim McCloskey, the founder of Centurion
Ministries, an organization devoted to clearing innocent inmates;
Kathleen ("Kitty") Behar, a young associate with Washington's Arnold
& Porter law firm, who worked on his case pro bono; Sharon Paul, a
pretty college student with whom Coleman (long since divorced by his
wife, the victim's sister) corresponded and eventually fell in love;
and Russ Ford, the prison chaplain at Virginia's Mecklenburg
Penitentiary. As Tucker relates it, the amount of work these people
did on Coleman's behalf, not to mention their emotional support, is
simply staggering and -- regardless of your opinion of the death
penalty -- inspiring.
The 1st part of the book moves rather slowly,
though that's probably necessary if the reader is to understand how
all these people came to believe in Coleman's innocence, but as the
narrative shifts from death row to death watch, the intensity
increases, as does the emotional impact. Here's but one example; it
involves the chaplain and another prisoner about to be executed: "For
some unexplained reason, after Ricky Boggs was strapped into the
chair and a mask placed over his face, there was a delay in throwing
the switch that would send nearly 2000 volts of electricity through
his body. Russ Ford stepped back to comfort Boggs, placing one hand
on the back of his head and taking his hand with the other. At that
instant the warden yelled, `No, Russ!' Turning at the sound, Ford
saw that a light on the deathhouse wall had turned green, a signal
that the executioner, in another room, should throw the switch. Russ
Ford was one step away when the roar of the current began and
Boggs's body lurched forward against the restraining straps."
By the book's end, as Tucker relates the myriad
of last-ditch efforts to halt, or at least postpone, the execution,
the narrative races. Among these efforts, in addition to the
standard pleas to the U.S. Supreme Court, are the attempt to get
permission for a lie detector test (it's finally given on the day of
the execution) or to get then-Virginia governor Douglas Wilder to
commute the sentence based on newly discovered DNA evidence.
Despite a phone call from Mother Teresa, Wilder
uses the fact that Coleman fails the lie detector test (a result
that surprises no one who knows anything about the polygraph) to
deny all appeals for mercy, much less clemency, thereby (at least
symbolically) pulling the switch himself.
Some of the last-minute details reflect actions
so inhumane that the author can't resist editorializing: "By
regulation, Roger's glasses and dental plate, apparently considered
potential instruments of suicide, have been taken away -- God forbid
he should cheat the executioner..." (But the chaplain negotiates
their return, so that once Coleman is safely strapped in, he can see
and read his last statement.)
At 11 p.m. on May 20, 1992, Roger Keith Coleman
was killed by the State of Virginia for the murder of Wanda McCoy --
a crime, as this sober, non-sensationalistic volume argues so ably,
he probably did not commit. May God have mercy, indeed.
(Source: Washington Post---John Greenya, who
often writes about true crime and the law, has written in opposition
to the death penalty.)
American Prosecutor Research
Buchanan County Circuit Judge Keary R. Williams
of Virginia denied a request to test the DNA evidence in the case of
Roger Keith Coleman, who officials executed in 1992 for the rape and
murder of his sister-in-law Wanda McCoy. The Washington Post, the
Boston Globe, the Richmond Times-Dispatch, and the Virginia Pilot of
Norfolk, as well as Centurion Ministries, a charity that
investigates claims of wrongful convictions, made the request. The
groups believed that Coleman, who always claimed his innocence, was
wrongly executed. In his opinion, Judge Williams said there was no
benefit to reexamining the case: "How can investigation of the death
penalty as it was implemented in 1992 be beneficial in scrutinizing
the death penalty as it is carried out in 2001 when the processes
are so different?"
Originally, the judge ordered that the biological
material be turned over to the state Division of Forensic Science,
but left the decision of whether to preserve or destroy the evidence
up to the agency. A spokesman for Virginia Attorney General Mark L.
Earley said the office agreed with the ruling; it does not believe
the newspapers have standing to sue for retesting or that such
testing would benefit the public. However, such a petition is not
novel. A collection of news organizations successfully petitioned
for post-execution DNA testing in Georgia in 2000. The tests were
(Sources: Carol Morello, Court Rejects DNA Test
for Man Killed By Va. in '92, Wash. Post, June 2, 2001, at A9; John
Aloysius Farrell, Judge Denies Bid for DNA Test to Verify Guilt of
Executed Man, Boston Globe, June 2, 2001, at A3.)
Innocence Project by Claudia
On May 20, 1992, the State of Virginia, with the
acquiescence of the federal government, executed Roger Keith Coleman
in the electric chair. New evidence, including evidence that another
man committed the crime, failed to stop his execution. The state and
federal governments failed to secure Coleman’s right to a fair and
impartial trial. A missed deadline barred appellate review and
resulted in his execution.
Wanda McCoy was attacked in, or just outside, her
home on March 10, 1981. She was then raped and murdered. There was
little sign of a struggle and, as she seldom opened the door when
she was home alone, it was assumed she had allowed her attacker to
come into the house. Roger Coleman, her brother-in-law, had access
to the house and immediately became a suspect. Coleman, who worked
in a mine, had reported to work that night but had left when his
shift was dismissed. A fingerprint was found on the front screen
door and a pry mark on the front door molding, and bloodstains
inside the house. The victim had broken fingernails, cuts on the
hands, and a dark, dusty substance on her body. The autopsy report
recorded wounds to her chest and throat, but did not mention
defensive wounds on her hands or a bruise on her arm. Limited
forensic testing was done.
Coleman had a well-documented list of his
whereabouts on the night of the murder and several alibi witnesses
who gave affidavits.
The state’s own timeline of events the night of
the murder suggested it was unlikely Coleman could have committed
Physical evidence from the crime scene –
including soil on McCoy’s hands, an unanalyzed fingerprint on the
front screen door of her house, and a pry mark on a door molding –
contradicted the prosecution’s theory that the victim willingly
allowed her murderer to enter her home, a theory used to convict
The prosecution claimed that there was little
sign of a struggle. However, the victim had defensive wounds,
including cuts on her hands, broken fingernails, and a bruise on her
upper arm but the defense did not introduce this evidence.
Testing of semen did not rule out Coleman but
later forensic opinions based on more sophisticated DNA testing
indicated a second person may have participated in the crime.
At trial, the prosecution presented evidence
given by a jailhouse informant who alleged Coleman had confessed to
the crime. The informant was released from jail soon after
Another man later stated that he had killed Wanda
McCoy. This man had a history of violence and rape.
Coleman’s chances to appeal his conviction in
state and federal courts were restricted when his lawyers missed a
deadline for filing his original appeal in state court by one day.
There was intense pressure in the community for
an arrest in the McCoy murder, and police were frustrated at the
lack of evidence tying Coleman to the crime. Coleman had been
convicted of attempted rape several years earlier despite his denial
of involvement and having an alibi. He served almost two years in
prison and was released with a record as a sex offender. This
affected his trial for the McCoy murder. Furthermore, McCoy’s
husband had immediately named Coleman as a likely suspect because of
his access to the McCoy household as Wanda’s brother-in-law.
An expert for the state examined two hairs taken
from the victim’s body, compared them with Coleman’s, and found they
were consistent with his hair type. Coleman’s attorney did not
present effective challenges to this testimony. The state presented
a seemingly impossible series of events between Coleman’s arrival at
the mine and the victim’s husband’s discovery of her body, but the
prosecution was able to point out some uncertainties in testimony of
alibi witnesses. Blood type testing did not rule Coleman out, nor
did it show he had a role in the murder.
A jailhouse informant claimed Coleman had
confessed to him while Coleman was in the county jail awaiting trial.
No other suspect was asked to provide hair or blood samples for
comparison with those recovered from the victim’s body. Roger
Coleman was convicted and sentenced to death.
Confusion and disagreements about deadlines in
the state courts led to a judge’s order refusing the state habeas
corpus petition. Coleman’s lawyers had 30 days under Virginia law to
file an appeal to the refusal. Their calculations were different
than those of the state. They sent the appeal by regular, not
certified mail, and it arrived after the 30-day deadline. Coleman’s
appeal was, therefore, dismissed without review. This ruling
crippled Coleman’s subsequent attempts to have his claims heard. The
U.S. Supreme Court supported the state’s position that the missed
deadline precluded federal review of his habeas claims. Clemency was
refused partly because of the certainty with which the courts
refused the appeals. Before Coleman’s scheduled execution, Governor
Douglas Wilder agreed to grant clemency if Coleman passed a
polygraph test. Coleman failed the test just hours before he was
Roger Keith Coleman was executed despite
compelling evidence of his innocence. Coleman’s attorneys had made
claims about a biased jury, ineffective assistance of counsel, and
exculpatory evidence withheld by the state, all of which would have
been constitutional violations. The merits of these claims were
never considered because his lawyers missed a deadline by one day.
He was executed without full review. As U.S. Supreme Court Justice
Harry Blackmun observed in his dissent, "one searches the majority’s
opinion in vain for any mention of Coleman’s right to a criminal
proceeding free from constitutional defect or his interest in
finding a forum for his constitutional challenge to his conviction
and sentence of death."
A Virginia court was asked in 2000 to order new
DNA testing on physical evidence. An independent laboratory is still
holding the samples, and the State of Virginia has demanded their
return. Fearing that the state may never make appropriate use of the
samples, the lab has refused to release them. A state court hearing
is scheduled for December.
Cruel and Incredible: The Case of Roger Coleman
All too frequently, compelling new claims of
innocence are never addressed during the appeal process because of
procedural barriers intended to prevent undue delay in carrying out
death sentences. This judicial vacuum can lead to bizarre events
immediately prior to an execution, where substantial doubt over the
prisoner's guilt remains but all legal avenues of appeal have been
On 22 May 1992, Roger Coleman was put to death by
the state of Virginia. Years after his conviction, new evidence was
uncovered which implicated a different suspect and which challenged
the prosecution’s theory of the crime. So troubling were the
lingering uncertainties concerning his guilt that Governor Douglas
Wilder offered Coleman a polygraph test (also known as a 'lie
detector'). The offer inferred that if Coleman passed the test, the
Governor might reconsider his decision not to commute the death
sentence. The test monitors the assumed rise in the heart rate and
blood pressure caused by the stress of lying to determine
truthfulness. It was carried out on the day of Coleman's scheduled
Strapped and wired for the test in a manner not
unlike that used for the death by electrocution he would face later
that same day, Coleman not surprisingly 'failed' the polygraph and
was executed within hours. Governor Wilder later told the press: "If
he had passed...it could have affected what the ultimate result
would have been".5
Roger Coleman was charged with the 1981 rape and
murder of his sister-in-law, Wanda McCoy. Too poor to afford a
private attorney, he was represented at trial by court-appointed
lawyers who had never handled a murder or rape case before and who
neglected to fully investigate many significant points of evidence.
