Juan Ignacio Blanco  


  MALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

  FEMALE murderers

index by country

index by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z




Murderpedia has thousands of hours of work behind it. To keep creating new content, we kindly appreciate any donation you can give to help the Murderpedia project stay alive. We have many
plans and enthusiasm to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.









Classification: Murderer
Characteristics: Rape - Torture - Drugs
Number of victims: 1
Date of murder: November 13, 1980
Date of birth: 1957
Victim profile: Patricia D. Cubbage, 22 (drug dealer and police informer)
Method of murder: Stabbing with knife 184 times
Location: Chesterfield County, Virginia, USA
Status: Executed by electrocution in Virginia on July 23, 1992
clemency petition
Murderer, Rapist Edward Fitzgerald Executed in Va.

By David Reed - The Washington Post

July 24, 1992

Edward B. Fitzgerald Sr. was put to death in Virginia's electric chair tonight for raping and repeatedly stabbing a woman, then leaving her in the woods to bleed to death.

Fitzgerald, 34, was pronounced dead at 11:12 p.m., said Wayne Brown, operations officer at the Greensville Correctional Center. There were no complications and Fitzgerald had no last words, Brown said.

Unlike many executions in which condemned men proclaim their innocence and pursue appeals until the end, Fitzgerald seemed resigned to his fate.

Fitzgerald said he was prepared to die for the 1980 murder of Patricia D. Cubbage.

Cubbage was tortured by machete wielding Fitzgerald and an accomplice after being abducted from home in Chesterfield County in 1980. She was hacked 184 times by Fitzgerald's machete. A tic-tac-toe pattern was hacked in her back by Fitzgerald while she was conscious. Pleading to be shot dead and put out of her misery, Cubbage ultimately died from blood loss.


Virginia Executes Man Convicted in Rape-Murder

The New York Times

July 25, 1992

A man convicted of raping, mutilating and murdering a drug dealer 12 years ago was executed in the electric chair at the state prison here Thursday night.

The 34-year-old prisoner, Edward B. Fitzgerald Sr., extended the first two fingers of each hand as if in a peace gesture as he was strapped into the chair. He did not speak.

Mr. Fitzgerald had been convicted of the rape and murder of Patricia D. Cubbage, a 22-year-old drug dealer and police informer whose body was found in Chesterfield County, in southern Virginia, in 1980. Ms. Cubbage had been stabbed at least 184 times, and a tick-tack-toe design had been hacked into her back with a machete.

In rejecting an early appeal filed by Mr. Fitzgerald's lawyers, the Virginia Supreme Court said the crime's violence "exceeded that of any of the cases we have reviewed."

At his trial, prosecutors maintained that Mr. Fitzgerald had killed Ms. Cubbage while trying to rob her of drugs. Mr. Fitzgerald maintained that he did not remember the crime because he had been under the influence of drugs and alcohol at the time.

The prisoner's last chance to escape the electric chair slipped away Tuesday when Gov. L. Douglas Wilder turned down a request for clemency. In seeking clemency, his lawyers said Mr. Fitzgerald had been the abused child of an alcoholic father. They also contended that legal flaws had marred his trial.

Speaking at the prison here, 50 miles south of Richmond, on Wednesday, Mr. Fitzgerald said he had instructed his lawyers not to pursue last-minute appeals "unless it was something that was going to work." No further appeals were filed.

Mr. Fitzgerald became the 15th person executed in Virginia, and the 178th around the country, since the United States Supreme Court's 1976 decision allowing the states to resume capital punishment.


Witness for the Condemned

Ron Squire Steffey

It was a most brutal murder. The victim bled to death, at night in a remote woods, after being raped and tortured with a machete and knife. What I was to witness tonight, however, would agonize even more my sense of morality surrounding the death penalty.

Tonight, July 23rd, another execution by the State of Virginia is planned for 11: 00 pm. Edward B. Fitzgerald, Sr., found guilty of the torture-killing of a Chesterfield woman during a drug dispute, will be strapped in an oak electric chair, and killed, to pay for a crime against the people of Virginia.

I was asked by the Virginia Correctional Department to be a witness for the condemned, after filling out a single-page application in the fall of 1991. Witnesses are chosen from that list of interested Virginians who send the form back to the warden at the Greensville Correctional Facility. Completing the form is simple. Name, address, profession, and a paragraph stating a reason for desiring to be a witness for an execution are its contents.

As an American government educator, my paragraph stated that I wanted the experience to broaden my understanding and ability to speak with authority on a national issue that continues to embroil our society's conscience.

Once selected, a Greensville operation's officer calls two weeks before the execution to verify my interest. If still interested, a certified letter follows, stating all details. The morning of the execution the same officer calls again to verify for the last time.

The Code of Virginia requires that at least six witnesses be present to view the execution. None of the official witnesses can be from the Corrections Department. After witnessing the execution, the State requires nothing more of them, not even a signature on an official witness document.

Tonight, ten witnesses are present. Two are female. One is a secretary for a judge, the other a reporter for the Associated Press.

Of the men, one is a TV anchorman, another a newspaper reporter, and a third Fitzgerald's prosecuting attorney at the original trial. The current Chesterfield County prosecuting attorney is present, the remaining witnesses are private citizens.

