NEW YORK (AP) – A federal appeals court in Manhattan has upheld the death sentence for Donald Fell, who killed a Vermont supermarket worker as she prayed for her life.

Fell, now on death row in Terre Haute, Ind. after his 2005 conviction for carjacking and kidnapping, was the first man sentenced to death in Vermont in a half century.

Terry King, 53, of North Clarendon, Vt., was kidnapped from a Rutland, Vt., supermarket, taken across the state line to New York, and beaten and kicked to death in November 2000. Before that, Fell and an accomplice had killed Fell’s mother and her companion in Rutland.

In its decision Friday, the 2nd U.S. Circuit Court of Appeals said the strength of government’s case “convinces us that Fell, a Pennsylvania native, cannot show that any error prejudicially affected substantial rights.”

The court said it was troubled that the government elicited information from witnesses at the trial that Fell had satanic beliefs and tattoos, but found the information had no effect on the outcome.

Fell’s lawyers had argued that the information was irrelevant and was meant to demonize him and frighten the jury.

The appeals court said the government should not have exposed the satanic beliefs and tattoos without the ability to make a strong connection between the information and Fell’s motives to kill.

It said Judge William Sessions “presided over this complicated and difficult trial with care, fairness and an exemplary concern for the protection of Fell’s rights.”

Alexander Bunin, Fell’s public defender, and Assistant U.S. Attorney William B. Darrow did not immediately return telephone messages for comment.

Before trial, former Attorney General John Ashcroft rejected a plea deal in which Fell would have been sentenced to life in prison.

Friday’s ruling was the first time since the 1960s that the 2nd Circuit decided whether the death penalty was a fair sentence for an individual.

AP-ES-06-27-08 1519EDT

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