Petition — Fitzgerald v. Virginia

(Ik

fz

RECEIVED

DEC 8 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

SAM aaNe

No. 82 5853

*

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

APOLLON

EDWARD 8. FITZGERALD,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRADLEY S. STETLER

419 Seventh Street, N.W.

Suite 202

Washington, D.C. 20004

(202) 638-4798

PETER J. MURTHA

233 Tenth Street, N.E.

Washington, D.C. 20002

(202) 382-2521

etter

I PRES

1. whether the trial court's instructions at sentencing

were tantamount to 4 directed verdict of death after the

jury returned with «4 finding of the existence of aggravating

circumstances suggesting non-unanimity?

II. Whether petitioner was denied due process where

the only evidence of penetration to sustain capital murder

based on rape was his uncorroborated “admission” to a jail

inmate called as a surprise witness?

III. Whether the trial court had an affirmitive duty to

inquire further of defense counsel when the court had actual

knowledge of 4 potential conflict of interest on the part of

that counsel?

Questions Presented er . i

Table of Authorities oe eee eee ae

Citation To Opinion Below -«++****s*****°

Jurisdiction ae ot ey 1

ear wee eves *

Statement of the Case eee e 6 0 0 668 6 8 3

How the Federal Questions Were ,

Raised and Decidec Below eee 6 se 4 Oe & 8

Reasons for Granting the Writ

I. This Court should grant certiorari to review

suggesting non-unanimity —e eee 6 eS

II. This Court should grant certiorari to review

; whether petitioner was denied due process where

the only evidence of penetration to sustain

capital murder based on rape was his uncor-

roborated “admission” to a jail inmate called

as a surprise witness eee he Oe 6 Oe

III. This Court should grant certiorari to review

whether the trial court had an affirmitive

duty to inquire further of defense counsel

when it had actual knowledge of a potential

conflict of interest on the part of that

counsel * * * * * * * * * * * * * 20

Conc lus ion * * * * * * * * * * * * * * * * . * 2 3

Appendix

Fitzgerald v. Commonwealth, Va. , 292 S.E.2¢

~ * * * * * * * * * * * * * la

Assignments of error ee

Trial court's reinstructions at sentencing .. 22a

Verdict form Con he ee eee

Materials pertinent to claim involving conflict

of trial counse} Soe aw eae ees

TABLE OF AUTHORITIES

Cases:

es v. United States, 333 U.S. 741

1948 * 6¢«*# © © © © *® es 4 ee Se Se CF

Ba ar v. Maryland, 397 U.S.

(197 * * * * * * . - * * * * * *

Castillo v. Este $04 F.2d 1243

cis. } * - * * * * * * * * *

cert. den ed, 393 U.S. 849 (1968) .-.-

Pitzgerald Ve comTsesy cl

Ez. * * * * * * * *

Furman v. Georgia, 408 U.S. 236 (1972) « -

Gardner v. Florida, 430 U.S. 349 (1977) . -

Gregg v- Georgia, 426 U.S. 153 (1976) - - -

Holloway v. Arkansas, 435 U.S. 475 (1978) .

Jackson v. Virginia, 443 u.S. 307 (1979) .

Lockett v. Ohio, 438 u.S. $66 (1978) «+:

McCall v. Commonwealth, 192 Va. 422, 65

5.E.2 . * sen © © © © 2 6

Opper v. United States, 348 U.S. 84 (1963)

Phillipe v. Commonwealth, 202 Va. 207

S.E.20 352 T1960) * * * ll at * *

Smith v. Estelle, 602 F.2d 694 (5th Cir.

1979) aff'd 451 U.S. 454 (1981) ..-

smith v. Philli u.s. 102 S.Ct.

es SEEN’ nt. sc Dew ee

Smith v. United States, 348 U.S. 147 (1954)

Spratley v. Commonwealth, 154 Va. 854, 152

* * 36 * * * * * * * . * * *

State v. Kraus, 230 S.E£.2d 800 (N.C. App.

1977 * * * * * * * all * * al * * * . *

Stromberg v. California, 283 U.S. 359 (1931)

United Brot

herhood of Carpenters and Joiners

1,6

17,18,

19,20

12,13

13,14

18,19,

11

United States v. Gresham, 585 F.2d 103 (5th

r. ee

a ee

In Re Winship, 397 U.S. 358 (1970) «© «© «+ «+ «ee es

Williams v. Florida, 399 U.S. 78 (1970) .. «+ «© ««+-s

Wong Sun v. United States, 371 U.S. 471

63) * * 7 * * * * * . * * * * . * * * * * *

Wood v. Georgia, 450 U.S. 261 (1981) « «© «+ «+ ee +s

Woodson v. North Carolina, 428 U.S. 280

(976) * * * * * * * * * * * * * * * * a * * *

gant v. Stephens, Oe. , 108 6...