At trial, the defence failed to challenge crucial aspects of the
prosecution's case, severely limiting the scope of Coleman's post-conviction
Although the case against him was entirely
circumstantial, Roger Coleman was sentenced to death. The only
direct evidence came from the testimony of Roger Matney, a jail-house
informant who claimed that Coleman had confessed to the crime. A
month before the trial, all four sentences which Matney was serving
were suspended and he was released from custody on the urging of
Coleman's prosecutor. Matney has since recanted his testimony.
On initial appeal, Coleman was represented by
attorneys who failed to file a timely notice of appeal with the
Virginia Supreme Court. The necessary paperwork was inadvertently
filed just after the 30-day deadline had expired. Prosecutors
requested that the Court dismiss the appeal without addressing its
merits because it was "procedurally defaulted"; the Court wrote a
one-paragraph order summarily denying Coleman's petition without
The federal courts ruled that Coleman could not
appeal on constitutional issues because he had "waived" his state
review by filing after the deadline. The US Supreme Court agreed,
citing the need to show adequate respect for the findings of state
courts and the obligation to protect state officials from having to
endure uncertainty and undue delay in the resolution of criminal
cases. The Supreme Court's decision in Coleman v. Thompson created a
new rule under which almost any failure of an inmate to meet the
procedural requirements of the state courts results in forfeiture of
the right to file a habeas corpus petition in federal court.
According to the Supreme Court decision, "Coleman
must bear the risk of attorney error that results in procedural
default". The Court further ruled that Coleman had no right to
challenge mistakes made by his appellate attorneys, since he was not
constitutionally entitled to a lawyer at that point in the
Before his arrest, Roger Coleman was a coal miner
in rural Virginia. It defies all reason to presume that he was fully
versed in Virginia capital trial procedures and the complexities of
Federal habeas corpus appeals. For the US Supreme Court to conclude
that the defendant must bear the fatal consequences of mistakes made
by his lawyers is to render meaningless the most basic legal
protections afforded by the US Constitution.
Once a prisoner is executed in the USA, the case
is considered legally closed. The US criminal justice system offers
no legal mechanism to review posthumous claims and uncover lethal
error. It will likely never be known with absolute certainty if
Roger Coleman was guilty or innocent of the crime for which he was
put to death. Nonetheless, his case history illustrates many of the
structural flaws which can result in mistaken executions. Its
troubling outcome establishes beyond doubt that the authorities in
the USA are prepared to execute prisoners even when confronted with
substantial questions about their actual guilt.
1, 1958 – May 20, 1992) was a Grundy, Virginia, coal miner convicted
and executed for the murder of his sister-in-law, Wanda McCoy.
Coleman's case drew national attention before and after his
execution because of his repeated claims of innocence.
On January 12,
2006, Virginia Governor Mark Warner announced that recently
re-examined DNA evidence had conclusively proved Coleman's guilt.
Wanda McCoy was attacked in her home on March 10, 1981. She was
raped, stabbed to death, and nearly beheaded. There was little sign
of a struggle and, as she seldom opened the door when she was home
alone, it was assumed she had allowed her attacker into the house.
Roger Coleman, her
sister's husband, had access to the house and immediately became a
suspect. Coleman, who worked in a mine, had reported to work that
night but had left when his shift was dismissed.
A fingerprint was
found on the front screen door and a pry mark on the front door
molding, and bloodstains inside the house. The victim had broken
fingernails, cuts on the hands, and a dark, dusty substance on her
convicted of raping and murdering McCoy in 1982.
for the case asserted:
The lack of forced
entry showed McCoy knew her attacker
Coleman had been
previously convicted of attempted rape and indecent exposure
A hair found on
McCoy's body belonged to Coleman
Blood found on
Coleman's clothes was McCoy's blood type
A fellow prisoner
maintained that Coleman had confessed the crime
There was indeed
evidence of forced entry (the pry mark on the door).
DNA tests of the
semen found on the victim's body implicated more than one person
claimed there was no struggle, however the victim had cuts, a bruise
in her arm and broken fingernails
Coleman had a
documented alibi and several witnesses who gave affidavits
presented by the prosecution suggested that it was unlikely Coleman
committed the crime
Another man who
had previously been convicted of rape claimed to have killed McCoy
appeal to the Virginia Supreme Court was denied, and the Supreme
Court of the United States denied certiorari. Coleman then filed a
petition for a writ of habeas corpus in the Circuit Court for
Buchanan County, raising several federal constitutional claims for
the first time.
A two day
evidentiary hearing was held, the court denied all of Coleman's
claims, and on September 4, 1986, the court entered its final
appealed to the Virginia Supreme Court, but this appeal was
dismissed on the motion of the Commonwealth because his notice of
appeal was not filed timely.
Court Rules require that a notice of appeal be filed within 30 days
of entry of the final judgment; Coleman's notice of appeal was filed
on October 7, which was 33 days after the circuit court entered its
for Habeas Corpus
After his appeal
was dismissed on procedural grounds, Coleman petitioned in the
United States District Court for the Western District of Virginia
for a writ of habeas corpus.
courts generally may not review a state court's denial of a federal
constitutional claim if the denial is based on a state procedural
default that is independent of the federal claim and is sufficient
to support the prisoner's continued custody.
Since Coleman was
in procedural default of his appeal in state court, this was
independent of his federal constitutional claims, and was adequate
to support his continued custody, he was ineligible for relief in a
federal habeas corpus proceeding.
that Coleman was in procedural default, the District Court addressed
all of his claims, finding them without merit. The United States
Court of Appeals for the Fourth Circuit affirmed the District
Court's ruling, as did the Supreme Court of the United States.
In 1990, new DNA
tests seemed to add to evidence against Coleman by putting him
within the 2% of the population who could have committed the crime.
Some argued that DNA and blood tests combined reduced this figure to
While on death
row, Coleman's claims of innocence reached an international
audience. Time magazine put Coleman on its cover and Pope John Paul
II opposed his execution. Virginia Govenor Douglas Wilder received
13,000 calls and letters about Coleman from around the world, nearly
all in favor of clemency.
Wilder arranged a
secret, last-minute lie-detector test for Coleman, who failed.
Coleman shared a final meal of cold pizza with James McCloskey,
executive director of Centurion Ministries, who had been working
since 1988 to prove Coleman's innocence.
On May 20, 1992,
the Commonwealth of Virginia executed Roger Keith Coleman in the
electric chair. As Coleman was strapped into the electric chair, he
made one final declaration. "An innocent man is going to be murdered
tonight," he said. "When my innocence is proven, I hope America will
realize the injustice of the death penalty as all other civilized
Examination of Evidence
Ministries and four newspapers, including the Washington Post,
sought to have DNA evidence from the case re-examined in 2000. In
2002 the Virginia Supreme Court declined their request, and
Centurion Ministries subsequently appealed to Virginia Governor Mark
On January 5,
2006, Warner ordered DNA evidence to be retested. The evidence was
sent to the Centre for Forensic Science in Toronto, which determined
that there was a 1 in 19 million chance that the DNA belonged to
someone other than Coleman.
On January 12,
2006 Warner's office announced that the test results confirmed
the Anti-Death Penalty Movement
Coleman's case was
the second instance in U.S. history where DNA evidence was examined
after the person in question had been executed. DNA tests in 2000
were inconclusive for Ellis W. Felker, who was executed in 1996 in
Georgia. (2000 DNA tests proved the innocence of Frank L. Smith, who
died of natural causes while on Florida's death row.)
believed Coleman's innocence had expected DNA tests to exonerate
Coleman. Some death penalty opponents also believed that evidence of
an innocent man's execution would have a profound impact on the
death penalty debate in the United States, and help accelerate a
growing reluctance to use execution.
results prompted death penalty supporters to argue that Coleman's
case instead showed that proper safegards were in place.
Dao, James. "DNA Ties Man Executed in '92 to the
Murder He Denied." New York Times, January 13, 2006.
"DNA: Virginia Executed the Right Man," CNN.com,
January 12, 2006.
Glod, Maria and Michael D. Shear. "DNA Tests Confirm
Guilt of Executed Man." Washington Post, January 13, 2006, p.
Glod, Maria. "DNA Tests May Signal Shift in Death
Penalty Debate." Washington Post, January 17, 2006, p. B5.
Still, Kathy. "'Tell Them I Said Hello,' He'd Say."
Bristol Herald Courier, January 11, 2006.
Tanner, Robert. "DNA Test Confirms Guilt in 1992
Execution" Associated Press, January 13, 2006.
"Tests Reaffirm Coleman's Guilt."
Times-Dispatch, Jan 12, 2006.
Willing, Richard. "DNA Tests Confirm Man Executed in
1992 was Guilty." USA TODAY, January 12, 2006.
Cruel and incredible: the case of Roger Coleman
too frequently, compelling new claims of innocence are never
addressed during the appeal process because of procedural
barriers intended to prevent undue delay in carrying out death
sentences. This judicial vacuum can lead to bizarre events
immediately prior to an execution, where substantial doubt over
the prisoner's guilt remains but all legal avenues of appeal
have been exhausted.
22 May 1992, Roger Coleman was put to death by the state of
Virginia. Years after his conviction, new evidence was uncovered
which implicated a different suspect and which challenged the
prosecution’s theory of the crime. So troubling were the
lingering uncertainties concerning his guilt that Governor
Douglas Wilder offered Coleman a polygraph test (also known as a
The offer inferred that if Coleman passed the
test, the Governor might reconsider his decision not to commute
the death sentence. The test monitors the assumed rise in the
heart rate and blood pressure caused by the stress of lying to
determine truthfulness. It was carried out on the day of
Coleman's scheduled execution.
Strapped and wired for the test in a manner not unlike that used
for the death by electrocution he would face later that same
day, Coleman not surprisingly 'failed' the polygraph and was
executed within hours. Governor Wilder later told the press: "If
he had passed...it could have affected what the ultimate result
would have been".(5)
Roger Coleman was charged with the 1981 rape and murder of his
sister-in-law, Wanda McCoy. Too poor to afford a private
attorney, he was represented at trial by court-appointed lawyers
who had never handled a murder or rape case before and who
neglected to fully investigate many significant points of
evidence. At trial, the defence failed to challenge crucial
aspects of the prosecution's case, severely limiting the scope
of Coleman's post-conviction appeals.