I haven't eaten since last evening, fearing that I may become nauseated during the actual execution later tonight. My summer studies in the Shenandoah Valley have been interrupted today in order to make the trip to Emporia, a town near the North Carolina border. Leaving my research on the European influence on Virginia's western frontier—German, Ulster and English culture, foods and lifestyles in the Valley—has taken some adjustment, rationally and emotionally, today.

I came to Emporia because I had a personal commitment to probe deeper into a national issue of great complexity and controversy—capital punishment—and possibly to reach some type of conclusion, or compromise for myself and for my students, maybe even for society.

Witnesses were instructed to meet at the Virginia State Police area headquarters at 9 o'clock, for verification of credentials and transportation, by van, to the prison at nearby Jarratt. As I drive to the rendezvous north of Emporia, on Route 301, midsummer insect sounds grow louder around me, reaching a crescendo as the night prevails. Long cirrus clouds are trying but cannot hide the final burst of orange and red of the sun as it nears the horizon. Many stores on both sides of the older divided highway have long since closed, victims of the Interstate Highway System.

When I arrive at the State Police building, the parking lot is empty. It's 8: 30. Maybe I read the instructions incorrectly. No. Here comes a car. This is the right rendezvous.

More arrive. Inside David A. Bass introduces himself as the Corrections Department liason for us tonight. Each of us has to provide identification to match the information on his list. My driver's license suffices. Bass, we quickly see, will become the catalyst who smooths out the harsh realities to come. He is a former teacher.

By the time we leave the small headquarters in a prison van the sun has disappeared. Little is said during the ten minute drive to the prison. Approaching the outer prison gate, Bass points out that the grassy fields to our left and right have been set aside for demonstrators, with the road serving as neutral ground.

This execution has generated no national or international interest. Fitzgerald has remained in seclusion all summer, not fighting the sentence of execution. The last execution here, in the spring, was totally different. Both sides of this field were packed with demonstrators. Tonight, as we pass, I see no one in the grassy fields.

The van continues on, through the outlying perimeters. In the employee parking lot to my left, I can see a row of TV station trasmitting vans, ready to broadcast to Virginians the official declaration of our State's edict to execute. Bass is telling us about the last execution in the spring. This lot was crowded with broadcasting units from across America and the world.

The van stops in front of a small building. For the next hour, Bass tells us, we will remain in this building for briefing and questions. Inside, he methodically and thoroughly reviews every detail of every step for tonight. Our duties this night are simply to watch. Simply?

Bass also gives us a summary of Virginia's methods of capital punishment. The first person electrocuted in the Commonwealth sat in the same chair we will see tonight on Oct. 13, 1908. Before that first state-sponsored execution, local sheriffs carried out the death sentence by hanging the guilty. My thoughts wander back to one of our country's presidents. Before Grover Cleveland was elected president, was one of his duties as a local sheriff to hang those condemned?

Henry Smith, a 22-year-old from then Norfolk County, was the first man sentenced to die in the oak chair I was about to see and remember for a long time. His crime was rape.

In May 1991, the original oak chair was moved from the Spring Street State Penitentiary in Richmond, to here at Greensville after the Richmond facility finally closed down (parts of it dated back to the late 18th century). Spring Street was the scene of 247 executions after that first one in 1908. Three have been held here since May 1991. Tonight will be the fourth one, 251st since 1908. Virginia is one of the country's top five "killing" states, according to statistics.

The only woman ever executed in the Old Dominion's electric chair was Virginia Christian, in 1912 for murder. The youngest was a 16-year-old boy, in 1916. That same year, the oldest was executed, age 68. In 1951, five men were electrocuted the same night, one after the other. Old-timers have stories to tell of that night on Spring Street. The next execution will take place on August 20th.

"Why does Virginia execute late at night?" I ask, during the briefing. "Are we trying to hide the action from the public?"

"Not at all," Bass answers. He goes on to explain that the late hour, 11 o'clock, is actually for the condemned's benefit. The execution orders from the court state that the condemned is to be put to death on a specific date. The late hour gives the condemned the benefit of having the entire day designated for his death to take care of last-minute affairs and for visits.

It is now 10: 25 pm. The briefing has ended. A few corrections officers have joined us. Everyone has an opportunity to use the bathrooms. Nervous as I am, the opportunity is taken.

Before we go back outside to the van to drive to "Hellville" (the nickname given to the building on the opposite side of the prison grounds and within the inner perimeters, where Virginia's executions are held), everyone, including all the officers with us, is searched thoroughly. Women in one room, men in another. No cameras, recorders, transmitting devices, or medications will be allowed past this briefing building.

The van driver drives through the employee lot, past the TV vans, on the last leg of our execution junket, into the viscera of the prison. We stop for the first gate to open, then move into a small holding arena. The first gate must close behind us before the second security gate in front of us opens. Security is always tightened on execution night. There is a general lock-down with all cells this night. An unspoken bond exists between the hundreds of prisoners here and the condemned. Each one knows the ritual.

As we head for "Hellville," moving closer and closer, my mind has difficulty in facing reality. I cannot holler out for the driver to stop, take me back. It dawns on me at this very moment: I have never seen anyone die, much less in such a way.

As we move into the bowels of the prison, I notice that the entire area is bathed in vapor lighting, the kind farmers use on a pole at the edge of their yards, for protection.

