Fitzgerald v. Thompson

• Decision Date: 26 August 1991
• Docket Number: No. 90-4009,90-4009
• Citation: 943 F.2d 463
• Parties: Edward B. FITZGERALD, Petitioner-Appellant, v. Charles E. THOMPSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 463

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.

Bradley Specht Stetler, Office of Public Defender, Burlington, Vt., argued (Peter J. Murtha, Washington, D.C., on brief), for petitioner-appellant.

Robert H. Anderson, III, Asst. Atty. Gen., Office of the Atty. Gen., Richmond, Va., argued (Mary Sue Terry, Atty. Gen. of Virginia, Office of the Atty. Gen., on brief), for respondent-appellee.

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...