Va. Executes Man Who Killed Pizza Delivery Woman in '94

March 19, 2004

Convicted killer Brian Lee Cherrix was executed by injection last night in Virginia's death chamber, a decade after he raped and killed a young mother on Chincoteague Island. Cherrix, 30, of Accomack County, Va., was pronounced dead at 9:10 p.m. in Virginia's death chamber at the Greensville Correctional Center in Jarratt, Department of Corrections spokesman Larry Traylor said. The execution was the first in Virginia this year. Cherrix declined to make a final statement, Traylor said.

Cherrix was sentenced to death for the Jan. 27, 1994, slaying of Tessa Van Hart, 23, a mother of two who worked as a pizza delivery woman on Chincoteague Island. Van Hart was lured to a remote, unoccupied summer home by a man who ordered a pizza, according to court records. She was sodomized and shot twice in the head.

Grace Hitchens, Van Hart's sister, said yesterday that her mother, Van Hart's widower and other relatives traveled to Jarratt to attend the execution. Hitchens said that she would not attend and that she instead planned to take flowers and candles to her younger sister's grave and set off some small fireworks there. "I saw enough of [Cherrix] at the trial," said Hitchens, 41. "I think getting a lethal injection is too simple compared to what he did to her." Hitchens said her sister, one of five children, was a sweet young woman who loved horses and unicorns. "She was beautiful," Hitchens said.

Cherrix, who has claimed innocence, decided not to seek clemency and instructed his defense attorneys that he did not want them to file any final appeals, said Michele Brace, one of his attorneys. Brace said Cherrix told her he did not want to spend his life in prison. Cherrix's case gained attention in 2001 when a federal judge ordered DNA tests after Cherrix claimed he was wrongly convicted.

Brace said that there was not enough genetic material to conduct the tests and that the results were inconclusive. Authorities have said they are confident Cherrix killed Van Hart. His conviction has been upheld by the Virginia Supreme Court and the federal court.

Van Hart's slaying went unsolved for more than two years until Cherrix, who was facing a sentencing hearing on an unrelated charge, offered to provide details about the Van Hart case in exchange for leniency, according to court records.

Cherrix initially said his cousin, who died in a 1995 car crash, killed Van Hart, the records state. But Cherrix later said that he sexually assaulted Van Hart and then shot her as she begged for her life, according to the records.

Traylor said Cherrix spent yesterday afternoon meeting with relatives and a spiritual counselor. He requested a final meal, Traylor said, but asked that it not be revealed.

Two people were executed last year in Virginia, corrections officials said. The execution of death row inmate Dennis M. Orbe, 39, is scheduled for March 31. Orbe was convicted of killing a York County store clerk in 1998.

ProDeathPenalty.Com

Exactly 10 years after the murder of island resident Tessa Van Hart, the state has set an execution date for her killer.

Brian Lee Cherrix, 30, is scheduled to die March 18 at 9 p.m. for the Jan. 27, 1994 slaying of Van Hart, said Katherine Baldwin, senior assistant state attorney general. Van Hart's widower, who received news of the execution date on Tuesday -- 10 years to the day after the murder -- expressed his relief. "Good, it will be done and over with," said Walter "Bink" Van Hart. "It will put some closure on everything."

Tessa Van Hart, a 23-year-old mother of two, worked at an island pizza and sandwich shop. When she failed to return from a pizza delivery on the night of her slaying, her husband, police and others searched for her. She was found dead on Small Piney Island just hours after she disappeared. She had been sodomized and shot twice in the head, her body left in the back seat of her car.

The execution will be held in the death chamber at the Greensville Correctional Center in Jarratt. Cherrix is now at Sussex I State Prison in nearby Waverly. The attorney general's office is uncertain of the method of execution because Cherrix will be given a choice of death by lethal injection or by electrocution. If he does not choose, he will be executed by lethal injection. Walter Van Hart will attend the Thursday night execution, along with several members of his family. Tessa Van Hart's mother, Ida Bell Ward of near Pocomoke City, Md., also plans to attend with Van Hart's brothers and sisters, Walter Van Hart said.

The Van Hart murder went unsolved for three years until Cherrix, who was in jail for the attempted murder of his half-brother, offered police information about the Van Hart crime in exchange for leniency. He told them he knew details of Van Hart's murder because his deceased cousin had told him. Cherrix eventually admitted twice to luring Van Hart to a deserted house and killing her after she rejected his romantic advances.