As we approach "Hellville," we were warned in the briefing earlier about what may happen as we exit the van. And it does. The time is 10: 41 pm.

At first it's barely audible. Sounds close to the insect noises I heard earlier. The volume increases. The sounds become a cacophony in my ears, unlike the insect noises. Muffled, faceless, almost ghostly. Now I can distinguish between insect and this new sound, as they grow more audible. Yells, screams and expletives spew and hurl from the rows of inmate cells in close proximity with "Hellville." They eerily take command of the normal night sounds and the vapor lighting surrounding this building before us.

"Walk single file, quickly, and don't look toward them," Bass tells us.

The heckling disappears once we enter "Hellville." As we are escorted down a short hall, I can see the room-within-a-room, the official witness viewing booth, to my left. Two large window partitions face the varnished chair. Our booth is tiered, for better viewing.

"The windows should have gone down to the floor," Bass explains. "You can't see his feet unless you stand at the window. This building was not originally planned as an execution chamber, by the way."

Some of the witnesses move to the window. My seat is at the back of the witness booth.

"During the execution, you may sit, move about, or stand at the window," Bass adds.

The first impression, upon entering the execution chamber—smell. Antiseptically clean, like a hospital ward. My eyes slowly begin to focus on the main attraction, 15 feet in front of us, past the windows. The plain cinder bock walls, forming a backdrop behind the chair, are painted gray. Lighting is bright. My eyes lock in on what appears to be a suitcase resting on the chair seat. "It's a device to test the current," Bass explains.

The chair is oak, with leather restraint straps for both arms and legs. When it was moved from the former execution site in Richmond, the Code of Virginia had to be changed because the legal wording stated that all executions in Virginia had to take place in the capital city.

Directly above the chair, on the back wall, hangs a clock. The time is important tonight. The Code implies that the execution must take place before midnight. To the right of the clock, is the current box. A yellow light glows. On the wall to my right, is the infamous red telephone, shoulder high, with a direct line to the governor's office.

The actual executioner is inside a smaller, hidden booth to my left, behind a one-way mirror-window. With a thumb, 1, 825 volts will surge through Fitzgerald's body, in the chair. The initial surge will last for 30-seconds, then cut back to 60-seconds. And automatically shut off for five seconds, then a second 90-second surge will go through his body. Two controls are used. Then we'll wait.

We'll wait for 31/2 minutes, to allow the system to recharge for another surge if needed. 10: 49 pm. They're late bringing in the condemned.

The execution chamber has a few corrections officers standing about. More will come in with Fitzgerald. All are volunteers and receive no extra pay or incentive for the duty. This is just another workday for each one of them.

We are told Fitzgerald had no last statement and that he asked for pizza as his last meal. It's a myth, in Virginia, that the condemned may choose any last meal so desired. At one time, wardens did send out for a reasonable last meal. Now, only items on the regular daily prison menu are available.

Fitzgerald, with no last statement and remaining quiet throughout the weeks leading up to this night, did ask The Richmond Times-Dispatch to publish an open letter to his son, Eddie, Jr.: "... Although it might not seem like it at [the] time. But I've always loved you and Susan [daughter] without fail. Now its time to use my love and believe that all has not ended. Love is everlasting. ... Dad."

The door to my right, outside the witness booth, opens. A group of men moves quickly into the death chamber. It takes me a moment to locate Fitzgerald, surrounded by the "death squad." The entourage includes prison officers, the prison chaplain, and a Catholic priest. Earlier, in a solitary cell, his final companions included two lawyers and a death penalty opponent. As we walked the jeering gaunlet line, coming into "Hellville," I noticed the last three visitors leaving "L" Building (real label for "Hellville"), one carrying a box, possibly Fitzgerald's personal effects.

Before Fitzgerald was transported to Greensville, he spent all of the '80s on Death Row, at the Mecklenburg Correctional Facility. I've noticed today that the word "prison" is rarely used anymore. Mecklenburg is a 45-minute drive from Greensville, at Jarratt.

The condemned on Death Row are housed in single cells. The facility was planned simply to house the convicted until execution, not to rehabilitate. The men are locked in their individual cells for 19 hours of each day. They are allowed one hour in the morning, one at noon and three hours in the evening to exercise and associate with the eleven other men in their respective cell blocks only. All wear blue prison jumpsuits. When one leaves for the final trip, his comrades will honor the execution day and night with silence. Tonight, there is silence here at Greensville and Mecklenburg, except for the brief time we, the witnesses, walked from the van to "Hellville."

While on Death Row, at Mecklenburg, a small Lynchburg church group writes and distributes a newsletter for the men: Voices from the Inside, The men like it.

Fitzgerald is smaller than I thought, once I deduce which one in the cluster he is. Maybe I figured a murderer has to be a hulk.

He seems composed. His head is shaven. A mustache remains. Tattoos are clearly visible on his arms, one leg I can see exposed and his scalp. There's a spider web tattoo across his knee and the outline of a woman stretching down his leg from the knee, to his flip-flops.

The officers move quickly to position him in the chair, slipping the leather straps over his arms and legs securely. Wearing jeans, his right pant leg has been cut off above the knee to attach one of two electrical connectors. This has to be a Charles Bronson movie.

