The Virginia Supreme Court is to be asked today to stay what is scheduled to be the state's first execution in 16 years.
Attorneys for Michael M. Smith, 31, of Williamsburg, scheduled to die Dec. 4 in the electric chair at the state penitentiary in Richmond, are seeking the stay pending a ruling in his appeal before the U.S. Supreme Court Smith was sentenced to die for the May 23, 1977, rape-slaying of Audrey J. Weiler, 35, on the bank of the James River in James City County.
Smith's appeal to the State Supreme Court, the first test of the state's capital punishment law amended by the legislature last year to correspond with 1976 U.S. Supreme Court guidelines, was rejected unaminously last month.
A routine stay of the execution, which would be the first since the 1962 electrocution of convicted killer Carroll L. Garland, is expected.
On Monday, in a related case, the Virginia court heard arguments from lawyers for Alton Waye, 23, of Victoria Va., whose execution is automatically stayed pending the outcome of his appeal. Waye was sentenced to die for the October 1977 rape and murder of LaVergne B. Marshall, 61, at her Lunenberg County home.
Under Virginia's modified death panelty law, which took effect July 1, 1977, all death sentences are automatically granted appeal to the state Supreme Court.
Under the new law, a suspect's guilt or innocence is considered at one proceeding. If found guilty, the penalty is considered at a second.
Waye's lawyers, William L. Wellons of Victoria and Richard J. Bonnie of the University of Virginia Law School, argued Monday that trial Judge Meredith C. Dortch committed several errors, including the limiting of the testimony by a defense psychiatrist.
They also charged that the jury's deliberation in imposing the death sentence, which lasted 25 minutes, "suggests that it was done in the passion of prejudice."
A ruling in Waye's case is expected Jan. 12, the first decision day of the court's next term.
Smith and Waye are among five men currently on death row in the Richmond penitentiary. Several others, including James T. Clark Jr., 21, sentenced to death by a Fairfax County jury in the murder-for-hire slaying last january of George Harold Scarborough, are being held in local jails throughout the state pending formal sentencing by trial judges. About 400 persons currently face the death penalty across the nation.