Although the case against him was entirely circumstantial, Roger
Coleman was sentenced to death. The only direct evidence came
from the testimony of Roger Matney, a jail-house informant who
claimed that Coleman had confessed to the crime. A month before
the trial, all four sentences which Matney was serving were
suspended and he was released from custody on the urging of
Coleman's prosecutor. Matney has since recanted his testimony.
initial appeal, Coleman was represented by attorneys who failed
to file a timely notice of appeal with the Virginia Supreme
Court. The necessary paperwork was inadvertently filed just
after the 30-day deadline had expired. Prosecutors requested
that the Court dismiss the appeal without addressing its merits
because it was "procedurally defaulted"; the Court wrote a
one-paragraph order summarily denying Coleman's petition without
federal courts ruled that Coleman could not appeal on
constitutional issues because he had "waived" his state review
by filing after the deadline. The US Supreme Court agreed,
citing the need to show adequate respect for the findings of
state courts and the obligation to protect state officials from
having to endure uncertainty and undue delay in the resolution
of criminal cases. The Supreme Court's decision in Coleman v.
Thompson created a new rule under which almost any failure
of an inmate to meet the procedural requirements of the state
courts results in forfeiture of the right to file a habeas
corpus petition in federal court.
According to the Supreme Court decision, "Coleman must bear the
risk of attorney error that results in procedural default". The
Court further ruled that Coleman had no right to challenge
mistakes made by his appellate attorneys, since he was not
constitutionally entitled to a lawyer at that point in the
Before his arrest, Roger Coleman was a coal miner in rural
Virginia. It defies all reason to presume that he was fully
versed in Virginia capital trial procedures and the complexities
of Federal habeas corpus appeals. For the US Supreme
Court to conclude that the defendant must bear the fatal
consequences of mistakes made by his lawyers is to render
meaningless the most basic legal protections afforded by the US
Once a prisoner is executed in the USA, the case is considered
legally closed. The US criminal justice system offers no legal
mechanism to review posthumous claims and uncover lethal error.
It will likely never be known with absolute certainty if Roger
Coleman was guilty or innocent of the crime for which he was put
to death. Nonetheless, his case history illustrates many of the
structural flaws which can result in mistaken executions. Its
troubling outcome establishes beyond doubt that the authorities
in the USA are prepared to execute prisoners even when
confronted with substantial questions about their actual guilt.
innocent man is going to be murdered tonight. When my innocence is
proven, I hope Americans will realize the injustice of the death
penalty as all other civilized countries have."
— Roger Keith Coleman, executed in Virginia on May 20, 1992
Gone, but not Forgotten
It’s been 13 years since the
State of Virginia executed Roger Coleman for the rape and murder of
his sister-in-law, but he’s still the darling of the anti-death
penalty faction because they’re convinced he was innocent.
Virginia has successfully
fended off media attempts to pay for DNA testing that might
establish once-and-for-all whether or not he had anything to do with
sexually assaulting and killing Wanda Faye Thompson McCoy.
“DNA testing is without a
doubt a very powerful tool, but it is a tool for the living,” said a
spokesman for the state Attorney General, after a group of
newspapers pressed the former Virginia governor to allow the
testing. “Roger Coleman was and is guilty of the rape and murder of
Wanda McCoy. All the repeated histrionics by various lawyers won’t
Hours before he died in the
electric chair, Coleman failed a polygraph exam, but some of his
supporters point out that the timing and stakes involved might have
rendered the test meaningless.
His case had been appealed and
argued all the way to the United States Supreme Court. In all, the
case was reviewed 12 times in litigation.
In typical media
oversimplification, the press pointed out the state’s “rush to
judgment” despite the fact that it took 11 years for Coleman’s
appeals to work their way through the system.
Bradley D. McCoy, 21, and his
wife, Wanda Fay McCoy, 19, lived outside Grundy, Virginia in a
rented house. They had no children. Wanda was not employed; her
husband was a parts clerk for United Coal Company, working the
second shift from 3:00 p.m. to 11:00 p.m. On March 10, 1981, at 2:15
p.m., McCoy went to work, leaving Wanda at home alone.
McCoy testified that about
9:00 p.m. he telephoned Wanda “to see if she was okay.”
At the end of his shift, McCoy
arrived home about 11:15 p.m. Entering his home, he saw that the
coffee table had been moved, there were “slight drips of blood on
the floor,” and the light and the television were on. Going to the
back bedroom, where a light was on, he found his wife lying on her
back on the floor. Her hair was pulled over her face, she had a
wound in her chest, and there was blood beside her head. Her arms
were stretched behind her head and her legs were lying straight out
Coleman’s wife was Wanda’s
younger sister and the Colemans lived in the home of Coleman’s
grandmother, which was a five-minute walk from the McCoy house.
Dr. Thomas D. McDonald, the
medical examiner, made a superficial examination of Wanda, confirmed
that she was dead, but did not move her pending the arrival of a
State Police special investigating unit. She had a large cut to her
neck and two puncture wounds in her chest. Dr. McDonald determined
that the cause of death was the “slashing wound to the throat.” The
body was still warm, rigor mortis had not set in, and Dr. McDonald
estimated that Wanda had died about 10:30 p.m., or within 30 minutes
before or after that time.
At daybreak, police measured
the depth of Slate Creek, located 75 to 100 yards from the McCoy
house, at 10 to 12 inches. The creek depth is important because the
clothes Coleman wore that night indicate he waded through that
The pathologist who conducted
the autopsy found two foreign hairs in the victim’s genital area. He
submitted these samples of her pubic hairs, blood, swabs from her
mouth, hands, vagina, and rectum, and her underwear to the state
Coleman was a coal miner. The
statement he gave to police was exculpatory, purporting to account
in detail for his time on the night of the killing. He said he left
his home at 8:30 p.m., left a local convenience store at 9:05 p.m.,
went to work when he learned that his shift at the mine had been
terminated, and arrived at 10:50 p.m. at a bathhouse in town where
he took a shower and changed his clothes before returning home.
Coleman agreed to supply
samples of his blood, head hairs, pubic hairs, and saliva. These
were taken to the Bureau of Forensic Science.
Elmer Gist, Jr., a forensic
serologist employed by the Commonwealth of Virginia Bureau of
Forensic Science, testified that he made an analysis of the items
delivered to him. He said the two apparently foreign hairs found in
Wanda’s pubic area were, in fact, not those of the victim but were
consistent with pubic hair samples taken from Coleman. Gist
concluded that these two hairs came either from Coleman or, by a
possible but unlikely coincidence, from some other person of the
same race whose hair had the same color, diameter, general
configuration, and microscopic characteristics.
Coleman was a secretor, one
whose “blood type factor” is present “in semen, saliva or other body
fluids,” but 80 percent of the population are secretors. Coleman had
Type B blood, a rare type possessed by only 10 percent of the
population. Wanda’s blood was type O, a type which 40 percent to 45
percent of the population have; her husband’s was Type A.
From Gist’s examination of the
vaginal specimen taken from the victim’s body he found that semen
had been deposited in her vagina by a secretor with Type B blood. He
also determined that a bloodstain on Coleman’s blue jeans was made
by Type O human blood. Gist found blood on one of Coleman’s knives
but not in sufficient quantity to enable him to determine whether it
was human or animal blood. According to Gist, Coleman’s blue jeans
were wet from the bottom of the legs to a height of about 12 inches.
They were dirty and had “blackish stains on the upper legs in
particular.” Photographs of the victim depicted a very dark, fine
substance on her hands.
There was a jailhouse snitch
who testified, as well.
Roger L. Matney, a convicted
felon, testified that when he had been incarcerated in the same cell
block with Coleman in the county jail, Coleman had described for him
the killing and rape. According to Matney, Coleman drew a diagram of
the McCoy house and said he and another man were in the house and
after the victim’s husband called her about 9:00 p.m., Coleman’s
companion cut her and she began to scream.
Coleman told Matney the two
men took the victim to the bedroom and both raped her. The knife
“was supposed” to have been hidden under Black Watch Bridge. Coleman
began to say something about a paper towel when the conversation
ended. (Other evidence of the Commonwealth showed that a paper towel
was found near the victim ’s body).
Elmer T. Miller, a forensic
scientist, testifying for the defense, said that from his
examination of swabs received from Dr. Oxley he determined that the
very dark, fine substance found on the victim’s hands was soil and
particles of plant material, not coal dust.
Shortly before 11:00 p.m. on
March 18, 1982, the jury found Coleman guilty of capital murder.
Brenda R., 36, testified as a
witness for the Commonwealth during the penalty phase. She described
an attempted rape committed by Coleman on April 7, 1977.
Coleman, whom she had never
seen before, was admitted to the house when he asked for a drink of
water. After some conversation, Coleman pulled a gun and forced her
to tape her daughter’s hands and feet and place her in a child’s
rocking chair. Coleman then walked Mrs. R. at gunpoint upstairs to
the bedroom where he ordered her to undress. Seizing an opportunity
to escape when Coleman went for his gun, Mrs. R. ran downstairs,
picked up her daughter, and fled from the house and screamed for
help. As neighbors came to the rescue, Coleman ran away. The entire
episode lasted approximately ten minutes, according to Mrs. R. and
throughout this time Coleman “never really raised his voice,” which
she described as “[v]ery cold.” She recalled, “It was just like, do
it or die.”
For that crime, he was
sentenced to serve three years in the State penitentiary.
Coleman’s appeals in state
court went nowhere, and his federal appeals were just as
Under Chief Justice William H.
Rehnquist, the Supreme Court put strict new limits on the ability of
state inmates to present habeas corpus petitions in federal court.
Coleman’s case itself helped
Rehnquist in his quest to speed the process. On a 6-3 vote in the
case of Coleman vs. Thompson, the high court said that if a defense
lawyer errs in a state court — in this instance, by filing a late
appeal — the inmate may not get a further hearing in the federal
Because of that ruling,
federal judges were under no obligation to grant Coleman a hearing
on the “newly revealed evidence.”
The so-called new evidence was
a DNA test that put Coleman in a group of less than 0.2 percent
population that could have committed the crime. The defense claimed
the test was misinterpreted.
However, a week before
Coleman’s execution, U.S. District Judge Glen W. Williams said that
the new evidence did not convince him that Coleman was not guilty.