Not once has he glanced our way, toward the witness booth. His eyes and ears are intent upon listening to every word and gesture from the chaplain and priest. Since the intercom is on, we can hear most of what is being shared. Instructions from the officers and encouragements of life-over-death from the clergy seem a little contradictory to me.

The priest gives the last rites. And leans in to share a private thought. Fitzgerald smiles at that nervously. As the two life-over-death companions move to the side, the "death squad" moves closer to place a brown leather mask over the condemned's face, strapping it snuggly to the back of the chair. With this mask, and the other straps, Fitzgerald cannot move, save for his index and middle fingers. A metal skullcap, reminiscent of a World War I helmet, is now being lowered over the shaven tattooed head and connected to the instrument of death, electricity.

When the chaplain says goodbye, the condemned wiggles those four fingers in response. Waiting for that first surge, I can see him forming a "V" sign with his fingers.

On Death Row for more than 11 years, Fitzgerald was convicted of the gruesome torture-killing of Patricia D. Cubbage, 22, in the Chesterfield County Circuit Court in 1981. He had stabbed her with a knife and hacked her body with a machete more than 180 times, from head to toe. She bled to death in the woods, after he "played" tic tac toe on her back, with the weapons.

In court, he admitted to having consumed more than 12 beers, having smoked marijuana, and having taken LSD and a tranquilizer. The victim was described, in court, as a drug dealer, police informer, and a prostitute.

Fitzgerald has never claimed to be innocent, asking his lawyers all along not to pursue court appeals to delay. He declined interviews, unlike Roger K. Coleman. Coleman made the cover of Time back in the spring, before time ran out.

The term "vileness" plays an important part in Virginia as to whether the convicted receives the capital punishment sentence. Fitzgerald's mutilation of his victim's body was described as vile. On September 15th, Willie L. Jones is scheduled to die in this same chair. The 1983 murders of an elderly Charles City County couple were considered by the court as vile: the 78-year-old-woman was set afire with kerosene while still alive, bound and gagged in a closet. Her 70-year-old husband was shot point-blank in the head. After robbing them of more than $30, 000, Jones set fire to the house to hide the crime. Vile. ...

"Hellville" is scheduled for four more executions within the next three months. Since 1980, an average of one a year has taken place. Now, one a month. The last one, Roger Coleman, was on May 20th, with much fanfare, for raping and murdering his sister-in-law, in Grundy.

The next execution is August 20th. Mickey W. Davidson has admitted to murdering his wife and two stepdaughters in Smyth County, using a crowbar. Vile. ...

Later, in October, two condemned will visit this death chamber.

As of tonight, 49 condemned men are on Death Row. The Corrections Facility at Mecklenburg, to the west of here, will send them here 15 days before the court dictates the execution time.

It's time. Past 11 o'clock. The condemned does, I remember, have until the end of this hour to...die.

Both chaplain and priest step far to the right. Officers move to the far left. Fitzgerald's fingers continue to wiggle the "V" sign. I see him at this moment take a last gulp. His hands now clench and ball into a fist, anticipating the first surge.

It hits.

His body jolts upward, straining against the straps, and remains in that tightened position for 90-seconds. We were told in the earlier briefing that the first surge was enough to render him brain dead. With the brief pause in power, the body relaxes, fists still tightly clenched. Somewhere in that first surge of electricity, I heard a moan over the intercom. Sparks fly off from the leg clamps, and puffs of smoke are now beginning to waft up from the knee and skullcap, to the ceiling.

The second surge of power is now moving into the body, forcing it to jolt upward, constrained by the straps. I'm sure he died with that first surge. When this second surge is over, we'll wait.

No one speaks. No one moves. The wait is long...31/2 minutes.

The wait, and silence, are broken when a doctor walks into the death chamber from my left, pulls back a portion of the body's shirt and places his stethoscope on the body's chest. All eyes and ears are on that stethoscope. At any moment I half-expect to hear a director yell "CUT!" or that this man is "FRIED!" "This man has expired." 11: 12 pm. Thursday, July 23rd.

Our Virginia Code states, "Electrocute until dead." Dead means no heartbeat. A curtain in front of us is drawn.

My job, as witness tonight, is complete. Single file, we leave the witness booth. My smelling senses explode with the first whiff of an electrical fire odor, then, the stench of burnt human flesh. It takes no more than ten seconds to reach the door at the end of the hall, but I refuse to inhale during that time.

As the outside door is opened, bringing in the relief of fresh, humid night air, my mind is swiftly brought back to reality with the muffled shouts and obscenities once again hurled at us from the distant cells. This time my mind doesn't single out specific phrases or expletives. I realize they're not directed at me, but to the witness for the condemned I represent, from a comrade in waiting.

Back inside, the body is removed from the chair. We aren't privy to that part. The body is placed on a table in another room. Sandbags are stacked across the body to cool it down.

In the van, I suddenly realize that I had not gotten sick, as expected.

Outside the last gate of the place no longer called a prison, I can see, through our van's windows, two small groups who have assembled in the official protest fields since we passed earlier. One group has lighted candles, flickering in the humid, late-night air, and they appear to be singing. The other group is waving placards of approval for what we, the witnesses for the condemned, have officially viewed this night. The two groups should have been separated by the road. However, the lack of controversy surrounding Fitzgerald's execution appears to have brought the two small, diametrically opposed groups together for a least one summer night.