He was convicted and sentenced to death based on his account of the crime and physical evidence, though he later recanted his confession, saying police harassed him into giving false statements. More recently, because of advances in forensic science, Cherrix was granted new DNA testing, which he said would show he didn't commit the crime. However, last year's testing of seminal fluid found in the victim's body proved inconclusive, and the tests consumed the remaining DNA evidence, leaving none for future testing.

UPDATE: With no appeals or request for gubernatorial clemency pending, it appears Brian Lee Cherrix will be executed by injection tomorrow night. Cherrix, 30, was sentenced to die for the Jan. 27, 1994, capital murder of Tessa Van Hart on Chincoteague Island.

Robert L. Jenkins Jr., one of Cherrix's lawyers, said Cherrix has decided not to seek clemency from Gov. Mark R. Warner and has instructed his lawyers not to file an appeal with the U.S. Supreme Court. Cherrix has asked state officials not to autopsy his body after his execution, as is the standard practice. He cited his religious beliefs in making the request. Jenkins said yesterday that "we are in the process of trying to negotiate a resolution. Nothing has been finalized, but we intend to reach a mutually agreeable solution in the next 24 hours."

In 2001, Cherrix won a court order for more DNA testing in the case, but it turned out that there was not enough suitable genetic material to "amplify" for testing, said Michele J. Brace, another of Cherrix's lawyers.

Van Hart, 23, was the mother of two young children. She was delivering pizzas for the Famous Pizza and Sub Shop where her husband, Walter "Binky" Van Hart, was a cook. A man called and ordered a pizza to be delivered to an address in the Small Piney Island area. Van Hart did not know the address was for an unoccupied summer residence. She left the restaurant with the pizza about 7:45 p.m.

Police were called when she did not return. They found her in the back seat of her car parked behind a vacant house on McGee Lane, a mile or so from where she was to deliver the pizza. She had been shot twice in the head and sodomized. The undelivered pizza was in the front of the car.

The murder went unsolved for more than 2 years. Then, in June 1996, Cherrix was being held in jail on unrelated charges when authorities said he offered to trade information about the Van Hart murder for leniency. He told authorities that a cousin, who had died in a car crash in 1995, told him details about the crime. However, the state police investigated his cousin's whereabouts the night of the murder and concluded he was not a suspect. Cherrix began serving a 9-year sentence for wounding his half-brother with a shotgun.

Then, in April 1997, he was sent back to the Accomack County Jail on new charges, including grand larceny. On April 25, 1997, police say, they advised Cherrix of his Miranda rights and that he confessed to committing the Van Hart slaying. Cherrix took police and an Accomack County deputy sheriff to Chincoteague, to show them locations he described in his confession. He even pointed out where the murder weapon had been thrown into a creek.

Cherrix was convicted and sentenced to death in early 1998. In a 2001 phone interview, however, Cherrix denied he committed the crime. He acknowledged he confessed to police but said he did so to get them to stop bothering him.

UPDATE:

Ida Bell Ward was afraid she wouldn't live to see this day. Since her daughter died, it has been what kept Ward going: the thought that she'd witness the end of the man who took Tessa from her. Tomorrow is the day she's been awaiting.

At 9 p.m., Ward will sit with her remaining children behind a glass wall with one-way visibility. Then the door of the execution chamber will open, and there he'll be -- Brian Cherrix of Chincoteague Island, Va., the man who stole everything from her. Correctional officers will lead him to a gurney, where he'll be strapped down. He'll be allowed a few moments to speak with a spiritual adviser, who then will leave. Curtains will close around the gurney. The execution team will insert intravenous needles into 30-year-old Cherrix's arms. The curtains will reopen, and the first of three death-inducing chemicals will be injected into him. Within minutes, Cherrix will stop breathing and his heart will stop beating.

He'll be dead -- just like Tessa, says Ward. "It's an eye for an eye. That way, he'll be gone, too." Tomorrow night's execution will be the official end of the Cherrix case, one of the most infamous crimes in Shore history. Ten years of murder and suspicion, confession and denial, anger and unimaginable sorrow will culminate in the death of the man found guilty of the 1994 sodomy and murder of island resident Tessa Van Hart, a young wife and mother. After a final report confirming his death, media coverage of the case will come to a halt. Cherrix's body will be buried, his face unlikely to appear on television or in newspapers again. There will be closure. At least, that's what they hope.

Two weeks before the execution, there were two women who spoke of closure. Their lives unwittingly and unwillingly linked by the tragedy, both wanted tomorrow night to arrive -- to get it over with. Ward hopes she'll find a measure of peace with the death of the man she calls a monster. After the execution, she plans a visit to Van Hart's grave near her home here. She wants Tessa to know her death has been avenged.