185 * * * * * * * * * * . o e * . * * *

Statutes, Constitutional Provisions and other Authority:

Se U.6.6. S207) «6 te tte ee ht ee

Ta. Gee O00. F-3 w tketewC

We. Gode €18.3°64 « « we eee eee ewnenene

We. Coie 819. 0-066.2 «6 2 sw ew mee eee ee

Te. Goede 627.0420.8 «© so we snvennvnnunvwnene nese

We. Gomet. ert. I, BB oe we metre eee te

Sixth Amendment to the United

Beaten Cometitetion .«. «© sse e806 8 +e ee ee

Seventh Amendment to the United

‘Beates Cometitution « «esse 8 ee 6 & » * *

Eighth Amendment to the United

Beates Cometitution .-« sess esses 08 0 0 *

Pourteenth Amendment to the United

Bietes Copptitetion .« «© ©= ese vee ene eee

40 A.L.R. 460 * * * * * * * * * * * ad * * « * * * * *

Arizona Ethics Committee Opinion

No. 73-6 (1973) ee

Illinois State Bar Associations

Professional Ethics Opinion

No. 311 (1968) * bad . * * * * * * * * * * * * * *

Spouses and Conflict of Interest,

Wigmore, Evidence (3d ed. 1940) .. . + + s+ e+e # #»

15

2

2

13 |

2535-8 |

3, 6

10

21

15

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

EDWARD B. FITZGERALD,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Petitioner, Edward 8. Fitzgerald, respectfully

prays that a writ of certiorari issue to review the judgment

of the Supreme Court of Virginia entered in this case.

CITATION TO OPINION BELOW

eee A AOA ADA,

The opinion of the Supreme Court of Virginia is

reported in Fitzgerald v. Commonwealth of Virginia, __ Va.

___» 292 S.E.2d 796 (1982), and is appended hereto at la.

The order of the Supreme Court of Virginia denying

Mr. Fitzgerald's petition for rehearing is unreported.

JURISDICTION

The judgment of the Supreme Court of Virginia was

entered on June 18, 1982. A timely petition for rehearing

was denied on September 9, 1982. On November 1, 1982, Chief

Sustice Warren E. Burger, Circuit Justice for the Fourth Cir-

cuit, issued an order granting petitioner to and including

-~jl-

December 8, 1982, to file this petition. Jurisdiction of

this court is invoked pursuant to 28 U.S.C. §1257(3), peti-

tioner having asserted below and intending to here assert

deprivation of rights sec red by the Constitution of the

United States.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ie This case involves the Eighth Amendment to the

Constitution of the United States, which provides in relevant

part:

ee nor cruel and unusual punishments

inflicted;

the Fourteenth Amendment to the Constitution of the United

States, which provides in relevant part:

No state shall ... deprive any person

of life, liberty or property, without

due process of law;

and the Sixth Amendment to the Constitution of the United

States, which provides in relevant part:

In all criminal prosecutions, the

accuseé shall enjoy the right ..-»

to have the assistance of counsel

for his defence.

ae This case also involves va. Code §18.2-31

(1950), as amended, which provides in relevant part:

The following offenses shall con-

stitute capital murder, punishable

as a Class 1 felony:

id) The willful, deliberate and

premeditated killing of any person

in the commission of robbery while

armed with a deadly weapon;

(e) The willful, deliberate and

premeditated killing of a person

during the commission of, or sub-

subsequent to, rape;

- 2-

ACL ONL GALI ILE

nee

seta

Espagne REN Ie ARTUR RSLS EOIN NENEBERR EEN IERIE

Va. Code §19.2-264.2, which provides:

In assess the penalty of any

person convicted of an offense

for which the death ——

be » & sentence of

shall not be imposed unless the

court or jury shall (1) after

consideration of the past cri~-

iminal record of convictions

of the defendant, find that

there is a probability that the

defendant would commit criminal

acts of violence that would

constitute a continuing serious

threat to society or that his

conduct in committing the

offense for which he stands

charged was outrageously or

wantonly vile, horrible or

inhuman in that it involved

torture, depravity of mind or

an aggravated battery to the

victim: and (2) recommend

that the penalty of death be

imposed[ };

and Va. Code §17.110.1, which provides in relevant part:

Cc. In addition to consideration

of any errors in the trial

enumerated by appeal, the court

shall consider and determine:

1. Whether the sentence of

death was imposed under the ine

fluence cf passion, prejudice or

any other arbitrary factor.