After being dropped off at the State Police building, I drive back to the motel. The drive is short. I'm exhausted. It's nearly midnight when I open the motel door. I need very much to sleep. Those immigration studies for the summer need my attention, too.

In bed, eyes closed, lights off, my mind starts to embroil its intricate network of conscience with pangs of empathy for the victims, then for the condemned. My thoughts even have trouble distinguishing whether tonight was another Bronson movie or reality. The confusing debate seems to be out of control in my mind. My thoughts are also out of control as to whether I should have volunteered to be an official witness for the condemned in the first place.

It's quite clear that the vast majority of Americans support the laws prescribing capital punishment. And it's quite clear tonight that the majority of witnesses for the condemned wanted Fitzgerald electrocuted. It's also a fact that the strong, vocal minority has lobbied for years to overthrow capital punishment through the courts with every conceivable due process argument possible, knowing that the task would be futile via the legislative process. But the Supreme Court has held its ground, through majority opinions, and has not used its ultimate power to prevail over a state's law.

The only clear argument left, to me, centers around one of morality—a difference between an individual and his or her state.

Executing a life, by the state, is no better than an individual taking a life. I also agonize over what is moral for the victims and their families and friends left with life, memories, and feelings. Surely, as an individual, retribution seems only fitting when the victim is a son, wife, daughter, or parent, but the government we have created must be morally above any one person's actions, especially retribution. The cries for vindication are as morally alarming as the despicable crimes comitted by the condemned.

Enough. My mind has had enough for one day... and night. Come sweet elixir of sleep.


943 F.2d 463

Edward B. FITZGERALD, Petitioner-Appellant,
Charles E. THOMPSON, Warden, Respondent-Appellee.

No. 90-4009.

United States Court of Appeals,
Fourth Circuit.

Argued May 9, 1991.
Decided Aug. 26, 1991.

Before RUSSELL and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.


WILKINSON, Circuit Judge:

Appellant Edward B. Fitzgerald seeks habeas corpus relief under 28 U.S.C. § 2254 from his conviction and sentencing for capital murder, armed robbery, rape, abduction with intent to defile, and burglary. Finding no error in the district court's decision to dismiss Fitzgerald's petition, we affirm its judgment.


On the night of November 13, 1980, Fitzgerald and Daniel Johnson broke into a home where their acquaintance Patricia Cubbage was staying. Earlier that night, Fitzgerald had complained that Cubbage had "ripped him off." Once in the home, Fitzgerald slashed Cubbage with his machete and raped her. When Cubbage pleaded to be taken to a hospital, Fitzgerald denied her request by stating that he "had came there to do a job and he was going to finish it." Fitzgerald had Johnson help Cubbage get dressed. Fitzgerald took Cubbage's purse and the three of them left the house in Johnson's car.

Fitzgerald instructed Johnson to turn off a main road onto a dirt road. They forced Cubbage into some nearby woods. There Fitzgerald compelled Cubbage to perform oral sodomy on him. He then repeatedly stabbed Cubbage with the machete and a knife. Fitzgerald at one point inserted the machete into Cubbage's vagina and rectum. He then kicked Cubbage several times and left her in the woods where she bled to death from the approximately 184 stab wounds she had received.

Fitzgerald was eventually apprehended and tried in Chesterfield County, Virginia. The principal witnesses against him were his co-defendant Daniel Johnson, and Wilbur Caviness to whom Fitzgerald had confessed while the two were imprisoned in the Chesterfield County jail pending Fitzgerald's trial. Caviness testified at trial that Fitzgerald stated that he killed Cubbage because she had "snitched on him and snitched on a friend of his also."

Fitzgerald presented a hybrid defense: attempting to shift the blame to his co-defendant and also attempting to show that he could not have formed the requisite intent because of the alcohol and drugs he had ingested during the evening of the killing. Fitzgerald was convicted of capital murder, armed robbery, rape, abduction with intent to defile, and burglary. The jury recommended that Fitzgerald be sentenced to death for the capital offense and to life imprisonment for the other offenses. The court followed these recommendations.

Fitzgerald took a direct appeal to the Virginia Supreme Court which affirmed his convictions and sentences. Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982). The United States Supreme Court denied Fitzgerald's petition for certiorari.

Fitzgerald next began state collateral proceedings which proved unsuccessful. See Fitzgerald v. Bass, 4 Va.App. 371, 358 S.E.2d 576 (1987); Fitzgerald v. Bass, 6 Va.App. 38, 366 S.E.2d 615 (1988) (en banc). At the end of those proceedings, the Virginia Supreme Court refused his petition for appeal. In response to a motion by the Commonwealth, the Virginia Supreme Court elaborated on its earlier ruling by stating that issues related to Caviness's testimony and to a challenged jury instruction on intent were procedurally barred. A petition for a writ of certiorari was denied by the United States Supreme Court.

Fitzgerald then began federal habeas proceedings. The district court dismissed his petition for a writ of habeas corpus and this appeal followed.


Fitzgerald advances various challenges to the validity of his conviction and sentencing. Three of these challenges pertain to the guilt phase of the trial and we shall address them in this section. The remaining two claims pertain to the penalty phase of the trial and they will be discussed in section III.


