The facts
As recited by the Virginia Supreme Court, the underlying facts
are as follows:
In 1983, Fisher and his victim, David
Wilkey, were both residents of Charlotte, North Carolina.
Wilkey's parents had separated in Norfolk, Virginia, when Wilkey
was three months old and his mother had moved to Florida with
him.
When Wilkey was 17 years old, he left
his mother's home and went to Norfolk on a fruitless search for
his father. He finally went to live in Charlotte with a cousin
of his father. Wilkey had a ninth-grade education and was 18
years old at the time of his death.
Fisher met Wilkey at a motel in
Charlotte in late 1982 and appeared to befriend him. Wilkey
moved into Fisher's apartment and occasionally worked for him.
Fisher was in the business of transporting bodies for a funeral
home and for the coroner.
Fisher devised a plan whereby Wilkey
would become close to a young woman named Bonnie Jones, Fisher
would obtain an insurance policy on her life, and Wilkey would
kill Bonnie for a share of the insurance proceeds. Fisher went
so far as to buy Wilkey a car and provide him with money to date
Bonnie, but Wilkey fell in love with Bonnie and backed out of
Fisher's scheme. Wilkey and Bonnie had plans to return to
Florida to be married the first week in December 1983.
In the summer of 1983, Fisher, having
learned of Wilkey's defection, told Bobby Mulligan, who was,
like himself, a frequenter of coffee houses in Charlotte, that
he wanted to get his money back from Wilkey. Fisher proposed
that if Mulligan would agree to shoot Wilkey while the three
were on a hunting trip, and make the killing appear accidental,
Fisher would arrange to insure Wilkey's life and would divide
the proceeds with Mulligan.
Fisher also approached Gerald Steadham,
yet another frequenter of Charlotte coffee houses, with a
proposal to push Wilkey off a ledge while on a fishing trip.
Steadham accompanied Fisher to an insurance office where Fisher
obtained a policy on Wilkey's life.
Fisher had no legitimate insurable
interest in Wilkey, but nevertheless obtained a policy on
Wilkey's life with Kentucky Central Life Insurance Company for
$50,000 with a double indemnity clause in case of death by
accident. Fisher paid the $89.50 initial premium.
The original application for insurance,
submitted in September 1983, was taken by an insurance agent in
Charlotte named Kenneth Daren Tietsort. It showed Fisher as
owner and beneficiary of the policy. Fisher identified himself
as Wilkey's "guardian."
Upon receipt of the application at the
company's office in Lexington, Kentucky, the company wrote to
Tietsort to ascertain whether Fisher was in fact a court-appointed
guardian. Tietsort telephoned the company and suggested that the
beneficiary be shown as Wilkey's estate until Fisher's status
could be verified. The policy was issued in that form on
September 27, 1983.
In October, 1983, the company received
three additional documents from Tietsort: an "amendment to
application" signed by Tietsort and two "requests for change of
primary beneficiary," purportedly signed by David Fisher and
David Wilkey, respectively. These papers requested that the
beneficiary be changed from Wilkey's estate to "David Fisher,
personal friend."
On October 11, the company refused to
approve the change, questioning the genuineness of Wilkey's
change-of-beneficiary form. On October 24, however, the company
reversed its position and approved the change of beneficiary.
The evidence does not reveal what motivated this change of
position.
About this time, Fisher told Mulligan
that he had experienced some problem getting an insurance policy
on Wilkey's life, but that he had persuaded an insurance man to
"take care of it" for a promise of one- third of the proceeds.
Fisher promised Mulligan $38,000, more than one-third, because
Mulligan was to do the actual killing.
Fisher's plan was to go to Bedford
County, Virginia, near the residence of his ex-wife, on the
opening day of deer season in Virginia. Included in the party
were to be Wilkey, Fisher, Mulligan, and Jody Ayers, a 16- year
old son of Fisher's ex-wife, who was to be brought along to make
their visit to Bedford County "look natural." The plan was for
Fisher to provide guns for the party and later dispose of the
murder weapon and try to have Wilkey's body cremated.
The hunting trip took place in Bedford
County on November 21, 1983, as planned. While walking through
the woods, Mulligan became reluctant, but Fisher encouraged him
to persevere. About 3:30 p.m., while Jody was resting some
distance away, Wilkey ran down a hill after a deer. Mulligan
followed him, with Fisher close by. Mulligan shot Wilkey in the
back with a 12 gauge slug, mortally wounding him.
Fisher yelled to Jody to run for help,
then, according to a statement Fisher later made to Steadham,
Fisher ran up to Wilkey, who was lying face down on the ground,
and told him "if I had my .38 I'd blow your . . . head off."
According to Mulligan's later testimony, Fisher attempted to
insert his hand into the wound in order to stop Wilkey's heart.
Steadham also testified that Fisher later admitted this to him.
When Jody returned with Bedford County
officers and the rescue squad, Wilkey was dead. Fisher and
Mulligan both gave statements to the effect that Mulligan had
slipped while running downhill after Wilkey and that his shotgun
had discharged accidentally. The Bedford County authorities at
the time treated the shooting as a hunting accident. They
charged Fisher and Mulligan with misdemeanors, but when these
cases were tried in general district court on December 19, both
men were fined and permitted to return to North Carolina. The
murder weapon was returned to Fisher.