The other woman, Louise Cherrix -- the grandmother who raised Brian Cherrix -- also hopes to find peace after the execution. She says there will be a measure of comfort in knowing that when she dies, her grandson won't be left with no one who cares about him. "I'm sorry for what he's done, but I don't love him any less for him having done it," says Louise Cherrix.

The Cherrix story is not short on tragic figures. In addition to Ward, there is Walter "Binky" Van Hart, the victim's husband, who helped police search for his wife when she failed to return from a pizza delivery to the shop where they both worked. Officers found her near the murder scene in the back seat of her Pontiac, the engine running, the pizza still in the car. She had been shot twice in the head. Tessa Van Hart also had a sister and two brothers who accompanied Ward to the island that night, Jan. 27, 1994, to look for her. Other family members were close to her as well.

Then there are Van Hart's children, Corra and Little Bink, who have grown up without a mother and sometimes still cry for her. Ward says the boy suffers especially with feelings of guilt. He was just 2 when his mother died. Sometimes he cries because he can't remember her. Corra, now 15, is the image of her mother. "Sometimes I even call her Tessa," Ward says.

The children are what Louise Cherrix remembers, too. She wipes away tears when thinking about the Van Hart children's loss. But some people will feel no sympathy for Louise Cherrix, recalling that during the trial, she tried to give her grandson an alibi for the night of the murder. She says he didn't tell her until later that he was guilty. Still, she can't help but love him. "I'm not sorry for anything I've done for him," she says.

Execution carried out in'94 killing of woman

Friday, March 19, 2004

JARRATT - Brian Lee Cherrix was executed by injection last night for the 1994 capital murder of Tessa Van Hart in Chincoteague. Cherrix, 30, was pronounced dead at 9:10 p.m. in the death house of the Greensville Correctional Center, said Larry Traylor, spokesman for the Virginia Department of Corrections. When asked if he would like to make a last statement, Cherrix said, "No, I do not."

Van Hart, 23, the mother of a young son and daughter, was a pizza delivery woman. Cherrix lured her to her death with a phony pizza order on the night of Jan. 27, 1994. Van Hart was sodomized and shot twice. Her body was found in her car near the vacant home where she attempted to deliver the pizza. The killing went unsolved for three years.

In 1997, when being held in jail for unrelated crimes, Cherrix confessed to police after first trying to blame the slaying on a deceased cousin. In a 2001 interview with The Times-Dispatch, Cherrix denied he was guilty and said he confessed only so police would stop bothering him. Cherrix declined to be interviewed last week.

In 2001, Cherrix won a court order for DNA testing in the case but the bio- logical material in question proved unsuitable for testing. Robert L. Jenkins Jr., one of Cherrix's lawyers, said that Cherrix did not want to ask Gov. Mark R. Warner for clemency and that he had instructed his lawyers not to file any appeals on his behalf.

Yesterday evening, Warner issued a statement noting that Cherrix's death sentence had been affirmed by the Virginia Supreme Court. "I have not been asked by Mr. Cherrix to intervene, there are no legal challenges to this scheduled execution, and accordingly, I expect the court-ordered sentence to be carried out," he said.

Cherrix, citing his belief that the human body is a temple that should not be mutilated, won permission from the state medical examiner's office to not have his body autopsied after his execution as is the standard practice. Instead, said Jenkins, the medical examiner planned to closely view Cherrix's body and take a blood sample for toxicology testing after his death.

Traylor said that members of Van Hart's family witnessed the execution. He could not say who they were or how many were present. Traylor said Cherrix visited with immediate family members, the clergy and his lawyers yesterday afternoon.

Cherrix was the first person executed in Virginia this year and the 90th since the death penalty was allowed to resume by the U.S. Supreme Court in 1976.

Eastern Shore man executed for 1994 murder of young mother

Fredericksburg.com

AP - March 19, 2004

JARRATT, Va. - A man who sodomized and murdered a young mother of two he lured to a vacant house on Chincoteague Island was executed last night. Thirty-year-old Brian Lee Cherrix was convicted of killing 23-year-old Tessa Van Hart in 1994.

He was pronounced dead by lethal injection at the Greensville Correctional Center at 9:10 p.m. He had given up his final federal appeal and did not file a clemency petition with Governor Mark Warner.

Police said Cherrix attacked Van Hart after she delivered a pizza to an empty home on the thinly-populated island, then shot her twice in the head to prevent her from reporting the incident.

Cherrix entered the death chamber wearing a light blue shirt and dark blue pants, and had his hair combed neatly and parted in the middle. He had no last words, but his spiritual adviser leaned over and said a few words to him after he was strapped to the gurney. Cherrix met with his two sisters, his daughter and an aunt today.

