Fitzgerald v. Com.

Decision Date18 June 1982
Docket NumberNo. 811669,811669
PartiesEdward Benton FITZGERALD v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Frank N. Cowan, Richmond (W. Joseph Owen, III, Deborah S. O'Toole, Cowan, Owen & Nance, Richmond, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

A jury found Edward Benton Fitzgerald guilty of the capital murder of Patricia Cubbage; 1 armed robbery; rape; abduction with intent to defile; and burglary. For each of the offenses other than capital murder, the jury fixed Fitzgerald's punishment at confinement in the penitentiary for life. In the second part of the bifurcated proceeding required by Code §§ 19.2-264.3 and -264.4 in the capital murder case, the same jury fixed Fitzgerald's sentence at death. After considering the probation officer's report filed pursuant to Code § 19.2-264.5, the trial court imposed the death sentence by order entered September 4, 1981, and on the same date, entered judgment on the other jury verdicts.

Fitzgerald seeks a reversal of all his convictions and remand for a new trial. Having consolidated the automatic review of his death sentence with his appeal from his convictions, we have given them priority on our docket.

Daniel L. Johnson, the codefendant charged with the same offenses as Fitzgerald, related the relevant facts as the principal witness for the Commonwealth. On the afternoon of November 13, 1980, he and Fitzgerald were drinking beer at Fitzgerald's apartment when Don Henn, Patricia Cubbage, and Angelia Robinson arrived. According to Johnson, they drank beer and smoked marijuana which Cubbage had supplied.

That evening, fifteen or twenty minutes after Henn, Cubbage, and Robinson left the apartment, Fitzgerald received a telephone call from a friend who was subsequently identified as David Bradley. At Fitzgerald's request, Johnson agreed to drive him to the friend's apartment in Sandston; anticipating trouble, Fitzgerald produced a machete which Johnson strapped on himself. As they proceeded to Sandston in Johnson's car, the men consumed several pills from a baggie in Fitzgerald's possession, but Johnson could not remember what kind of pills Fitzgerald told him they were taking. They found no trouble when they arrived at Bradley's apartment. Fitzgerald and Bradley discussed a legal paper that Bradley had received; Johnson and Bradley each drank a beer.

When Fitzgerald and Johnson left Bradley and his wife about midnight, Bradley gave Fitzgerald a cellophane bag. Before driving off, Johnson returned the machete to Fitzgerald. During the drive, Fitzgerald said that there was "acid" (lysergic acid diethylamide, or LSD) in the cellophane bag; Johnson declined to take any, but Fitzgerald "took a hit of it." Subsequently, Johnson heard Fitzgerald "mumbling" that Cubbage "had ripped him off."

At Fitzgerald's suggestion, the pair decided to steal some drugs from Henn's residence. Parking nearby, they found the house locked. Fitzgerald failed to pry open a door with Johnson's lug wrench, but the men gained entrance by kicking in the door. Johnson knew of one area on the premises where drugs were kept, and he knew that Cubbage was a drug dealer. While searching in the living room, he heard Fitzgerald run up the stairs leading from the lighted hallway. A woman's voice, which Johnson recognized as Cubbage's, asked Fitzgerald why he was there. When Cubbage screamed, Johnson ran upstairs and saw Cubbage nude, on her knees on the floor, apparently stunned, with a cut over her left eye. Johnson helped her into bed and attempted to leave, but Fitzgerald pushed him against the wall, pressed the machete to his throat, and ordered him to remain.

Although Cubbage protested that she was menstruating, and Johnson saw evidence of this, Fitzgerald had sexual intercourse with her. He then struck her several times with the machete, almost cutting off her thumb when she attempted to ward off his blows. At Fitzgerald's command, Johnson helped Cubbage to dress. Cubbage twice asked Fitzgerald to take her to a hospital, but he refused, explaining after her second request that he had come there "to do a job and he was going to finish it." As the men led Cubbage from the bedroom, Fitzgerald seized her purse. They went through the kitchen, where Fitzgerald stopped long enough to break the glass in a microwave oven and take some luncheon meat from the refrigerator, and left in Johnson's car, with Johnson driving and the other two riding in the back seat.