Shortly before he was
executed, Time Magazine put him on its cover and the Washington Post
argued that he would be executed because he was “too poor to hire a
Was Coleman innocent? A dozen
of his peers believed beyond a reasonable doubt that he was not. The
justice system reviewed his conviction over and over and found that
his arrest, trial, conviction, and sentence were within the bounds
of the U.S. Constitution.
There’s absolutely nothing
wrong with opposing the death penalty and wanting to change the law.
The problem is relying on half-truths and mistaken assumptions to
point out the unfairness of the system. Anti-capital punishment
forces could do a lot better than Roger Coleman if they need a
v. Commonwealth, 307 S.E.2d 864 (Va. 1983)
Tried by a jury under indictments charging him
with the rape of Wanda Faye Thompson McCoy and with the willful,
deliberate, and premeditated killing of the same victim during the
commission of rape, capital murder as defined in Code § 18.2-31(e).
Roger Keith Coleman was found guilty as charged. The jury fixed his
punishment for rape at confinement in the penitentiary for life.
In the second part of the bifurcated proceeding
required by Code §§ 19.2-264.3 and -264.4 in the capital murder
case, the jury fixed Coleman's sentence at death. On April 23, 1982,
after considering the probation officer's report, the trial court
imposed the death sentence; in the same order, the court entered
judgment on the jury verdict in the rape case. We have consolidated
the automatic review of Coleman's death sentence with his appeal of
his conviction of capital murder and have given them priority on our
The evidence against Coleman was entirely
circumstantial; it will be stated in the light most favorable to the
Commonwealth. Bradley D. McCoy, 21, testified that on the date of
the murder he and his wife, Wanda Faye McCoy, who was 19, lived on
the outskirts of Grundy in a rented house at Long Bottom on Slate
Creek. The McCoys, who had been married for two and one-half years,
had no children. Wanda was not employed; her husband was a parts
clerk for United Coal Company, working the second shift from 3:00
p.m. to 11:00 p.m. On March 10, 1981, at 2:15 p.m., McCoy went to
work, leaving Wanda at home alone.
McCoy testified that about 9:00
p.m. he telephoned Wanda "to see if she was okay." They talked about
10 or 15 minutes, discussing among other things how they would spend
an anticipated income tax refund. McCoy said he always telephoned
his wife at this time, when he took a break from work, because she
was "more or less afraid to stay by herself" and was "shy." She did
not indicate anyone was with her and McCoy believed she would have
told him "if anyone was there or had been there that day."
At the end of his shift, McCoy drove home in his
car, arriving about 11:15 p.m. Although Wanda usually left the porch
light on for him, no outside lights were shining when he knocked on
the door; Wanda usually kept both the storm door and the wooden
front door locked. Receiving no answer, McCoy opened the storm door,
which was unlocked, then opened the front door with his key, and
entered the living room. He saw that the coffee table had been
moved, there were "slight drips of blood on the floor," and the
light and the television were on.
He called for Wanda but heard nothing. Going to
the back bedroom, where a light was on, he found his wife lying on
her back on the floor. Her hair was pulled over her face, she had a
wound in her chest, and there was blood beside her head. Her arms
were stretched behind her head and her legs were lying straight out
and apart. She appeared to be dead; McCoy did not touch her. He
found no signs of forced entry into the house.
McCoy telephoned his father, Max McCoy, known as
Hezzie, who lived 400 to 500 yards away, and told him that Wanda had
been killed. McCoy turned on the porch light, initially waited for
his father, but after a few minutes ran to meet him. After Hezzie
called the sheriff's office at 11:21 p.m., McCoy and his father
returned to McCoy's house, looked at the body but did not touch it,
and met the police officers who began to arrive.
McCoy said that Coleman's wife was a younger
sister of Wanda's, that the Colemans lived in the home of Coleman's
grandmother, which was a five-minute walk from the McCoy house, and
that on the night before Wanda's death the Colemans stopped by the
McCoys' but only Coleman's wife came into the house. Sergeant Steven
D. Coleman, of the Buchanan County Sheriff's Department, arrived
about 11:25 p.m. accompanied by another officer. He tried to check
Wanda's neck for a pulse but found it "so badly torn up" that he
could not do so. There was a large gaping hole in the front of her
neck; a pool of blood was around her head.
Other local and state law enforcement officers
promptly came to the McCoy house to assist in the investigation.
Randall S. Jackson, Chief of Police for the Town of Grundy, arrived
about 11:27 p.m. He observed what appeared to be bloodstains on the
floor and wall of the living room, and "tracks of blood, where
something had been dragged" through the hallway and into the bedroom
in which he found Wanda's body. Jackson felt her wrist, which was "very
warm," but found no pulse. He sent an officer for Dr. Thomas D.
McDonald, the medical examiner, and arranged to secure the premises.
At daybreak, Jackson measured the depth of Slate Creek, located 75
to 100 yards from the McCoy house, at 10 to 12 inches.
Dr. McDonald, who lived nearby, arrived at 11:35
p.m. He made a superficial examination of Wanda, confirmed that she
was dead, but did not move her pending the arrival of a State Police
special investigating unit. Wanda was lying on her back, partially
clothed, with her panties around her left ankle, arms over her head,
and legs extended. She had a large laceration of the neck and two
puncture wounds in her chest. Dr. McDonald determined that the cause
of death was the "slashing wound to the throat." The body was still
warm, rigor mortis had not set in, and Dr. McDonald estimated that
Wanda had died about 10:30 p.m., or within 30 minutes before or
after that time.
A neighbor testified that when she took the trash
out of her house about 10:30 p.m. she saw the porch light burning at
the McCoy residence. The Commonwealth offered color photographs
showing the scene of the crime and different views of the victim's
body. Over Coleman's objection, the trial court admitted 14 of the
photographs after excluding two as repetitious and one as
The victim's body was removed to Roanoke where
Dr. David W. Oxley performed an autopsy on March 12. Dr. Oxley
testified that death was caused by a "slash wound" of the throat
with cutting of the "right carotid artery, jugular vein and larynx."
He also found two stab wounds in the chest. One, measuring 1 1/4
inch by 1/16 inch, with a depth of 4 inches, had penetrated the
heart and lung. Because there was little or no hemorrhaging from
this wound Dr. Oxley concluded it had been inflicted after death.
The other, measuring 1 3/4 inch by 1/16 inch, also with a depth of 4
inches, had penetrated the liver; Dr. Oxley was of opinion that this
wound was inflicted after death or close to the time of death.
He described the neck wound as a single cut, two
to three inches in depth without "hesitation marks," leading from
the right side of the neck to the left and downward. Dr. Oxley found
two foreign hairs in the victim's genital area. He submitted these,
samples of her pubic hairs, blood, swabs from her mouth, hands,
vagina, and rectum, and the panties found wrapped around her left
foot, to Elmer Gist, Jr., a forensic scientist.
Out of the presence of the jury, the trial court
conducted a hearing on the admissibility of statements made by
Coleman on March 11 and 12 to Jack E. Davidson, Special Agent with
the Virginia State Police, one of the investigating officers.
Davidson testified there were several suspects, including Coleman,
whose activities police were "exploring at that particular time." He
and another officer went to Coleman's grandmother's residence on
March 11 and asked Coleman "if it was all right, if he could talk to
us." According to Davidson, Coleman said "sure," and the interview
was conducted, beginning at 12:32 p.m., as the two sat in Davidson's
car; the other officer remained at the house.
Davidson explained that he did not give Coleman
Miranda warnings because the suspect was "not in an accusatory
status" but was "in an investigative status." Davidson said Coleman
was not under arrest and was free to go at any time. The officer was
unable to record his interview because of a malfunction of the
equipment, but he made notes of Coleman's statement. Coleman was a
coal miner, employed by T J and M Coal Company.
His statement was exculpatory, purporting to
account in detail for his time on the night of the killing. Thus, he
said he left his home at 8:30 p.m., left the Speedy Market at 9:05
p.m., went to other listed places at specified times before and
after finding that his shift at the mine had been terminated, and
arrived at 10:50 p.m. at the bathhouse in town where he took a
shower and changed his clothes before returning home. When Davidson
asked Coleman for the clothes he wore that night, Coleman turned
over to him a plastic bag of clothing and a knife. In the bag was a
pair of dirty blue jeans; the bottom 10 to 12 inches of each pants
leg were wet. Davidson had the clothing delivered to the Bureau of
Forensic Science in Roanoke.
On March 12, Davidson interviewed Coleman again.
Davidson testified that Coleman was still a suspect, but was free to
leave if he wished to do so, and was not given Miranda warnings.
Davidson told Coleman that he had investigated the mine site and
found there was no water there to get his blue jeans wet. Coleman
then said when he took a shower at the bathhouse, he probably laid
his blue jeans down and water from the shower got them wet.
Subsequently, Coleman relinquished another knife to Davidson.
Coleman was arrested on April 13. Over Coleman's
objection, the trial court ruled the statements of March 11 and 12
were admissible because Coleman gave them when he was neither under
arrest nor in a "custodial interrogation situation" but instead was
free to leave; Miranda warnings, therefore, were not required. A
portion of one of the statements relating to polygraph examinations
On March 13, Davidson testified, he met Coleman "at
his in-laws' residence" and asked if he would consent to a search
for body fluids and hair. Davidson said Coleman agreed and, after
being informed of his constitutional right to insist upon a search
warrant, signed a consent authorizing a warrantless search of his
body. The consent permitted removal of any property "or body fluids."
Davidson testified that Coleman also consented to
have samples of body hair taken. Over Coleman's objection, the trial
court ruled, on the basis of Davidson's uncontradicted testimony,
that Coleman had consented to a search of his body and that all
items taken in the search would be admissible. Davidson stated that
samples of Coleman's blood, head hairs, pubic hairs, and saliva were
taken and mailed to the Bureau of Forensic Science.
Elmer Gist, Jr., a forensic serologist employed
by the Commonwealth of Virginia Bureau of Forensic Science,
testified that he made an analysis of the items delivered to him by
Dr. Oxley and the investigating officers. He said the two apparently
foreign hairs found in Wanda's pubic area were, in fact, not those
of the victim but were consistent with pubic hair samples taken from
Gist concluded that these two hairs came either
from Coleman or, by a possible but unlikely coincidence, from some
other person of the same race whose hair had the same color,
diameter, general configuration, and microscopic characteristics.
Gist testified that Coleman was a secretor, one whose "blood type
factor" is present "in semen, saliva or other body fluids," and that
80% to 85% of the population are secretors. Gist determined that
Coleman had Type B blood, a rare type possessed by only 10% of the
population. Wanda's blood was Type O, a type which 40% to 45% of the
population have; her husband's was Type A.