Virginians for Alternatives to the Death Penalty

Tessa Van Hart, a pizza delivery woman, was sodomized and murdered while making a delivery outside of Chincoteague, Virginia, on January 27, 1994.

In April 1997, Brian Lee Cherrix, then incarcerated, confessed to the murder. At trial, Cherrix contended that this confession was fabricated. In 1998, he was convicted of capital murder based upon the jury's finding of both vileness and future dangerousness.

The Supreme Court of Virginia consolidated Cherrix's appeal with its proportionality review. The court summarily dismissed a number of Cherrix's claims and labeled its discussion of them as "Issues Previously Decided." These arguments were based upon the general constitutionality of the Virginia capital murder statutes.

The court's discussion of Cherrix's Brady claim is noteworthy for its implications to defense counsel. Cherrix's grandmother testified as an alibi witness for him at trial. The Commonwealth introduced a written statement, signed by Cherrix's grandmother, containing essentially the same information as her trial testimony, albeit with a fifteen-minute time discrepancy.

Presumably, the statement was offered to impeach Cherrix's grandmother. The defense objected to the admission of the statement since it contained exculpatory information that had not been disclosed by the Commonwealth, in violation of Brady v. Maryland. Cherrix argued on appeal that, despite the defense counsel's knowledge of the general exculpatory material contained in the statement, the admission of the statement demonstrated the Commonwealth's lack of good faith and violated the due process clause.

The Supreme Court of Virginia rejected this argument, noting that the statement would not have been material exculpatory evidence, as required by Brady. Presumably, this finding of "immateriality" was based upon defense counsel's knowledge of Cherrix's grandmother's availability as an alibi witness.

However, defense counsel's anticipated access to material held by the Commonwealth is irrelevant when evaluating a Brady claim. Thus, the Commonwealth's duty to disclose is in danger of becoming defense counsel's duty to discover. The Supreme Court of Virginia rejected all of Cherrix's claims and upheld his death sentence on February 26, 1999.

In January 2001, Federal District Court Judge Gerald Bruce Lee ordered the state to turn over seminal fluid taken from Van Hart’s body for further DNA testing. The evidence was tested at the time of the crime, but more precise tests are available today. The Fourth Circuit issued an emergency stay on February 5, 2001, blocking the order. In July of 2001, after hearing arguments from the Virginia Attorney General’s Office, the Fourth Circuit sided with the lower court and ordered that DNA testing be carried out. The tests were once again inconclusive.

An execution date for Brian Lee Cherrix has been set for March 18, 2004.

Judge Orders DNA Testing For Inmate On Death Row

January 12, 2001

A federal judge for the first time has ordered new DNA testing for Virginia death row inmate, ruling that Brian Lee Cherrix needs the lab worto verify his claim that he was wrongfully convicted of killing a pizza delivery woman. However, Virginia Attorney General Mark L. Earley yesterday asked a federal appeals court to block the ruling, arguing that U.S. District Judge Gerald Bruce Lee in Alexandria overstepped his constitutional authority when he ordered the state to turn over the evidence.

The case comes at a time when post-conviction DNA testing has exonerated nine American death row inmates, including Earl Washington Jr., who was pardoned by Virginia Gov. James S. Gilmore III in October.

Unlike some states, Virginia does not give prisoners the legal right to ask for DNA testing, but both the Virginia Supreme Court and the state legislature are considering making it easier for inmates to get testing and new trials. In the meantime, some inmates, including Cherrix, have turned to the federal courts.

Cherrix, 27, was sentenced to death in the 1994 killing of Tessa Van Hart, 23, who was lured to a remote home on Chincoteague Island, sodomized and then shot twice in the head. DNA testing on sperm found in the victim's body was inconclusive, and the case went unsolved for two years until Cherrix was arrested on another charge and offered to give authorities information about the killing in exchange for leniency.

Those statements, in which police say he confessed, then became the linchpin of the prosecution's case. Cherrix has denied confessing and says he has an alibi. The Virginia Supreme Court has twice upheld Cherrix's conviction.

Cherrix's attorneys now argue that scientific advances have made new, more precise DNA testing possible, and on Tuesday, Lee agreed that the laboratory work should be done and that the court would pay for it. "It is possible for current DNA testing methodologies to show that [Cherrix] is actually innocent, which may, in turn, render his execution unconstitutional," Lee wrote in a nine-page decision. He ordered Earley's office to preserve the biological evidence from Cherrix's Accomack County trial.