Fitzgerald contends that the Commonwealth's handling of the testimony of Wilbur Caviness violated his due process rights. He objects specifically to the Commonwealth's failure prior to trial to disclose relevant background information on Caviness such as his criminal history. Prior to trial, Fitzgerald's counsel sought from the Commonwealth any information affecting the credibility of the Commonwealth's anticipated witnesses. The Commonwealth, in essence, responded that it would not turn over impeachment evidence because that was not a proper subject of discovery. Although this position was incorrect as a matter of law, Fitzgerald did not register any objection to the Commonwealth's position with the trial court nor did Fitzgerald challenge the Commonwealth's position on direct appeal. Fitzgerald v. Bass, 366 S.E.2d at 620-21.

Fitzgerald raised the claim for the first time on collateral review at which time all three Virginia courts reviewing the claim rejected it as procedurally barred. Given the adequate and independent nature of the procedural default rule relied on by the state courts and the failure of Fitzgerald to demonstrate cause for the default, we are barred from addressing Fitzgerald's first claim relating to Caviness. Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Indeed, to do so would be to disregard the "concerns of comity and federalism" that underlie the independent and adequate state ground doctrine. Id. at ----, 111 S.Ct. at 2554.

Fitzgerald's second contention with regard to Caviness is that the Commonwealth failed to correct inaccurate testimony given by him at trial. Fitzgerald contends that some ambiguity exists over whether the Virginia Supreme Court intended for its default ruling to reach both aspects of the Caviness claim or whether the ruling was intended only as a determination on the claim relating to the nondisclosure of background information.

Fitzgerald argues that the ambiguity is illustrated by the fact that the Virginia Court of Appeals addressed the inaccurate testimony claim on the merits and that the Commonwealth focused its procedural default arguments to the Virginia Supreme Court almost exclusively on the failure to disclose issue. He notes also that the federal district court did not consider the claim to be defaulted. We shall give Fitzgerald the benefit of the doubt on this point, see Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), and proceed to the merits of his claim.

Essentially, Fitzgerald contends that Caviness testified falsely in three ways. First, Caviness told the jury that he had only one felony conviction when in reality he had two or three prior felony convictions. Second, Caviness told the jury that no charges were pending against him though in fact two charges were pending against him in another county. Finally, Caviness denied that he had been offered anything for his testimony. Fitzgerald contends, however, that this was false because Caviness received payments for testifying at the trial and because Caviness had been a paid informant for law enforcement agencies in other cases.

We acknowledge that there were some factual errors in Caviness's testimony as it pertained to his past record. The state habeas courts concluded, however, that Caviness did not commit perjury. The errors in Caviness's testimony stemmed not from any intentional effort to deceive, but rather from mistaken beliefs about the legal classification of his prior convictions and the status of his pending charges.

The Virginia Court of Appeals also agreed with the trial habeas court that the Commonwealth lacked actual knowledge of any inaccuracies in Caviness's testimony, though it charged the state with the not unreasonable burden of discovering the "criminal record of its witnesses." Fitzgerald v. Bass, 366 S.E.2d at 621-23. The Court of Appeals then canvassed the record for "any reasonable likelihood that the false testimony could have affected the judgment of the jury," see United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976), and it found none. 366 S.E.2d at 624-25.

We agree with this conclusion. For purposes of impeachment, the difference between one felony conviction and two or three convictions is not critical. In either case, the jury would be on notice that Caviness was a convicted felon. The jury was also aware that Caviness had been convicted of at least one misdemeanor involving moral turpitude. Although Caviness denied that charges were pending against him at the time of trial, he acknowledged that charges were pending against him at the time he was incarcerated in the Chesterfield County jail with Fitzgerald. Indeed, it was due to his incarceration that he learned of the incriminating information. Caviness's testimony that he did not receive anything in return for his testimony is incorrect only in the sense that he was reimbursed for expenses incurred in coming to court to testify.

As the state habeas court found, these reimbursements were "minor" and "customary." By the Commonwealth's accounting, these payments amounted to less than $100. Caviness did not receive any quid pro quo in return for his testimony nor was he planted in the jail in an attempt to elicit a confession from Fitzgerald. That Caviness may have worked as an informant in other jurisdictions in cases unrelated to Fitzgerald's does not undermine the accuracy of his denial of receiving benefits in return for his testimony.

In essence, the correction of those inaccuracies that were in Caviness's testimony would merely have provided cumulative impeachment evidence. Defense counsel had every opportunity to bring Caviness's credibility into question. In fact, Fitzgerald's counsel focused the jury's attention on Caviness's credibility in closing argument when he stated that Caviness was a "convicted felon, a person involved in crimes of moral turpitude and a multiple offender--a jailbird and a drone."

Two other considerations bear on the materiality of Caviness's testimony. The first is that Caviness was not the central prosecution witness; rather Fitzgerald's co-defendant Daniel Johnson was the chief witness. Caviness's testimony essentially corroborated that of Johnson. In addition, the credibility of Caviness's testimony was bolstered by the fact that it revealed aspects of the crime that had not been public knowledge. "There was a strong inference, therefore, that Caviness' testimony regarding these events came from his conversation with Fitzgerald." Fitzgerald v. Bass, 366 S.E.2d at 625. In these circumstances, it seems clear that what inaccuracies there were in Caviness's testimony did not affect the jury verdict.