From Gist's examination of the vaginal specimen
taken from the victim's body he found that spermatozoa had been
deposited in her vagina by a secretor with Type B blood. He also
determined that a bloodstain on Coleman's blue jeans was made by
Type O human blood. Gist found blood on one of Coleman's knives but
not in sufficient quantity to enable him to determine whether it was
human or animal blood. According to Gist, Coleman's blue jeans were
dirty and had "blackish stains on the upper legs in particular."
Photographs of the victim depicted a very dark, fine substance on
her hands. Charles Crabtree, owner of the Speedy Market, testified
that Coleman came into his store on March 10 about 8:00 p.m. and
stayed about ten minutes.
Gary Scott Stiltner testified that on March 10 he
was scheduled to work his regular 3:30 to 11:30 shift but had not
gone to work. About 10:15 or 10:20 p.m. Coleman came to his trailer
in Boyd's Trailer Park, where he and his wife, Sandra, and infant
daughter lived, and asked for the return of a tape which Stiltner's
wife had borrowed. Upon receiving the tape, Coleman departed. Sandra
K. Stiltner recounted an incident that occurred on Friday, March 6.
Shortly after her husband went to work that
afternoon, Coleman stopped by her trailer and discussed tapes with
her and a neighbor. During a brief interval when they were alone,
Coleman asked her what she liked to drink and offered to get her
whatever she wanted, but she declined and left to join other
neighbors. Sandra Stiltner also testified that when Coleman stopped
by for his tape on March 10 she glanced at a clock and noticed that
it was 10:20 p.m.
Roger L. Matney, a convicted felon, testified
that when he had been incarcerated in the same cell block with
Coleman in the county jail, Coleman had described for him the
killing and rape of the victim. According to this witness, Coleman
drew on a newspaper a diagram of the McCoy house and said he and
another man were in the house and after the victim's husband called
her about 9:00 p.m., Coleman's companion cut her and she began to
Matney believed Coleman said the other man was "Danny
Ray." Coleman told Matney the two men took the victim to the bedroom
and both raped her. The knife "was supposed" to have been hidden
under Black Watch Bridge. Coleman began to say something about a
paper towel when the conversation ended. (Other evidence of the
Commonwealth showed that a paper towel was found near the victim's
Elmer T. Miller, a forensic scientist, testifying
for the defense, said that from his examination of swabs received
from Dr. Oxley he determined that the very dark, fine substance
found on the victim's hands was soil and particles of plant
material, not coal dust. Other witnesses for the defense testified
to times and places they had seen Coleman on the night of the crimes.
Kermit Stiltner said he saw Coleman at the Speedy
Market about 8:00 p.m. and talked with him 10 or 15 minutes. Johnny
L. Stiltner, a night watchman at T J & M Coal Company, who also
regularly drove miners to the mine, saw Coleman in work clothes at
Breeding's Store about 9:25 p.m. and told him Coleman had been "laid
off" his job which normally began at 9:30. Coleman followed Stiltner
to the mine, "got his stuff," and left between 9:30 and 9:45.
Ronald G. Perkins, second shift foreman at T J &
M Coal Company, saw Coleman about 10:00 p.m. when he came to the
mine for his boots and hat. Coleman was wearing blue jeans, which
the witness did not think were wet. Philip VanDyke, who worked at
another mine, met Coleman at the mouth of Looney's Creek about
10:10. They talked for 10 to 15 minutes and parted company about
10:25 to 10:30.
Other evidence established that from the mouth of
Looney's Creek it was approximately four miles to the McCoy's *41
neighborhood and eight miles to Boyd's Trailer Park, the McCoy
residence being approximately halfway between the two. VanDyke
clocked in at his mine across the creek at 10:41. Gary Owens saw
Coleman alone in his truck near the Gary Scott Stiltner trailer
between 10:00 and 11:00.
Coleman's wife, Patricia, 17, testified that
between 8:00 and 8:30 on March 10 her husband left for work from his
grandmother's house where they were living. She did not recall when
he came home but he explained that he had returned early because he
had been "laid off." The night before the murder, she and Coleman
drove to the McCoys' house. Patricia returned some recipes to her
sister while Coleman remained in the truck. The Colemans often
visited the McCoys and "a couple of times" stayed with Wanda when
her husband was at work.
Garnett M. Coleman testified that Coleman was her
grandson but she and her husband had adopted him when he was 14 and
he had lived with her nearly all his life. According to her, Coleman
left to go to work on March 10 about 8:30 and returned about 11:05.
She said that she "got mixed up" when she first told one of the
investigating officers Coleman came home at 11:30. Coleman, 23,
testified in his own defense. He described the events at Boyd's
Trailer Park on March 6.
That day, he said, he and David Keller got off
work about 6:30 or 7:00 a.m., went to the trailer of Keller's
brother, Tom, and spent the day drinking. Several of them went to
the Stiltner trailer and in the company of Sandra Stiltner listened
to tapes, including one Coleman brought from his truck. After 30 to
45 minutes, Coleman departed, forgetting to take his tape.
Coleman's testimony about his activities on March
10 closely followed the statement he gave to Special Agent Davidson
on March 11. Coleman said he left home at 8:30, drove to the Speedy
Market, got a box there, talked to Crabtree and Kermit Stiltner, and
left about 9:05. He drove to the mouth of Looney's Creek, arriving
at 9:10, but his transportation to the mines had already left. He
drove on to Breeding's Store, where he found the "man trip" (vehicle
used to transport workers to the mines) stopped.
Johnny Stiltner and David Keller were there;
Stiltner told Coleman his shift had been laid off. After five or ten
minutes Coleman drove back to Grundy but remembering that he had
left his mining equipment at the mine, he turned around about 9:25
or 9:30, and drove to the mine site, arriving about 9:45 or 9:50. He
*42 talked to Perkins, the second-shift foreman, Johnny Stiltner,
and David Keller. Leaving the mine site about 10:00 he met VanDyke
on the road. At the mouth of Looney's Creek they talked for 15 or 20
minutes. Coleman said he looked at his watch for the exact time only
at 8:30 when he left home and about 9:05 when he left the Speedy
Market. All other times to which he testified were estimated.
Coleman said he drove to Boyd's Trailer Park to
see Tom Keller but when he discovered the lights were out at
Keller's trailer he went to the Stiltner trailer and retrieved **870
the tape he had left there. It was then about 10:40 to 10:45.
Coleman drove to the bathhouse in Grundy, arrived about 10:50,
showered, left about 11:00, and was at home about 11:05. His pants
probably got wet when he threw his work clothes on the floor of the
He said the blue jeans he had been wearing that
evening were the pants he had worked in the two previous evenings.
He acknowledged that on March 11 he told Davidson that he probably
got his pants wet at the mines. He conceded that in going from the
mouth of Looney's Creek to Boyd's Trailer Park and then to
thebathhouse he passed the McCoys' residence, but he denied having
stopped there or having murdered or raped Wanda McCoy. He found out
about the crimes when Peggy Stiltner, his wife's sister, came to his
grandmother's house after midnight.
Coleman denied having made any admission to
Matney or any other inmate of the jail. He said he had heard some
details of the crime from his wife's family. He related to inmates
what he had learned, that the victim's throat had been cut, she had
been stabbed twice, she only had her socks on, and a paper towel had
been found. According to Coleman, his uncle, who apparently got the
information from Randall Jackson, told him about the towel. On
cross-examination Coleman acknowledged that he knew Bradley McCoy
worked the second shift.
Later in his testimony, when he was asked how
Type O blood got on his blue jeans, he replied that the cat at his
house might have scratched someone there, or that someone at the
mine the night before might have been cut. Coleman was then shown a
picture of the victim depicting blood on her right leg and was asked
whether the blood on the left leg of his pants had not actually come
from the right leg of the victim. An objection to this question was
overruled; Coleman answered in the negative.
Coleman said the blood found on one of *43 his
knives was from squirrels he had killed in September or October.
Coleman said "[i]t seemed like ... [the officers] came just about
every other day, sometimes every day, for three or four days in a
row," he was willing to talk with them, and he cooperated because he
was "trying to clear" himself "so the police would gon on and find
who did this."
The Commonwealth called two rebuttal witnesses.
Patricia Coleman said she was not aware the cat had scratched anyone
in such a fashion as to cause blood to get on her husband's blue
jeans; Randall Jackson denied having told Coleman's uncle about a
paper towel found at the scene of the crimes.
Shortly before 11:00 p.m. on March 18, 1982, the
jury found Coleman guilty of capital murder. On the next morning,
Coleman's motion to set aside the verdict on the ground the evidence
was insufficient was denied. The sentencing phase of the trial
Brenda F. Rife, 36, testified as a witness for
the Commonwealth. She described an attempted rape committed by
Coleman on April 7, 1977. On that date, the witness stated, because
of flooding several days earlier, electric and telephone services
were cut off and all the schools were closed. As she was a school
teacher, she remained at home with her six-year-old daughter after
her husband left for work that morning. Coleman, whom she had never
seen before, was admitted to the house when he asked for a drink of
After some conversation, Coleman pulled a gun and
forced her to tape her daughter's hands and feet and place her in a
child's rocking chair. Coleman then walked Mrs. Rife at gunpoint
upstairs to the bedroom where he ordered her to undress. When she
refused, he ripped open the bathrobe she wore, threw her on the bed,
and got on top of her. She struggled, scratched the intruder on the
neck, and attempted to dissuade him from his purpose. Seizing an
opportunity to escape when Coleman went for his gun, which he had
laid down, Mrs. Rife ran downstairs, picked up her daughter, and
fled from the house. Coleman ran after them and attempted to pull
them back inside but in the ensuing struggle Mrs. Rife seized his
weapon, threw it under the porch, and screamed for help. As
neighbors came to the rescue, Coleman ran away.
The entire episode lasted approximately ten
minutes, according to Mrs. Rife, and throughout this time Coleman "
never really raised his voice," which she described as "[v]ery
cold." She recalled, "It was just like, do it or die." The
Commonwealth introduced a certified copy of Coleman's conviction for
the attempted rape of Brenda Rife. He was sentenced to serve three
years in the State penitentiary by order entered July 29, 1977, by
the Circuit Court of Buchanan County.
The defense called two ministers as witnesses.