Earley's office responded by asking the 4th U.S. Circuit Court of Appeals to overturn Lee's decision, arguing that the federal courts do not have the authority to order DNA testing during an appeal of a state death penalty case. "This matter is not an issue about Cherrix's alleged innocence; it is about what we believe to be a clear abuse of federal judicial power," said Earley's spokesman, David Botkins. "We believe that a federal court cannot compel a state official to act as a private investigator, courier and laboratory for a convicted capital murderer."

Botkins noted that the legislature is considering the testing issue right now and that Cherrix could also ask Gilmore to order a DNA test. The governor has ordered DNA testing in Washington's case and in the case of Derek R. Barnabei, who was executed this summer after the testing inculpated rather than exonerated him.

Cherrix's lead attorney, Michele Brace, praised Lee's decision, saying, "we are pleased the judge recognized the importance of DNA in this case." "It's ironic that the attorney general is fighting so hard to prevent DNA testing of a prisoner who may be innocent of the crime, when the Virginia Supreme Court and the General Assembly are looking for ways to make it easier for innocent prisoners to get DNA tests in state courts," Brace said.

VUAC - Virginians United Against Crime

Victim: Tessa VanHart
Murderer: Brian Lee Cherrix
Date/Location of Homicide: January 27, 1994, Accomack County
Aggravating Factor: rape
Execution Date: March 18, 2004

Virginian-Pilot, The (Norfolk, VA)

"KILLER GETS RARE DEATH SENTENCE IN ACCOMACK," by CINDY CLAYTON. (March 12, 1998)

On Wednesday, Brian Lee Cherrix apparently became the first person to receive the death penalty in Accomack County in half a century, when a judge formally imposed the sentence decided by a jury last month.

Cherrix was convicted of the 1994 murder of Tessa VanHart, a young mother of two who worked as a pizza delivery driver in Chincoteague. Accomack Commonwealth's Attorney Gary Agar said juries have handed down many life sentences, but he could not recall any death penalty cases. ``I haven't researched that, but it's my understanding that the last death penalty was imposed in 1946.''

VanHart's murder shocked people in the community, where people feel safe enough to leave their front doors unlocked, said Police Chief Willis Dize. ``This girl, Tessa VanHart, was a young girl. She was not supposed to be in any danger as she ran out to deliver pizzas on this tiny island,'' Agar said. Murders are uncommon in the community, Dize said. ``The last murder we had before this one was in 1991. The last one before that - I don't even remember. I wasn't even here.''

Cherrix told police that he lured VanHart to an isolated home by calling to have a pizza delivered there. When VanHart arrived, Cherrix was waiting for her behind the home. He sodomized her at gunpoint, then shot her twice in the head.

Chincoteague police, the Virginia State Police and the Accomack Sheriff's Department worked on the case for four years before Cherrix confessed to the crime. While Cherrix was incarcerated and awaiting sentencing for shooting and wounding his brother, he told police that he knew who killed VanHart, Dize said. After changing his story several times, Cherrix finally confessed to the crime, Dize said.

``It took a long time to focus on (Cherrix) to the point that we did obtain a particular suspect,'' Agar said. ``I think the sentence, as far as it goes, was justified. It was called for in this particular case,'' Agar said. ``You have a young lady who was out here trying to make a living for two children, and nobody deserves to die the way she died. It's just something we cannot allow to happen in this society.''

Virginian-Pilot, The (Norfolk, VA)

"ACCOMAC SLAYING CASE GOING TO GRAND JURY; SUSPECT CONFESSED TO ONE CRIME WHILE HE WAS SERVING TIME FOR ANOTHER," by KAREN JOLLY DAVIS. (June 19, 1997)

Brian Lee Cherrix told police that he killed Tessa VanHart because he was afraid she would tell someone that he had forcibly sodomized her, an officer testified Wednesday. Cherrix's confession to Chincoteague police Captain Eddie Lewis was the key piece of evidence in Wednesday's preliminary hearing for the capital murder case.

After more than four hours of testimony, General District Court Judge Robert Phillips ruled that there was probable cause to suspect Cherrix of the Jan. 27, 1994, crime, and certified the case for presentation to the grand jury.

Three years ago, VanHart left a restaurant on Chincoteague to deliver a pizza and never returned. After searching the island, police found her car parked behind an empty, isolated house. A large pizza was on the front seat. VanHart was dead in the back.

Testimony Wednesday revealed that the 23-year-old mother had been shot twice with a small-caliber weapon, once behind each ear. Her coat and shirt were pushed up toward her shoulders. Her jeans were pushed down, with one leg and shoe completely off, and underpants tangled in the jeans. Dr. Leah Bush, assistant chief medical examiner for the state in Norfolk, said she performed VanHart's autopsy and found evidence of anal intercourse. There was also dirt and grass on her knees, said Bush.

