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,
v.
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.
OPINION
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.
I.
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.
II.
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.
A.
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.
B.
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.
C.
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.
III.
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.
A.
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.
B.
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.
IV.
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