Thomas F. Bradley, a jail chaplain, visited Coleman six days a week
during the period of three months prior to trial when Coleman had
been incarcerated in jail in Bristol. Bradley stated that his
communications with Coleman were privileged. Contrary to the
recommendation of his attorneys, Coleman declined to waive the
privilege and asserted that he did not want to appear to be "using
the Lord" in any way. The minister testified that he believed
Coleman was sincere in his religious convictions.
Michael Trent, minister of Little Prater Church
of Christ, had known Coleman since he was about nine years old but
had not had "a good connection with him" during the past ten years.
He had come to know him personally after Coleman was incarcerated.
Coleman decided to be baptized about a month after he was first
confined and, at his request, Trent baptized him in jail. Coleman
pursued Bible study in jail; Trent believed he was sincere. Coleman
testified again in his own behalf. He said that after the jury found
him guilty it made no difference whether the penalty was death or
life imprisonment, that "[i]t's up to the Lord now, anyway."
895 F.2d 139
Roger K. COLEMAN, Petitioner-Appellant,
Charles THOMPSON, Warden, Respondent-Appellee.
United States Court of Appeals,
Argued Oct. 2, 1989.
Decided Jan. 31, 1990.
Rehearing and Rehearing In Banc Denied Feb. 27, 1990.
Before CHAPMAN, Circuit Judge,
BUTZNER, Senior Circuit Judge, and MERHIGE, Senior United States
District Judge for the Eastern District of Virginia, sitting by
BUTZNER, Senior Circuit Judge:
Roger Keith Coleman, a Virginia
prisoner sentenced to death, appeals the district court's denial of
his petition for a writ of habeas corpus. The district court
concluded that Coleman's claims were procedurally defaulted. We
Coleman was convicted on March 18,
1982, in the Circuit Court of Buchanan County, Virginia, of rape and
capital murder. The opinion affirming his conviction recounts the
facts about the crime and the evidence introduced for the imposition
of a death sentence. See Coleman v. Commonwealth, 226 Va. 31, 307
S.E.2d 864 (1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80
L.Ed.2d 145 (1984). Coleman then applied for a writ of habeas corpus
in the Circuit Court of Buchanan County. After an evidentiary
hearing, the court denied the writ. The Supreme Court granted the
state's motion to dismiss Coleman's appeal. Again, the Supreme Court
denied certiorari. Coleman v. Bass, 484 U.S. 918, 108 S.Ct. 269, 98
L.Ed.2d 227 (1987). Coleman next petitioned for a writ of habeas
corpus in the federal district court, setting forth 11 claims
asserting the invalidity of his conviction and sentence. The
district court denied relief without an evidentiary hearing, and
this appeal followed.
* In his brief, Coleman states the
first issue on appeal as follows:
Did the District Court err in
finding that federal review of Coleman's claims is barred: (a) when
dismissal by the Virginia Supreme Court was based on the novel
reading of an ambiguous procedural rule, (b) when Coleman's late
filing of his notice of appeal did not represent a deliberate bypass
of the courts, and (c) when application of procedural default rules
to counsel's error in filing the appeal one day late would deny
Coleman meaningful access to the courts?
The district court found that the
Virginia Supreme Court had dismissed as untimely Coleman's notice of
appeal from the adverse ruling of the state habeas court.
Consequently, the district court dismissed as procedurally defaulted
the following seven claims, which were raised only in the state
habeas proceeding and not on direct appeal:
At least one member of the jury,
George Marrs, failed to disclose his preconceived opinion of
Coleman was not afforded
reasonably effective assistance of counsel.
Jurors were improperly excluded
because of their opposition to imposition of the death penalty.
The prosecution failed to disclose
The prosecution's closing argument
denied Coleman a fair trial.
The jury instructions at the
penalty stage were constitutionally inadequate.
Virginia's capital murder statute
and sentencing procedures are unconstitutional facially and as
applied, under the Eighth and Fourteenth Amendments to the
Constitution of the United States.
* The district court premised its
finding of procedural default on the Virginia Supreme Court order
which dismissed as untimely Coleman's notice of appeal from the
adverse ruling of the state habeas court. Rule 5:9(a) of the
Virginia Supreme Court provides:
No appeal shall be allowed unless,
within 30 days after entry of final judgment or other appealable
order or decree, counsel for the appellant files with the clerk of
the trial court a notice of appeal and at the same time mails or
delivers a copy of such notice to all opposing counsel.
The state habeas court entered its
order denying a writ of habeas corpus on September 4, 1986. Coleman
filed his notice of appeal on October 7, 1986, one day late,
counting from September 5 and omitting Saturday and Sunday, October
4 and 5. Va.Code Ann. Secs. 1-13.3 and 1-13.3:1 (1987). Two weeks
later Coleman moved the state habeas court to correct the date of
final judgment from September 4 to the date the clerk recorded the
order in the common law order book, September 9. The court denied
the motion, stating in its order "final judgment was entered on
September 4, 1986."
On December 4, 1986, Coleman filed
a petition for appeal in the Virginia Supreme Court. The state
responded by moving to dismiss the petition on the sole ground that
Coleman had filed his notice of appeal more than 30 days after the
entry of final judgment. Both sides then briefed the motion and the
merits of the petition. The Supreme Court ruled: "[T]he motion to
dismiss is granted and the petition for appeal is dismissed."
A state habeas petitioner who
fails to meet the requirements of state procedural law, and who has
his petition dismissed on that basis by the last state court to
review it, loses federal review of the federal claims raised in the
state petition in the absence of cause and prejudice or a
fundamental miscarriage of justice. Wainwright v. Sykes, 433 U.S.
72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477
U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Procedural default
can be invoked by the state only when "the state court's opinion
contains a 'plain statement that [its] decision rests upon adequate
and independent state grounds.' " Harris v. Reed, --- U.S. ----, 109
S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989) (quoting Michigan v. Long,
463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983)).
Coleman argues that the Virginia
Supreme Court did not clearly and expressly rely on a state
procedural rule in dismissing his petition for appeal. He points to
the Court's recital that among other papers it considered the briefs
that had been filed in opposition to the petition.
Coleman's argument lacks a factual
basis. The Supreme Court complied with the "plain statement" rule
that Harris made applicable to habeas corpus proceedings. The
Virginia Supreme Court's brief order shows precisely how the Court
dealt with the petition for appeal. The Court recites that it
considered all of the papers filed by the parties. The Court then
granted the motion to dismiss, which was based on Coleman's failure
to comply with Virginia Supreme Court Rule 5:9(a), and dismissed the
The district court properly
concluded that the failure to comply with Rule 5:9(a) was an
adequate ground to apply the bar of procedural default. The rule is
mandatory. Vaughn v. Vaughn, 215 Va. 328, 210 S.E.2d 140 (1974). The
mandatory nature of the rule does not make it unconstitutional.
Dismissal of an application for discretionary review because it is
untimely does not deprive the applicant of due process of law.
Wainwright v. Torna, 455 U.S. 586, 588 n. 4, 102 S.Ct. 1300, 1301 n.
4, 71 L.Ed.2d 475 (1982). Even in a capital case, procedural default
justifies a federal habeas court's refusal to address the merits of
the defaulted claims. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661,
91 L.Ed.2d 434 (1986).
Coleman asserts that the district
court erred because the dismissal by the Virginia Supreme Court was
based on a novel reading of an ambiguous procedural rule, namely
whether an order is "entered" on the date the judge issues it or the
date the clerk records it. He relies on the proposition that a
procedural ground is inadequate if it fails to provide fair notice
to the litigant. See, e.g., James v. Kentucky, 466 U.S. 341, 104
S.Ct. 1830, 80 L.Ed.2d 346 (1984).
The major premise of Coleman's
argument is flawed. The rule is not ambiguous. Its application by
the Supreme Court was not novel. Notice to Coleman was adequate. The
final order of the state habeas court contains the following
notation immediately above the judge's signature: "Entered this 4th
day of September 1986." Virginia case law giving effect to the
judge's notation of entry is clear. In Peyton v. Ellyson, 207 Va.
423, 430-31, 150 S.E.2d 104, 110 (1966), the Court held that the
final order denying a petition for writ of habeas corpus was entered
on the date the judge signed the order and that the time for appeal
started running from that date.
Coleman next argues that the rule
of procedural default is inapplicable because his late filing did
not represent a deliberate bypass of the courts. He relies on Fay v.
Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and its
progeny, Ferguson v. Boyd, 566 F.2d 873 (4th Cir.1977).
Murray v. Carrier forecloses
Coleman's reliance on Fay and Ferguson by holding that whether
procedural default in appellate proceedings bars federal
consideration of the defaulted claims should be determined by the
cause and prejudice standards of Wainwright v. Sykes, and not by the
deliberate bypass standard of Fay. 477 U.S. at 485-92, 106 S.Ct. at
2643-47. See also Smith v. Murray, 477 U.S. at 533, 106 S.Ct. at
2665. In Murray v. Carrier, the Court noted that it expressed no
opinion concerning application of the deliberate bypass standard to
decision of counsel "not to take an appeal at all." 477 U.S. at 492,
106 S.Ct. at 2647. But this reservation need not detain us, because
Coleman's counsel decided to take an appeal.
A prisoner can avoid the bar of
procedural default if he can show "cause for the noncompliance" with
state law and "actual prejudice resulting from the alleged
constitutional violation." Wainwright v. Sykes, 433 U.S. at 84, 97
S.Ct. at 2505. Coleman assigns as cause his counsel's error in
failing to file a timely notice of appeal from the final order of
the state habeas court. The error, he asserts, is of sufficient
magnitude to constitute ineffective assistance of counsel that
denied him access to the courts. He relies on Murray v. Carrier, 477
U.S. at 489, 106 S.Ct. at 2646, where the Court discussed the
circumstances which would justify treating error of counsel as
Coleman's reliance on Murray v.
Carrier is misplaced. There the Court was discussing error arising
out of a direct appeal in which a prisoner has a right to counsel
whose performance is not constitutionally ineffective. In contrast,
the error in Coleman's case occurred in state habeas corpus
proceedings. The difference in the proceedings is significant, for a
state prisoner seeking a writ of habeas corpus does not have a
constitutional right to counsel. Murray v. Giarratano, --- U.S.
----, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989).