For more than two years, police searched fruitlessly for enough clues to solve the case. Accomack County Sheriff Robert Crockett said that Cherrix asked to speak with him on June 4, 1996. ``He told me that he had information on the Tessa VanHart murder that he would give to me,'' Crockett said at the hearing. At that time, Cherrix had been convicted of shooting his brother in the face. Crockett said Cherrix wanted his cooperation to weigh favorably in his sentencing.

Crockett and several other police officers told the court on Wednesday that, over time, Cherrix came up with a series of conflicting stories about the VanHart murder. Cherrix originally said Bobby Birch, a cousin of his who had subsequently died in an auto accident, killed the girl.

On June 7, 1996 - still contending that Birch shot VanHart - Cherrix showed police where to find the murder weapon. Two state police divers found a Marlin 22-caliber rifle in Sheepshead Creek, where Cherrix said it would be. FBI agent Steve Caspar testified that markings on the bullets that killed VanHart match those test-fired by the recovered weapon. On April 25, Cherrix, serving a nine-year sentence for shooting his brother, asked his jailers if he could speak to Capt. Lewis. That was the day he confessed, Lewis testified. He was charged within a week.

"I always admired her. I would order pizza and give her a $20 tip just to see her,'' Lewis testified that Cherrix told him. ``She told me I had pretty kids, like their father.'' According to Lewis, Cherrix ordered the pizza and hid behind the cinderblock chimney of an empty house to wait for VanHart. He threatened her with the rifle, and she lay face down in the dirt, begging for her life, swearing she would act like it never happened, Lewis testified Cherrix told him. She cried. He cried. Then, he ``just snapped'' and shot her, Lewis testified. She twitched a bit, so he shot her again.

"I went home and called my wife like nothing happened,'' Lewis said Cherrix told him. During the hearing, families of the victim and the accused sat quietly. Cherrix, dressed in white prison clothes, rested his chin on his hands and stared at the table.

National Coalition to Abolish the Death Penalty

Brian Cherrix, Virginia - March 18, 9 PM EST

The state of Virginia is scheduled to execute Brian Cherrix, a white man, March 18 for the 1994 murder of Tessa Van Hart in Accomack County. Ms. Van Hart was a 23-year old mother of two who worked as a pizza delivery woman. Mr. Cherrix was convicted of ordering a pizza to an isolated home and shooting Ms. Van Hart after sexually assaulting her. Allegedly Ms. Van Hart had refused Mr. Cherrix’s romantic advances in the past.

After four years, Mr. Cherrix confessed to the crime while in prison for an unrelated offense. Mr. Cherrix also implicated his cousin, Robert Birch III, as the murderer; however Mr. Birch had died the year previous to this confession and police apparently found an alibi for his activities on the night of the murder. At trial, Mr. Cherrix’s lawyers subpoenaed a penologist, corrections officials, a sociologist and an inmate to testify on his behalf. The state quashed all subpoenas.

After Mr. Cherrix’s conviction, his appellate counsel requested DNA testing, which was unavailable at the time of trial, on the semen found in Ms. Van Hart. A judge ordered the testing done, ruling that Mr. Cherrix’s innocence could be proven by a DNA test that did not link him to the crime. The state of Virginia stepped in and requested that a federal appeals court to block this ruling; however the court allowed the testing to proceed.

The results of the DNA testing were inconclusive; they neither incriminated Mr. Cherrix nor cleared his name. Due to the lack of substantial and compelling evidence, questions remain surrounding Mr. Cherrix’s guilt. Please contact Gov. Warner and urge him to commute the death sentence of Brian Cherrix.

Man executed for mom's 1994 murder

CNN.com

March 19, 2004

JARRATT, Virginia (AP) -- A man who sodomized and murdered a young mother of two he had lured into a vacant house was executed Thursday night. Brian Lee Cherrix, 30, convicted of killing 23-year-old Tessa Van Hart in 1994, was pronounced dead by lethal injection at the Greensville Correctional Center at 9:10 p.m. He had given up his final federal appeal and did not file a clemency petition with Gov. Mark R. Warner.

Cherrix entered the death chamber wearing a light blue shirt and dark blue pants and had his hair combed neatly and parted in the middle. He had no last words, but his spiritual adviser leaned over and said a few words to him after he was strapped to the gurney. Cherrix met with his two sisters, his daughter and an aunt Thursday.