Following Fitzgerald's directions, Johnson drove down a remote dirt road, parked near some woods, and extinguished the car lights. Fitzgerald threw Cubbage's clothes behind the car. Johnson led Cubbage a short distance into the woods, where Fitzgerald pushed her to her hands and knees and forced her to engage in oral sodomy with him until she said she could not continue because of blood in her mouth. Fitzgerald struck her with the machete, and Cubbage said, "God, please just blow my brains out and get it over with ...." Fitzgerald proceeded to mutilate her by stabbing and slashing her repeatedly, from head to feet, front, sides, and back, including both eyes, as well as genital and rectal areas, with the machete and with a knife that he removed from his wallet. 2 Fitzgerald then "kicked her a few times," before he and Johnson covered her dead body with leaves.

Asked why he had done the things to which he had testified, Johnson replied that he was afraid that Fitzgerald, who was "tripping" from the LSD, would kill him if he did not cooperate. Johnson maintained that he was "too scared to run," that he did not remember "being so frightened" in his life.

As they went back to the car, Johnson said, Fitzgerald asked him if he wanted to forget what had happened, and when he replied in the affirmative, gave him some "acid," which he consumed. They drove to a dumping area, where Fitzgerald, looking in Cubbage's purse, found several medicine bottles, one pill, two syringes, and a "dime" of marijuana. Fitzgerald kept the pill, divided the marijuana with Johnson, and threw the purse with its remaining contents on the ground. They returned to Fitzgerald's apartment, where Fitzgerald handed the machete and knife to his wife. There was blood on Johnson's face, arm, and tennis shoes, and on Fitzgerald's hands and arms. Fitzgerald put his own clothes in the washing machine. Johnson went to the bathroom and vomited before washing off the blood; he left his tennis shoes and clothes for Fitzgerald to wash.

Informing Johnson that he was "now a one percenter," Fitzgerald tattooed on Johnson's arm the "one percenter mark" which, he told Johnson, meant that the person who wore it "was a total outlaw and had no respect for the law whatsoever and didn't care for anyone but himself." Johnson knew of "one biker group" that used this tattoo and he knew that Fitzgerald wore one. He exhibited his mark to the jury.

Angelia Robinson testified that about 8:30 p. m. on November 13, she, Cubbage, and Henn went to Fitzgerald's apartment. She described Fitzgerald as "drunk" at that time; he was drinking beer. About 10:00 p. m. Robinson, Cubbage, and Henn left the apartment and went to a restaurant for "a couple of drinks." Cubbage was tired, so Robinson and Henn took her back to Henn's house, where Henn, his wife, who was away on a business trip, Robinson, and Cubbage resided, and Cubbage went to bed. Robinson telephoned to her "agency," found that she had a "call," and left with Henn for Richmond about 12:30 a. m.; when they returned about 3:00 a. m. and discovered that Cubbage was missing and that there were bloodstains throughout the house, they called the police.

Henn testified that on the evening of November 13, he was given capsules of Tranxene, "a mild tranquilizer," by Fitzgerald's wife, Bonnie. At Fitzgerald's request, Henn gave him five or six of these capsules.

In driving to the Henn residence in response to the report of Cubbage's disappearance, Officer James W. Stanley, of the Chesterfield County Police Department, recognized Johnson's car as it emerged from a side street near a dumping area. He had often seen the car parked at night near Johnson's apartment, but he had never before seen it in operation at such an hour. He found, upon inquiring into Cubbage's activities on the evening of November 13, that she had been in a group that included Johnson. Returning to the area where he had observed Johnson's car, the officer searched until he found Cubbage's purse with its contents scattered nearby. On the same afternoon, November 14, Cubbage's body was discovered; shortly thereafter, Johnson and Fitzgerald were arrested and charged with capital murder.

The Commonwealth introduced into evidence color photographs of Cubbage's bedroom, Johnson's automobile, and the place where Cubbage's body was found. Commonwealth exhibits included Cubbage's purse and its contents, her clothing and glasses, Fitzgerald's knife, which had been found hidden in his apartment, Fitzgerald's tattoo kit, pubic hair samples consistent with Fitzgerald's found in Cubbage's bed, and bloody floor mats and a bloody newspaper from Johnson's car. The trial court, excluding color photographs of Cubbage's body, admitted black-and-white photographs of the body.

Wilbur H. Caviness, who had been an inmate in the Chesterfield County Jail while Fitzgerald was confined there pending trial, testified that he asked Fitzgerald why he would do such a thing as "kill this woman and cut her up." According to Caviness, Fitzgerald stated that he had had intercourse with her and cut up her genital area because she "snitched on him and snitched on a friend of his also." There was evidence that Cubbage was a police informer and that an informer is sometimes referred to as...

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