Wainwright v. Torna rejects a
claim that is essentially similar to Coleman's. In Torna, a
prisoner's counsel filed an application for discretionary review in
the state Supreme Court one day late. The prisoner charged that this
error denied him effective assistance of counsel. The Supreme Court
held: "Since [the prisoner] had no constitutional right to counsel,
he could not be deprived of the effective assistance of counsel by
his retained counsel's failure to file the application timely." 455
U.S. at 587-88, 102 S.Ct. at 1301. Because Coleman, like Torna, had
no constitutional right to counsel, he could not be deprived of the
effective assistance of counsel. Thus, he cannot show "cause" by
showing ineffective assistance of counsel. But see Madyun v. Young,
852 F.2d 1029, 1033 n. 2 (7th Cir.1988) (dictum).
A prisoner may also avoid the bar
of procedural default by demonstrating that denial of federal review
will result in a fundamental miscarriage of justice. Harris v. Reed,
109 S.Ct. at 1043; Smith v. Murray, 477 U.S. at 537, 106 S.Ct. at
2667; Murray v. Carrier, 477 U.S. at 495, 106 S.Ct. at 2649. This
avenue of relief, however, is limited to "an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent." Murray v. Carrier, 477
U.S. at 496, 106 S.Ct. at 2649. This principle does not entitle
Coleman to avoid the bar of his procedural default.
The district court found that the
evidence was sufficient to show Coleman's guilt beyond a reasonable
doubt. The evidence included Coleman's admission that he
participated in the crimes. Hair, blood, and semen typing indicated
that Coleman raped the victim. See Coleman v. Commonwealth, 226 Va.
at 52-53, 307 S.E.2d at 876. Proof of Coleman's conviction for the
attempted rape of another person several years earlier and the
manner in which he killed his victim in this case were aggravating
factors that the jury could consider in imposing the death sentence.
See 226 Va. at 53-55, 307 S.E.2d at 876-77.
In sum, we conclude that the
district court did not err by ruling that the failure by Coleman's
counsel to file a timely notice of appeal from the final order of
the state habeas court constituted a procedural default barring
federal review of the claims asserted only in the state habeas
The second issue raised by Coleman
is as follows:
Did the District Court err in
dismissing Coleman's petition without first holding an evidentiary
hearing even though material factual disputes raised in collateral
review proceedings before the Commonwealth courts had not been
Coleman asserts that the state
court did not resolve factual disputes pertaining to his claim that
one of the jurors, George Marrs, was biased against him. He also
contends disputed issues of fact remain with respect to his claim of
ineffective assistance of counsel.
Neither the complaint about the
juror nor the claim of ineffective assistance of counsel was raised
on direct appeal. Therefore, Coleman's procedural default in failing
to file a timely notice of appeal of the state court's final
judgment denying his petition for a writ of habeas corpus bars his
review in federal court. Consequently, an evidentiary hearing was
The district court held that
Coleman's next three issues were also barred by procedural default.
Nevertheless, it alternatively considered Coleman's claims and found
them to be without merit. In addition to his general denial of
procedural default, Coleman assigns error to the district court's
alternative disposition of his claims for lack of merit. He raises
the following issues:
Did the District Court err in
finding that Coleman was not convicted by a biased jury even though
evidence presented in the collateral review proceedings in the
Commonwealth courts demonstrated that one of the jurors had, before
trial, expressed his desire to be on the jury so he could help "burn"
Did the District Court err in
finding that Coleman was effectively represented by counsel when the
evidence demonstrates that the representation Coleman received, from
the change of venue motion, through trial preparation and the
sentencing proceeding, was grossly deficient and prejudiced Coleman?
Did the District Court err in
finding that the Commonwealth satisfied due process discovery
requirements even though it failed to produce to Coleman evidence
which supported Coleman's alibi and undermined the prosecution's
theory of the case?
None of the claims mentioned in
these issues was raised on direct appeal. The state habeas court
found that they lacked merit, and the Virginia Supreme Court denied
discretionary review because Coleman's notice of appeal was untimely.
The district court properly
sustained the state's position that Coleman's procedural default
barred federal review of all of these claims.
Coleman asserts that the death
penalty was unconstitutionally imposed for reasons that he states in
the final issue that he raises on appeal:
Did the District Court err in
finding that the death penalty was constitutionally imposed on
Coleman in spite of the fact that (a) the record cannot support the
conclusion that the jury met the requirements of Virginia law by
unanimously finding the existence of an aggravating circumstance,
and (b) the jury was not provided with a constitutionally adequate
limiting construction for Virginia's "outrageously or wantonly vile"
Coleman made no objection in the
trial court or on direct appeal to the errors he now assigns. As we
have previously noted, Coleman did not perfect a timely appeal from
the denial of his state habeas corpus petition. The state asserts,
and the district court properly ruled, that federal review of
Coleman's complaints about the constitutionality of the death
sentence is barred by his procedural default at both the trial and
Quite apart from the propriety of
the instructions in the penalty phase of the trial, the decision of
the Virginia Supreme Court establishes that Coleman's sentence was
lawful. Neither the Sixth nor Eighth Amendment requires "a jury
trial on the sentencing issue of life or death." Hildwin v. Florida,
--- U.S. ----, 109 S.Ct. 2055, 2056, 104 L.Ed.2d 728 (1989) (Sixth
Amendment); Cabana v. Bullock, 474 U.S. 376, 384-88, 106 S.Ct. 689,
695-98, 88 L.Ed.2d 704 (1986) (Eighth Amendment). State law may
authorize a forum other than the jury to impose the death penalty.
An appellate court is a constitutionally permissible forum. Cabana,
474 U.S. at 392, 106 S.Ct. at 700.
Cabana dealt with an aggravating
factor necessary for the imposition of the death penalty on one who
aids and abets a felony in the course of which others commit a
murder. See Cabana, 474 U.S. at 378, 106 S.Ct. at 693. The Court
held that, if authorized by state law, an appellate court can
determine whether an aggravating factor has been proved and can
impose the death penalty. The appellate court can exercise such
power even when the jury may not have found an aggravating factor.
474 U.S. at 384-88, 106 S.Ct. at 695-98. Under these circumstances a
federal court should not confine its inquiry to the jury
instructions. "Rather, the court must examine the entire course of
the state-court proceedings against the defendant in order to
determine whether, at some point in the process, the requisite
factual finding as to the defendant's culpability has been made."
474 U.S. at 387, 106 S.Ct. at 697. A federal court errs by "focusing
exclusively on the jury and in ordering a new sentencing hearing
without inquiring whether the necessary finding of [the aggravating
factor] had been made by the trial court or by the state appellate
court." 474 U.S. at 389, 106 S.Ct. at 698. Although Cabana dealt
with a specific categorical aggravating factor, the principles the
Court explained are applicable to the determination of other
aggravating factors in crimes committed under circumstances quite
different from those examined in Cabana. See, e.g., Johnson v.
Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 1989, 100 L.Ed.2d 575
(1988) (White, J., concurring). The major premise of Cabana--the
Constitution does not require a jury for the imposition of the death
penalty--is applicable to Coleman's case.
To apply Cabana 's principles, a
federal court must determine what authority state law confers on its
appellate court with respect to the death penalty and then ascertain
whether this authority has been constitutionally exercised. Cf.
Spaziano v. Florida, 468 U.S. 447, 457-65, 104 S.Ct. 3154, 2160-64,
82 L.Ed.2d 340 (1984).
Virginia law confers broad powers
on the Supreme Court. Va.Code Ann. Sec. 17-110.1 (1988). Every
sentence of death must be reviewed by the Court. This review may be
consolidated with an appeal, if one is taken. In addition to errors
"enumerated by appeal," the Court must consider other specific
issues that address the fundamental fairness of the trial and
statute vests in the Supreme Court extraordinary authority to
commute the sentence of death to imprisonment for life. It may
affirm the sentence of death or remand for new sentencing
proceedings. In short, the only limitation on the Court's power is
the authority to impose a death sentence when the trial court, with
or without a jury, has imposed a lesser penalty.
In Coleman's case, the Virginia
Supreme Court exercised the power conferred on it by Sec. 17-110.1.
It compared Coleman's case to others "where the death sentence was
based upon the dangerousness of the defendant and the vileness of
Coleman v. Commonwealth, 226 Va. at 54, 307 S.E.2d at 877.
Justifying the application of these statutory aggravating factors,
it recounted that "Coleman, who had previously been convicted of
attempted rape, raped his victim, cut her throat, dragged her
through her house, and stabbed her twice at or after her death." 226
Va. at 55, 307 S.E.2d at 877. The Court cited as a somewhat
analogous case Smith v. Commonwealth, in which it constitutionally
limited the statutory vileness factor by defining " 'aggravated
battery' to mean a battery which, qualitatively and quantitatively,
is more culpable than the minimum necessary to accomplish an act of
murder." 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978). The Court
stated that it had "independently determined that the sentence of
death was properly imposed," and it "decline[d] to commute the
sentence." 226 Va. at 55, 307 S.E.2d at 877.
In Maynard v. Cartwright, 486 U.S.
356, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988), the Court
Since Furman [v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972) ], our cases have insisted that the
channeling and limiting of the sentencer's discretion in imposing
the death penalty is a fundamental constitutional requirement for
sufficiently minimizing the risk of wholly arbitrary and capricious
The Virginia Supreme Court's
review of the sentence satisfies this constitutional requirement.
Finding no constitutional
infirmity that is cognizable on federal review, we affirm the
judgment of the district court denying a writ of habeas corpus.
NEWSPAPER COMPANY,d/b/a THE BOSTON GLOBE
COMMONWEALTH OF VIRGINIA
Record No. 012682
THE WASHINGTON POST, ET AL.
COMMONWEALTH OF VIRGINIA
Record No. 012683
November 1, 2002
JUSTICE DONALD W. LEMONS
PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and Lemons, JJ.,
and Compton, S.J.
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
I. Facts and Procedural History
In 1982, Roger Keith Coleman (“Coleman”) was tried
by a jury in the Circuit Court of Buchanan County and was convicted of
the rape and capital murder of Wanda McCoy. For the rape, he was
sentenced to confinement in the penitentiary for life, and for the
capital murder, he was sentenced to death. We affirmed the
convictions and the sentences. See Coleman v. Commonwealth,
226 Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109
(1984). Coleman sought review of his convictions by various petitions
for writs of habeas corpus
and a final application for a stay of execution to the Supreme Court
of the United States, which was denied. See Coleman v.
Thompson, 504 U.S. 188 (1992). In accordance with the order of
the Circuit Court of Buchanan County, he was executed in 1992.
pretrial investigation of the rape and murder of Wanda McCoy resulted
in collection of biological material including spermatozoa collected
from the vagina of the victim. In 1982, DNA testing of this material
was not available. Elmer Gist, Jr., a forensic serologist employed by
the Commonwealth, testified at trial concerning comparison of hair
samples and blood typing tests. Summarizing Gist’s testimony, we
stated in our opinion upon direct appeal of Coleman’s conviction that
foreign hairs found in Wanda’s pubic area were, in fact, not those
of the victim but were consistent with pubic hair samples taken from
Coleman. . . .