Fitzgerald next contends that he received ineffective assistance of counsel because his trial attorneys failed to object to this jury instruction: "Each person is presumed to intend the natural and probable consequences of his acts." According to Fitzgerald, his attorneys should have objected to this instruction because it violated the principles of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), by creating a conclusive or a burden shifting presumption on intent.

Fitzgerald raised the Sandstrom issue for the first time on state habeas. The Virginia Supreme Court ruled Fitzgerald to be in procedural default on this claim. Fitzgerald unquestionably has defaulted on a challenge to the underlying validity of the jury instruction by his attorneys' failure to object to it at trial. See Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Fitzgerald argues, however, that no adequate state ground exists for barring his ineffective assistance claim because he substantially complied with state procedural rules and invoked the substance of that claim in each state collateral proceeding. Fitzgerald notes that his petition to the Virginia Supreme Court focused on the prejudice associated with the challenged instruction and that prejudice was at the heart of his ineffective assistance claim because the trial habeas court had already ruled his attorneys' performance deficient. While we think the presentation of his claim no model of clarity, the record also leaves us with some question about why or how the procedural default was found. We shall thus address the ineffective assistance claim on the merits so as to leave no doubt that the state judgment of conviction was constitutionally sound.

To prevail on his ineffective assistance claim, Fitzgerald must demonstrate that actual prejudice flowed from his attorney's failure to object to the instruction. See, e.g., Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998, 89 L.Ed.2d 123 (1986). Fitzgerald's burden on this point is a heavy one. He must show a "reasonable probability" that but for his attorney's failure to object to the instruction "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

Fitzgerald insists that the mandatory presumption created by the jury instruction "deprived [him] of his substantial defense that drugs and alcohol vitiated his intent to premeditate." The Commonwealth responds that Fitzgerald was not prejudiced by the jury instruction because there was overwhelming evidence that he was capable of forming the requisite intent.

We agree with the Commonwealth. The actions taken by Fitzgerald belie any claim that his ability to form the requisite intent was impaired. Evidence of intent and Fitzgerald's ability to form it can be gleaned from comments he made about his victim prior to the murder. For example, Fitzgerald complained that Cubbage had "ripped him off." Fitzgerald also stated to Cubbage that "he had came there to do a job and he was going to finish it."

Further evidence that Fitzgerald was not impaired by drugs and alcohol can be demonstrated by actions that required thought and physical dexterity. For instance, he had the presence of mind to reduce the chance that he would be apprehended for his offense: he directed Johnson to drive to an isolated area where he would complete his crimes, he and Johnson covered Cubbage's body with leaves, and he later laundered his blood stained clothes and those of his co-defendant.

While stabbing Cubbage, Fitzgerald carved linear slashes resembling tic-tac-toe designs on her body and after the crimes were completed, Fitzgerald put an intricate tatoo on Johnson's arm. Based on this evidence we do not believe that Fitzgerald was prejudiced by his lawyers' failure to object to the jury instruction. There is no doubt that he possessed the ability to form the intent necessary for capital murder and there is no doubt that he intended to do precisely what he did. See Waye v. Townley, 871 F.2d 18 (4th Cir.1989).

In the face of this considerable body of evidence, Fitzgerald attempts to draw our attention to cases that have applied harmless error analysis to Sandstrom claims and concluded that the instruction was not harmless. These cases are inapposite. If Fitzgerald had raised his challenge to the instruction in a timely manner, then his substantive claim would be assessed on habeas corpus under a harmless error standard. See Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

However, allowing Fitzgerald to rely upon cases using harmless error analysis would effectively treat Fitzgerald as if he had not defaulted on his substantive challenge to the jury instruction. Attempts by petitioners to transform claims whose underlying merits have been defaulted into questions of ineffective assistance of counsel require analysis under the more stringent Strickland standard. Even if harmless error analysis were applicable here, we note that courts have concluded that an instruction violative of Sandstrom was harmless beyond a reasonable doubt when considered in the context of the whole case. Burger v. Kemp, 483 U.S. 776, 782 n. 5, 107 S.Ct. 3114, 3119 n. 5, 97 L.Ed.2d 638 (1987); Tweety v. Mitchell, 682 F.2d 461, 465 (4th Cir.1982).

Viewing the instruction on intent in the context of the entire case, however, serves to confirm the fact that Fitzgerald suffered neither harm nor prejudice from his attorneys' failure to object. It is important, for example, to consider the challenged instruction in light of other jury instructions. See Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). Instruction no. 26 prohibited a conviction for capital murder or for murder in the first degree if the jury found Fitzgerald "so greatly intoxicated by the voluntary use of alcohol and/or drugs that he was incapable of deliberating or premeditating...." This specific instruction on Fitzgerald's intoxication defense makes it unlikely that the jury would have convicted him of capital murder if it had believed he was intoxicated.

The jury instructions also stated that "intent is a purpose formed in a person's mind which may be shown by the circumstances surrounding the offense." The jury charge also contained additional references to the defendant's presumption of innocence and the Commonwealth's burden to prove beyond a reasonable doubt the elements of each offense. Given the fairness of the instructions when viewed in their entirety and given the overwhelming evidence that Fitzgerald acted with the requisite intent, we hold that Fitzgerald has failed to show that he was prejudiced by the commission of attorney error.


