Fitzgerald v. Bass

• Decision Date: 15 March 1988
• Docket Number: No. 0511-85,0511-85
• Citation: 366 S.E.2d 615,6 Va.App. 38
• Parties: Edward B. FITZGERALD v. Gary BASS, Warden, Mecklenburg Correctional Center. Record
• Court: Virginia Court of Appeals

Page 615

366 S.E.2d 615

6 Va.App. 38

Edward B. FITZGERALD v. Gary BASS, Warden, Mecklenburg Correctional Center.

Record No. 0511-85.

Court of Appeals of Virginia.

March 15, 1988.

Peter J. Murtha, Bradley S. Stetler, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW, BENTON, COLE, COLEMAN, DUFF, HODGES, KEENAN and MOON, JJ.

OPINION ON REHEARING EN BANC

KEENAN, Judge.

Edward Fitzgerald appeals from the denial of his petition for a writ of habeas corpus. The issues we address are: (1) whether Fitzgerald was improperly denied an evidentiary hearing on certain claims; (2) whether the testimony of prosecution witness, Wilbur Caviness, deprived Fitzgerald of due process; and, (3) whether Fitzgerald was denied effective assistance of counsel. ¹ We dismiss that part of Fitzgerald's appeal which deals with his capital murder conviction because under our jurisdictional statutes, as interpreted in Peterson v. Bass, 2 Va.App. 314, 318, 343 S.E.2d 475, 478, aff'd en banc, 2 Va.App. 314, 349 S.E.2d 409 (1986), we lack jurisdiction to hear habeas corpus appeals arising from convictions where the death penalty has been imposed. With respect to the non-capital convictions, we find no error in the habeas court's denial of the writ.

I. FACTS

The facts of this case are detailed in the Supreme Court's opinion affirming Fitzgerald's convictions on direct review. Fitzgerald v. Commonwealth, 223 Va. 615, 621-26, 292 S.E.2d 798, 801-04 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469 (1983). Only a brief recitation is necessary here. Primarily through the testimony of a codefendant, Daniel Johnson, and a fellow inmate, Wilbur Caviness, the Commonwealth established that Fitzgerald raped, abducted, robbed, and murdered Patricia Cubbage.

The evening these events took place began with Cubbage, Johnson, Fitzgerald and others drinking beer and smoking marijuana at Fitzgerald's apartment. Cubbage eventually left the group and went home. Johnson and Fitzgerald went to the home of David Bradley, who was a friend of Fitzgerald's. Johnson testified that upon leaving the Bradley home, Fitzgerald suggested that they go to the home of another friend for the purpose of breaking in and stealing drugs. Cubbage was staying in this home, and when Fitzgerald broke in, he ran upstairs to her bedroom. There, Fitzgerald raped and beat Cubbage. He then forced her from the house and into the car, taking her purse in the process.

Johnson and Fitzgerald drove Cubbage to a remote area where she was taken from the car into some woods. After forcing Cubbage to engage in oral sodomy, Fitzgerald killed her by repeatedly striking her with a machete. He later told Wilbur Caviness, a fellow inmate in the Chesterfield County Jail, that he raped and murdered Cubbage because she had "snitched" on him. Detective William Shuman of the Richmond Bureau of Police testified that Cubbage had worked as an informant for him and that another word for informant was "snitch."

The jury convicted Fitzgerald of capital murder, armed robbery, rape, abduction with intent to defile, and burglary. Upon finding that Fitzgerald's conduct met the vileness standard of Code § 19.2-264.4(C), the jury recommended the death penalty for the capital murder conviction. For each of the remaining convictions, the jury recommended life imprisonment. The trial court imposed the jury sentences and the Supreme Court of Virginia affirmed the convictions. Fitzgerald, 223 Va. at 640, 292 S.E.2d at 813.

Fitzgerald then filed a petition for a writ of habeas corpus in the circuit court. An amended petition and a bill of particulars were also filed. After hearing argument, but without taking evidence, the court dismissed the majority of Fitzgerald's claims on the grounds that they had previously been determined on direct appeal, or had been waived by failure to raise them on appeal. Later, the court denied Fitzgerald's motion for an evidentiary hearing on his allegation that codefendant, Daniel Johnson, had failed to disclose to the jury the full extent of his knowledge of a plea agreement being negotiated on his behalf with the Commonwealth.

A plenary hearing was held on June 21-22, 1984, to consider the remainder of Fitzgerald's claims. On February 26, 1985, the court issued a comprehensive opinion stating its findings of fact and conclusions of law. The court found that Fitzgerald had not been denied due process or effective assistance of counsel. Accordingly, the petition was denied. It is from this order that Fitzgerald appeals.