Police said Cherrix attacked Van Hart after she delivered a pizza to an empty home on thinly populated Chincoteague Island, then shot her twice in the head to prevent her from reporting the incident. Van Hart's murder remained unsolved for more than two years until Cherrix contacted the Accomack County sheriff from jail where he was awaiting sentencing for shooting his half-brother. Cherrix told police that his cousin had killed Van Hart and he would provide them with information about the crime in exchange for leniency. The cousin had died a year earlier.

However, police said Cherrix gave them conflicting stories and later confessed to killing Van Hart himself. Cherrix had maintained he was coerced into making incriminating statements to police, according to his attorney Robert Jenkins. Cherrix was convicted and sentenced to death in 1998. The Virginia Supreme Court rejected Cherrix's appeal a year later, and DNA testing Cherrix requested on seminal fluid found in the victim's body in 2003 proved inconclusive.

RICHMOND - Governor Mark R. Warner tonight issued the following statement on the scheduled execution of Brian Lee Cherrix by the Commonwealth of Virginia:

“Mr. Cherrix was convicted of the capital murder and forcible sodomy of Tessa Van Hart. The death sentence imposed on Mr. Cherrix was reviewed and affirmed by the Supreme Court of Virginia.

TheDeathHouse.Com

Cherrix was sentenced to death for the rape and murder of a young mother of two who worked as a pizza delivery woman. His execution date is March 18. He confessed to the murder, but now claims he was harassed into making a false confession. The victim was Tessa VanHart, 23. She had been sodomized and murdered while making a pizza delivery near Chincoteague on Jan. 27, 1994.

Her body was found in the back of her car on Small Piney Island several hours after she disappeared. She had been shot twice in the head. Cherrix, 30, gave up his final appeal and refused to ask for clemency. He would become the first Virginia death row inmate to be executed in 2004.

The murder of VanHart remained unsolved until April 1997. It was then that Cherrix, in jail on a charge of attempting to murder his brother, summoned lawmen to say that he had information on the unsolved murder of VanHart. He wanted to give information in exchange for leniency on the attempted murder charge. He sought to pin the murder on a cousin, who had since died.

Cherrix told lawmen he knew about the missing woman, indicating that a cousin of his had killed her. He said his cousin had told him where the murder weapon was disposed of - in a river. He told police where to find it. Lawmen found the weapon exactly where Cherrix said it was tossed.

During subsequent questioning by investigators, prosecutors say Cherrix admitted twice to luring VanHart to a deserted house and killing her after she rejected his romantic advances. Cherrix has since recanted that confession, saying he was harassed into making it. Defense lawyers also battled to get DNA testing of seminal fluid found in the victim's body. However, testing was not conclusive.

Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999) (Direct Appeal).

Defendant was convicted in the Circuit Court, Accomack County, Glen A. Tyler, J., of capital murder, forcible sodomy, using a firearm during commission of a felony, and possession of a firearm after being convicted of a felony, and was sentenced to death for capital murder. Consolidating defendant's appeals from capital murder conviction and non-capital convictions, the Supreme Court, Lacy, J., held that:

(1) finding that defendant knowingly and intelligently waived his rights prior to making statements was supported by evidence;

(2) failure to disclose written exculpatory statement of defendant's grandmother did not violate Brady rule;

(3) question and answer document prepared by police officer constituted a written confession;

(4) mental health expert met statutory qualification requirements;

(5) proffered testimony of inmate, Department of Corrections officials and various experts was not relevant mitigation evidence;

(6) findings of statutory aggravating factors of future dangerousness and vileness were supported by sufficient evidence;

(7) death penalty was not result of passion or prejudice; and

(8) imposition of death penalty was not disproportionate to sentences imposed for similar crimes. Affirmed.

LACY, Justice.

In this appeal, we review the capital murder conviction and death penalty imposed upon Brian Lee Cherrix, along with his convictions for forcible sodomy, two counts of using a firearm in the commission of a felony, and possessing a firearm after being convicted of a felony.

I. Facts

On the night of January 27, 1994, 23 year-old Tessa Van Hart was working as a pizza delivery person at a pizza delivery restaurant on Chincoteague Island. A man telephoned the restaurant and ordered a pizza to be delivered to an address in the "Small Piney Island" area of Chincoteague.

Around 7:45 p.m., Van Hart left the restaurant to deliver the pizza. When Van Hart failed to return from the delivery, the Chincoteague police were notified, and they began a search for Van Hart.

Shortly after midnight on January 28, the police found Van Hart's vehicle behind a vacant home approximately one mile from the Small Piney Island area. Van Hart's body was found in the back seat.