Gist testified that Coleman was a secretor, one whose “blood type
factor” is present “in semen, saliva or other body fluids,” and that
80% to 85% of the population are secretors. Gist determined that
Coleman had Type B blood, a rare type possessed by only 10% of the
population. Wanda’s blood was type O, a type which 40% to 45% of
the population have; her husband’s was Type A. From Gist’s
examination of the vaginal specimen taken from the victim’s body he
found that spermatozoa had been deposited in her vagina by a
secretor with Type B blood. He also determined that a bloodstain on
Coleman’s blue jeans was made by Type O human blood.
Commonwealth, 226 Va. at 38-39, 307
S.E.2d at 867-68. Additional evidence against Coleman is summarized in
our opinion affirming his convictions and includes testimony from a
fellow inmate that Coleman had “described for him the killing and rape
of the victim.” Id. at 39, 307 S.E.2d at 868.
Eight years after his conviction, Coleman
petitioned the trial court to permit DNA testing of the biological
material. The trial court, over the objection of the Commonwealth,
granted Coleman’s petition, but required that a portion of the
material be preserved for testing by the Commonwealth. The tests (“PCR-DNA”
testing) were conducted by Dr. Edward T. Blake (“Dr. Blake”), of
Forensic Science Associates in Richmond, California. The test results
did not exclude Coleman and 2% of the Caucasian population as the
source of the biological material. The trial court ordered that
physical custody of the remaining biological material remain with Dr.
Blake until further order of the court. Later, evidence offered at a
hearing on a second petition for habeas corpus in the federal courts
utilized the results of the “PCR-DNA” testing and the ABO blood type
testing. The court stated that the “evidence showed that Coleman and
the primary donor had ABO blood type B, which occurs in 10% of the
population. When combined with the “PCR-DNA” testing, the ABO narrows
the percentage of the population with these characteristics to .2%.”
Coleman v. Thompson, 798 F. Supp. 1209, 1213-14 (W.D. Va.
1992). The United States District Court for the Western District of
Virginia concluded that the additional testing “significantly
bolster[s] the jury’s finding of guilt.” Id. at 1217.
On July 26, 2000, eight years after Coleman’s
execution, Dr. Blake informed the trial court by letter that a more
sophisticated testing procedure was available that had been
unavailable at the time of the tests conducted in 1990. According to
Dr. Blake, an analysis “on the remaining half of the DNA preparation
from the Wanda McCoy vaginal slides could resolve any lingering
factual issues concerning the source or sources of the spermatozoa in
Subsequently, The Globe Newspaper Company, d/b/a The Boston Globe, The
Washington Post, The Virginian-Pilot, and Media General Operations,
Inc., d/b/a The Richmond Times-Dispatch (collectively, “the
newspapers”) filed petitions in the Circuit Court of Buchanan County,
requesting the trial court “to permit testing of certain evidence
involved in the case of Commonwealth v. Coleman and for access
to the test results.” The newspapers based their request upon the
Virginia Freedom of Information Act (“VFOIA”), recodified in 2001 as
Code §§ 2.2-3700 through -3714,
the “public’s right to know and the media’s right of access” pursuant
to the First Amendment to the United States Constitution (“First
Amendment”), Article I, Section 12 of the Constitution of Virginia,
and Code § 19.2-270.4.
court, by order entered September 4, 2001, incorporating its letter
opinion of May 31, 2001, denied the petitions holding that the
newspapers did not have “standing on the grounds asserted under the
First Amendment and Virginia Constitution on which to pursue a cause
of action requesting public access to the DNA evidence at issue for
the purpose of scientific re-testing.” Additionally, the trial court
held that Code § 2.2-3706(F)(1) provided it with discretion to
disclose certain information, but concluded that “it would not be in
its sound discretion to order re-testing of the Coleman DNA on
the basis of the VFOIA.” The newspapers appeal the judgment of the
upon the First Amendment and Article I, Section 12 of the Constitution
of Virginia, the newspapers maintain that the trial court erred in
holding that they had no standing to petition for access to and
re-testing of the DNA evidence in question, and in denying their
petitions. Additionally, the newspapers maintain that the trial court
erred in failing to exercise its discretion under VFOIA, Code
§ 2.2-3706(F)(1), because the compelling public interest to know the
results of the DNA testing “greatly outweighs” any state interest in
preventing the testing.
Commonwealth argues that the newspapers are not seeking access to
judicial proceedings or documents, but are seeking the ability to
conduct scientific testing on evidence from a criminal trial.
Accordingly, the Commonwealth maintains that neither the First
Amendment nor Article I, Section 12 of the Constitution of Virginia,
is applicable to this case. Among other arguments, the Commonwealth
asserts that the biological material at issue in this case does not
constitute “public records” under VFOIA. We agree with the
A. First Amendment and Virginia Constitutional
of access to judicial proceedings and records is well-established. In
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580
(1980), the Supreme Court of the United States held that the public’s
right to attend criminal trials was “implicit in the guarantees of the
First Amendment.” Similarly, in Richmond Newspapers, Inc. v.
Commonwealth, 222 Va. 574, 585, 281 S.E.2d 915, 921 (1981)
(quoting Richmond Newspapers, Inc., 448 U.S. at 581), relying
upon Article I, Section 12 of the Constitution of Virginia, we held
that “[a]bsent an overriding interest . . . [pretrial hearings] must
be open to the public.” The press does not have a right of access
greater than the public at large under the First Amendment, Nixon
v. Warner Communications, Inc., 435 U.S. 589, 609 (1978), or under
Article I, Section 12 of the Constitution of Virginia. The right of
access is not limited to attendance at criminal proceedings. Under
certain circumstances and with qualifications, it extends to
inspection of documents filed in connection with such proceedings.
In re Washington Post Co. v. Soussoudis, 807 F.2d 383, 390 (4th
the proceedings in the criminal case against Roger Keith Coleman was
closed to the public or the press. No one has suggested that access
to evidence presented at trial or post-trial proceedings has been
denied. As the term has been used in every case cited to us by the
newspapers, “access” has not been denied. What the newspapers seek to
do in this case is expand the definition of “access” to include the
right to conduct independent testing of evidence in criminal
The newspapers have been given access to the DNA test results from the
post-trial proceedings. What the newspapers want is the ability to
cause the biological material to be re-tested and generate a new
scientific report, thereby altering, manipulating, and/or destroying
existing evidence in order to create new evidence. Historically, the
constitutional right of the public and the press to have access to
criminal proceedings has applied to hearings and trials and inspection
of documents and records that have been introduced at such
proceedings. Here, the newspapers seek “access” to something that
does not exist, namely, new evidence in the form of new test results.
No appellate decision of any court, state or federal, is cited by the
newspapers in support of such a novel extension of the concept of
newspapers urge this Court to employ the test articulated in
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). In
Press-Enterprise Co., the Supreme Court considered the exclusion
of the public and press from a preliminary hearing in a criminal case
and the denial of requests for transcripts of the proceedings. Id.
The Court stated the following:
In cases dealing with the claim of a First
Amendment right of access to criminal proceedings, our decisions have
emphasized two complementary considerations. First, because a
“tradition of accessibility implies the favorable judgment of
experience,” we have considered whether the place and process have
historically been open to the press and general public.
Second, in this setting the Court has traditionally considered
whether public access plays a significant positive role in the
functioning of the particular process in question. . . .
. . . If the particular proceeding in question
passes these tests of experience and logic, a qualified First
Amendment right of public access attaches. . . . “[T]he presumption
may be overcome only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly
tailored to serve that interest.”
at 8-9 (internal citations omitted).
Additionally, expanding the reach of the right of “access” to include
the right of the public and press to test evidence in a criminal trial
could not be restricted in any principled way to only cases in which a
death sentence has already been imposed. The practice, if permitted,
would logically apply to all criminal proceedings. It does not take
much imagination to envision requests for “access” to test substances
alleged to be illegal or weapons alleged to have been used in
assaults. When the items to be tested are limited in quantity or
subject to destruction when tested, how would a court supervise such
testing? How would competing claims of rights to “access” be handled
when quantity or integrity of the items are an issue? We have no
difficulty concluding that permitting testing of this type would not
play “a significant positive role in the functioning” of the judicial
conclude that the newspapers have no right under the First Amendment
or Article I, Section 12 of the Constitution of Virginia to obtain the
biological material in question and subject it to re-testing.
B. Virginia Freedom of Information Act
court discussed the specific provisions of VFOIA concerning criminal
investigations or prosecutions in Code § 2.2-3706(F)(1) in its opinion
letter, and stated, “the Court finds that it would not be in its sound
discretion to order re-testing of the Coleman DNA on the basis
of the VFOIA.” The trial court also held that the newspapers had no
standing to make such a request under the VFOIA. The Commonwealth
argues that the request for testing of the biological material does
not involve a “public record.” We agree with the Commonwealth.
VFOIA, persons have a right to inspect and copy certain “public
records.” Code § 2.2-3704. “Public records” are defined in Code
§ 2.2-3701 as
writings and recordings that consist of letters, words or numbers,
or their equivalent, set down by handwriting, typewriting, printing,
photostatting, photography, magnetic impulse, optical or
magneto-optical form, mechanical or electronic recording or other
form of data compilation . . . prepared or owned by, or in the
possession of a public body or its officers, employees or agents in
the transaction of public business.
Clearly, the biological material recovered on swabs
from the vagina of the victim does not meet the test of a “public
record.” Even if it did, the VFOIA allows for inspection and copying,
For the reasons stated we will affirm the
judgment of the trial court.
Coleman v. Bass, 484 U.S. 918 (1987) (denying a petition for a
writ of certiorari to the Supreme Court of Virginia’s Order
denying a petition for a writ of habeas corpus); Coleman v.
Thompson, 895 F.2d 139 (4th Cir. 1990) (affirming the judgment
of the district court denying a writ of habeas corpus), aff’d,
501 U.S. 722 (1991); Coleman v. Thompson, 798 F. Supp. 1209
(W.D. Va. 1992) (denying Coleman’s second appeal for a federal
writ of habeas corpus), aff’d, No. 92-4005, 1992 U.S. App.
LEXIS 11440 (4th Cir. May 18, 1992) (per curiam).