II. DENIAL OF EVIDENTIARY HEARING

Daniel Johnson was a codefendant in these cases. He testified that he had discussed the charges with his attorney, Richard Ryder, and that Ryder advised him to testify truthfully. Johnson further testified that he had not been promised anything in return for his testimony, and that Ryder had not discussed with him what might be expected in return for his testimony.

On cross-examination, the following colloquy took place:

Q. You know there is no chance of you going to the electric chair if you testify in this case, don't you?

A. No, sir, I don't know that.

Q. You mean to tell the jury that you are coming in here today and confessing to your implication in the crime and you don't have any idea how your case is going to be disposed of?

A. No, sir, I don't have any idea how it will be disposed of.

Q. Did your attorney advise you to testify in here today?

A. Yes, sir, he did.

The next day the prosecutor called Ryder as a witness. Prior to doing so, the prosecutor informed the court, out of the presence of the jury, that discussions had taken place with Ryder regarding Johnson's case. The prosecutor told the court that the jury should be informed of these discussions so that there would be no misunderstanding of Johnson's testimony. Ryder then testified before the jury that he had discussed the possible disposition of Johnson's case with the Commonwealth, but that he had not talked to Johnson about it. On cross-examination, Ryder stated: "[T]he Commonwealth has agreed if my client would come in court and testify to the truth that the Commonwealth Attorney would seek, at worst, to convict my client of first degree murder and would recommend to the court that the maximum sentence my client be subjected to is 40 years in the penitentiary."

Fitzgerald alleged in his habeas petition that Johnson and Ryder misstated to the jury the extent of Johnson's knowledge of the plea negotiations. The court refused to conduct an evidentiary hearing on this allegation, dismissing it on the record. Code § 8.01-654(B)(4). In so doing, the court agreed with the Commonwealth that this allegation failed to set forth sufficient facts to justify an evidentiary hearing. The rule in Virginia is that habeas corpus petitions must allege sufficient facts which, if true, would support the conclusion of law advanced. As the Supreme Court stated in Penn v. Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948), "mere conclusions or opinions of the pleader will not suffice to make out a case."

Here, the petition essentially alleged that Johnson and his attorney committed perjury and that the Commonwealth took advantage of this perjury by failing to correct it. Fitzgerald argues that under Giglio v. United States, 405 U.S. 150, 155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), he was entitled to have the jury know what agreements or understandings existed between Johnson and the Commonwealth. He further argues that Johnson and his attorney failed to disclose the full extent of Johnson's understanding with the Commonwealth, and that this failure amounted to an improper restriction on his right of cross-examination. Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir.1983).

While we agree with the principles of law relied upon by Fitzgerald, we do not agree that the habeas petition, as supplemented, set forth sufficient facts to justify an evidentiary hearing on his claim. Initially, the petition stated nothing more than Fitzgerald's conclusions, nor were any supporting affidavits filed. For example, in his motion for a hearing, Fitzgerald stated that he was "in possession of evidence which will establish that Mr. Johnson testified untruthfully about his knowledge of the plea agreement ... [and] he (Fitzgerald) came into possession of this evidence through an interview he had with a witness." The witness was not identified, nor was a proffer of the witness's testimony made to the court.

Later, Fitzgerald filed the following "statement of facts" allegedly establishing the substance of this claim:

Daniel L. Johnson, through his attorney, knew that a plea agreement was being negotiated on his behalf. He knew that the discussions between his attorney and the Commonwealth involved his cooperation against petitioner in exchange for the imposition of a 40 year sentence by the Court. Mr. Johnson discussed with his attorney the possibility of having 20 years of the 40 years suspended. Mr. Johnson was aware of these discussions and of his possible 40 year sentence or less prior to his testimony against petitioner.

Finally, after the court denied the request for an evidentiary hearing, Fitzgerald filed a motion to reconsider in which he revealed for the first time that his claim was based upon information given to his attorney by Daniel Johnson at the St. Bride's Correctional Center. The court denied the motion to reconsider.

In none of his various allegations pertaining to this claim did Fitzgerald contend that the Commonwealth was aware of Johnson's alleged perjury. Further, he never alleged that the court improperly restricted cross-examination on this subject. Without such allegations, Fitzgerald failed to set out a prima facie violation of the rule stated in either Giglio or Hoover.

In Giglio, the Supreme Court stated that "deliberate deception of a...