An autopsy revealed that Van Hart died from two gunshot wounds to the head. The autopsy also showed that she had been sodomized and had suffered bruises and abrasions on her forehead, cheek, nose, and mouth sometime around the time of death. In the yard of the house to which Van Hart was to have delivered the pizza on January 27, the police found two bloodstains which DNA typing showed to be consistent with Van Hart's blood.

The murder of Tessa Van Hart remained unsolved for over two years. On June 3, 1996, however, Brian Lee Cherrix, who was in the Accomack County Jail pending sentencing on unrelated charges, contacted the Accomack County Sheriff, Robert Crockett. Cherrix said that he had information concerning the Van Hart murder that he would share with police in return for leniency on his pending sentencing.

Cherrix told Crockett that his cousin, Robert Birch, III, had killed Van Hart. Cherrix claimed that Birch had told him in February 1994 that he, Birch, had lured Van Hart to an unoccupied residence by ordering a pizza, raped and shot her, and then discarded the rifle used in the crime in a nearby creek. Birch died in 1995.

The state police began an underwater search of the creek for the murder weapon. When Cherrix was informed that the dive team had not recovered the rifle, he agreed to go to Chincoteague to show the officers the location of the rifle according to what Birch supposedly had told him.

At the search site, Cherrix directed Trooper Mark Fowler to the place he claimed that Birch had told him he had thrown the rifle. Fowler testified at trial that, while Cherrix maintained that he was only relating facts imparted to him by Birch, Cherrix would occasionally lapse into the use of the first person in describing how and where the rifle came to be located in the creek. The divers recovered a .22 caliber Marlin rifle at the location indicated by Cherrix.

Later that same day, Cherrix was taken to the City of Chesapeake, where he was interviewed by state police investigator Lloyd Dobbs. After being advised of his Miranda rights and signing a written waiver of those rights, Cherrix gave several differing versions of the story Birch supposedly had told him, all the while using hand and arm gestures to demonstrate how Birch supposedly had disposed of the rifle. Sheriff Crockett then took Cherrix back to Accomack County Jail.

Although Birch had died in 1995, the police conducted an investigation of his whereabouts on the night of the murder, and they concluded that he was not a suspect in the Van Hart murder. In August 1996, after having been sentenced on unrelated charges to 20 years imprisonment with all but nine years suspended, Cherrix was transferred to the custody of the Virginia Department of Corrections to serve his sentence.

On April 16, 1997, Cherrix was returned to Accomack County Jail on charges of uttering and grand larceny. During the drive from Brunswick Correctional Center to the Accomack County Jail, Chincoteague Assistant Police Chief Edward Lewis interviewed Cherrix regarding the Van Hart murder. After Lewis advised Cherrix of his Miranda rights and Cherrix agreed to discuss the matter, Cherrix told Lewis yet a different version of what he claimed had happened on the night of the murder, still maintaining that Birch had committed the murder.

On April 17, 1997, counsel was appointed for Cherrix's uttering and grand larceny charges. On April 25, 1997, Cherrix submitted a written request to the Accomack County Jail authorities asking to see Lewis. Lewis went to the jail to see Cherrix. After Lewis advised Cherrix of his Miranda rights and Cherrix reaffirmed that he wanted to speak with Lewis, Cherrix confessed to the murder and sodomy of Van Hart. Cherrix then accompanied Lewis and an Accomack County sheriff's deputy to Chincoteague, where he directed the officers on a tour of various locations that he had described in his confession.

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We find no reversible error in the issues presented in this case. After reviewing Cherrix's death sentence pursuant to Code § 17-110.1, we decline to commute the sentence of death. Therefore, we will affirm the judgment of the trial court.

Cherrix v. Braxton, 131 F.Supp.2d 756 (E.D.Va.,2000) (Habeas).

After petitioner's state capital murder conviction was upheld on direct appeal, 513 S.E.2d 642, petitioner sought habeas relief. The District Court granted injunctive relief to petitioner for purpose of conducting DNA testing of seminal fluid found in murdered woman. On state's petition for writ of mandamus relating to the injunction, the District Court, Lee, J., held that:

(1) District Court had authority under funding assistance in capital cases statute to grant petitioner's request for funds;

(2) custodians of DNA evidence would be required to make it available for testing;

(3) rule providing for financially unable defendants in capital cases authorized funding for services which were reasonably necessary to support petitioner's writ of habeas corpus;

(4) discovery of evidence was reasonably necessary for dual purpose of supporting habeas petitioner's claims of actual innocence and using innocence as gateway to show that prejudice resulted from his counsel's ineffective assistance; and

(5) petitioner had shown good cause for DNA retesting. Writ denied.