Two days later, Fisher filed a claim
for the $100,000 accidental death benefit on the insurance
policy he held on Wilkey's life. Reluctant to make payment, the
company initiated an investigation of the circumstances
surrounding Wilkey's death and referred the matter to John
Manning, an attorney in Greensboro, North Carolina.
In May 1984, Fisher went to the
attorney's office and belligerently demanded payment,
threatening to sue the company and claim punitive damages. The
attorney, who was himself a hunter, noted from the autopsy
report that wadding from the fatal shotgun shell had entered the
wound and penetrated the heart cavity. This, he thought, was
inconsistent with the statements of Fisher and Mulligan, and
also inconsistent with a drawing Fisher made in the attorney's
office, purporting to show that the shotgun had discharged 10 or
more feet away from Wilkey's back.
Confronted with this inconsistency,
Fisher became less demanding and showed himself amenable to
settlement. He eagerly accepted a check from the attorney for
$25,000 in exchange for a release of his claim against the
company. Later, he paid $7,000 of this to Mulligan.
Wilkey's mother called Fisher from
Florida when she heard of her son's death. Fisher told her that
at some time before his death, Wilkey had expressed a desire to
be cremated "if anything happened to him." She promised to have
her son's remains cremated. Fisher told her that Wilkey had no
money to help with funeral expenses and that there was no
insurance on him. Wilkey's mother had the body brought to
Florida and cremated there. Fisher did not attend the funeral,
but on that day or the next, called Wilkey's mother, expressed
sorrow, and inquired whether the body had in fact been cremated.
Mulligan remained in Charlotte for a
few months after the killing, and then moved to South Carolina.
In early 1985, he suffered a "nervous breakdown" and confessed
the murder to his parents. He was arrested by agents of the
Federal Bureau of Investigation in November 1986 and made a full
confession of all the details of the crime.
During the same month, the Bedford
County Grand Jury indicted both Mulligan and Fisher for capital
murder. Mulligan entered a guilty plea and was awaiting
sentencing at the time of Fisher's trial, in which Mulligan
testified for the Commonwealth. Both Mulligan and his attorney
testified that Mulligan had received no promises in exchange for
his testimony.
Gerald Steadham also testified against
Fisher. After Fisher described the killing to him, Fisher
offered him $5,000 to kill Mulligan. Fisher said that Mulligan
was beginning to talk about the killing and was claiming that
Fisher owed him more money. After a time, Steadham decided to
tell the Charlotte police of Fisher's statements. Fisher
apparently had sources of information within the police force
and discovered that Steadham had informed against him. He
threatened Steadham's life, which caused Steadham to take his
story to the F.B.I., but Fisher and Steadham continued to meet
and talk.
The F.B.I. began an independent
investigation of the crime in late 1985 and used Steadham to
gather incriminating admissions from Fisher. On five occasions
during the ensuing year, Steadham, "wired" by the F.B.I., met
with Fisher in various Charlotte coffee houses and engaged him
in lengthy conversations during which Fisher occasionally
discussed the killing of Wilkey. These conversations were
recorded on tape and transcribed. The tapes were played in full
as evidence at Fisher's trial.
VADP.org
When the case reached the Supreme Court,
Justice Brennan and Justice Marshall dissented and threw out the
sentence stating, "Adhering to our views that the death penalty
is in all circumstances cruel and unusual punishment prohibited
by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428
U.S. 153, 227, 231, 96 S.Ct. 2909, 2950, 2973 49 L.Ed.2d 859
(1976), we would grant certiorari and vacate the death sentence
in this case." However, the court's final decision upheld the
death sentence.
In November 1987, David Lee Fisher was
sentenced to death for the 1983 murder of David Wilkey.
Fisher and Wilkey had met in 1982 in a motel
in Charlotte, North Carolina, becoming fast friends and soon
after, roommates. Fisher was convicted of conspiracy to kill
Wilkey after Bobby Mulligan, the man who actually committed the
crime, testified to police that Fisher had agreed to pay him
money from the insurance settlement.
In an
attempt to gather evidence against Fisher, police wired a friend
of his, Gerald Steadham, and tape-recorded their conversations.
These recordings were then used against Fisher during the trial.
While they were played in their entirety during the trial, the
jury only received typed transcripts of the sections of the
tapes that the Commonwealth wished to highlight.
Fisher
later appealed the judge's decision to let the jury view
transcripts of only certain, incriminating portions of the tapes
but his appeal was denied.
In his
closing arguments, Fisher's attorney made the following remarks,
"And I would remind you that it has been brought out to you four
score and underlined in red that there are probably still a
dozen or so charges pending in North Carolina. Clearly, if you
sentence this man to life imprisonment he will never see the sun
shine again except through bars, and I think the ends of society
will be met. I plead with you, I ask you to let that be your
punishment."
This
statement was quickly objected to by the prosecution, however,
because the statement was already made in front of the jury the
judge permitted the Commonwealth to present a contrasting
statement to the jury. The prosecutor stated, " I personally
state to you as the Commonwealth's Attorney for this county and
as an elected official, that is not true, that is not accurate."
Despite
the fact that Fisher stood very little chance of ever being set
free again, the prosecution was still allowed to imply that
there was a distinct possibility that Fisher could potentially
be released into the community. The Appeal's court allowed this
remark and the judge's decision to allow the prosecution to
refute the defense's statement because it did not want to
encourage the defense to intentionally make errors which would
result in a mistrial.
David
Lee Fisher was executed on March 25, 1999.