Fitzgerald raises two other claims of ineffective assistance of counsel related to jury instructions. First, Fitzgerald's counsel did not seek an instruction that every reasonable doubt as to the grade of an offense shall be resolved in favor of the defendant. Second, Fitzgerald argues that his counsel erred when he failed to seek an instruction that charged that every unlawful homicide is presumed to be murder in the second degree. Fitzgerald contends that no tactical explanation for these decisions exists and that he was prejudiced by them because his defense was so grounded on his inability to premeditate.

We believe, on the contrary, that Fitzgerald's trial counsel made reasonable tactical decisions that should not now be second-guessed on collateral review. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As trial counsel testified at the state habeas hearing, the omitted instructions were primarily cumulative of other instructions that were given to the jury. These other instructions properly informed the jury of the range of possible verdicts from capital murder to acquittal and admonished it as to the Commonwealth's burden of proof. Thus, this is not a case of the jury being misinformed by the absence of the challenged instructions. The decision not to seek these additional instructions was also reasonable given the theory of the case advanced by Fitzgerald at trial.

One of his defenses was that Johnson had murdered Cubbage and was now attempting to frame Fitzgerald. Fitzgerald's counsel testified that he did not seek the instruction relating to the presumption of second degree murder because he felt it would detract from the frame-up defense by increasing the chances that Fitzgerald would be convicted of some crime. In these circumstances, Fitzgerald has satisfied neither the performance nor the prejudice prong of Strickland.


Fitzgerald finally challenges two aspects of the penalty phase of the trial. He first contends that his counsel was ineffective at sentencing for failing to present available mitigating evidence. Fitzgerald also argues that the trial court impermissibly directed the jury to return a finding of aggravating circumstances. We shall briefly address each claim.


Fitzgerald argues that his counsel should have called his probation officer to testify on his behalf. According to Fitzgerald, his probation officer would have informed the jury of Fitzgerald's fine progress while on probation. Instead, the jury learned only that Fitzgerald was on probation for the shooting of his wife. Fitzgerald also contends that his counsel should have secured psychological testimony similar to that offered in his behalf at the state habeas hearing. At the hearing, Dr. Brad Fisher testified that life imprisonment, rather than the death sentence, would make penological sense in Fitzgerald's case.

Petitioner's attempts to charge counsel with the adverse outcome in his case ignore the difficulties under which his lawyers labored. Cf. Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). The state habeas court found that Fitzgerald's counsel investigated possible sources of mitigating evidence. Mitigation evidence was presented, for example, from Fitzgerald's brother, mother, and co-worker.

In some cases, however, witnesses chose not to testify for Fitzgerald. Despite his counsel's recommendation, Fitzgerald himself chose not to testify at the penalty phase. This was particularly damaging because trial counsel believed that where such heinous crimes were involved, Fitzgerald's only real chance to avoid the death penalty would be by his own plea for mercy.

With respect to other evidence that Fitzgerald claims should have been presented, trial counsel had interviewed three psychiatrists prior to trial and had determined that Dr. Lordi would give the best testimony. Because his testimony was not especially effective during the guilt stage, however, counsel decided to introduce his report at the penalty stage rather than have him testify.

The state habeas court found that the probation officer's testimony would not have been especially helpful given that the probation officer supervised sixty other individuals and had seen Fitzgerald less frequently in the months preceding the murder. Even if the probation officer and Dr. Fisher had been called to testify, their testimony at most might have diminished the impression that Fitzgerald would be dangerous in the future. It was for the vileness of his crime that Fitzgerald received a capital sentence, however. Virginia Code Ann. § 19.2-264.4(c) defines vileness as "torture, depravity of mind or aggravated battery to the victim." It seems farfetched to lay at counsel's doorstep the failure to convince the jury that Fitzgerald's conduct was not at the core of the statute's contemplation.


Fitzgerald's last challenge pertains to the rendering of the jury's verdict. Under Virginia law, a jury can impose a death sentence based either on the vileness of a crime or the future dangerousness of a defendant or on both factors. Va.Code Ann. § 19.2-264.2 (1990). The trial court in this case initially refused to accept the jury's verdict form because it was unclear whether the jury had found both aggravating circumstances to be present or only one.

The confusion was created because the jury had not struck out the "and/or" provision pertaining to the aggravating circumstances on the jury form. The judge asked the foreman whether the jury intended to select "and", but the foreman responded that "or" was the jury's choice. The judge explained that the jury would then have to select which of the two factors it found. After the jury redeliberated, it again chose "or" without indicating a factor. The judge reinstructed the jury which after again deliberating chose vileness.

Fitzgerald contends that the judge's statement to the jury that it must elect between the aggravating circumstances ruled out the possibility that the jury would select life imprisonment if it could not reach a unanimous decision on which aggravating factor was present. In effect, says Fitzgerald, the judge directed a verdict.

We find that Fitzgerald has defaulted on this claim because the state habeas trial court dismissed the claim as procedurally defaulted and it was not argued to the Virginia Supreme Court. Even if the claim were not defaulted, it would have little merit because the jury obviously chose death as the penalty and it simply needed some guidance on expressing which factor it found to justify the penalty. A poll of the jurors indicated their unanimity on the vileness factor.


Both the trial and the subsequent review of that trial in the state system were in accordance with law. We see no reason to disturb the verdict. For the foregoing reasons, the judgment of the district court dismissing Fitzgerald's petition for habeas corpus is




home last updates contact