STATEMENT OF THE E

Petitioner seeks a writ of certiorari from this Court

to the Supreme Court of Virginia to review a Gecision of that

court upholding his convictions and sentence of death.

Petitioner is convicted of capital murder (two counts),

armed robbery, rape, abduction with intent to defile, and

burglary, all arising from a series of incidents occurring on

November 13 and 14, 1980. The jury recommended sentences

of death for capital murder based upon the “vile, horrible or

inhuman nature” of the offense, Va. Code §19.2-264.2, and

life sentences for each of the remaining convictions.

-Pive days prior to trial, petitioner was informed, for .

the first time, by the trial court that the wife of his princi-

-~ 3-

ple defense attorney, Fred S. Hunt, worked for the very Common-

wealth Attorney's office that was prosecuting the case. App.

at 28a. The trial court asked petitioner if he was satisfied

with his attorney but the court failed to inquire as to whether

counsel was able to effectively represent petitioner. App.

at 29a~-30a.

The evidence presented at trial by the Commonwealth

fundamentally was based on the testimony of petitioner's co-

defendant, Daniel Johnson, who was arrested on November 14,

1980, prior to petitioner's arrest. As a result of plea

bargaining, petitioner's co-defendant never stood trial

for the capital offense for which he was indicted, and

instead was sentenced to forty years in prison. Petitioner

has consistently maintained his innocence.

At trial’ the Commonwealth presented evidence, through

Johnson, that petitioner and Johnson had, on the evening

of November 13, been at petitioner's house together with

several other people, when petitioner received a phone call

from 2 friend indicating that the friend expected some

erouble.2/ Tr. 344-346. Petitioner produced a machete, which

Johnson strapped on, and they proceeded to the house of peti-

tioner’s friend. Tr. 346. Finding no trouble at that house,

petitioner and Johnson decided to go to the temporary residence

of the murder and rape victim, Patricia Cubbage, to look

for drugs. Tr. 353. They did not expect her, or anyone

else, to be at home. :

after breaking into the Cubbage house, Johnson stayed

downstairs while petitioner went upstairs. Tr. 359.

Johnson heard a woman's yoice and went upstairs into Cubbage's

1/ ‘The description of the events of November 13 and 14

presented in this Statement of the Case, are based solely on

Johnson's testimony, unless otherwise noted.

-4-

bedroom. Tr. 355-356. He found Cubbage on the floor with

petitioner standing over her. Tr. 356. He and petitioner helped

Cubbage onto her bed. Tr. 357. Petitioner proceeded to unzip

and drop his pants and move onto the bed. Tr. 359. At this

point, Johnson turned around towards the wall and saw nothing

further until petitioner was pulling his pants back up.

Tr. 359. (A single pubic hair, consistant with petitioner's,

was later found on the bedsheet. Tr. 597.) At this point,

petitioner decided to abduct Cubbage, in order to “finish

the job he had come there to do." Tr. 363. Petitioner,

Johnson and Cubbage proceeded in Johnson's car to 4 secluded

area where, Johnson states, she was slain by petitioner by

multiple stabbings. The body was found on November 14 and

both petitioner and Johnson were arrested later that day.

The Commonwealth supplemented Johnson's testimony

at trial with that of Wilbur Caviness, who had been a inmate

in the jail where petitioner had been kept prior to trial,

and whose charges were then pending. Tr. 423, 428. Caviness,

who was used by the Commonwealth as a "surprise" witness,

testified that Fitzgerald had told him that he had killed

and mutilated Cubbage because °[1) screwed the woman and

the pussy was so good to [me that I} cut it cut and carried

it home to eat.” Tr. 423.

After petitioner was convicted of capital murder and

the other offenses, a separate sentencing hearing was held.

At that hearing the Commonwealth produced »svidence that

petitioney had several years earlier been convicted of the

unlawful wounding of his wife, tr. 879, in attempt to show that

petitioner was a continuing serious threat to society.

Va. Code $19.2-264.2. The jury was instructed orally and

in writing that it could impose the death penalty if it

found either that he posed a future threat to society or

if his conduct was “outrageously or wantonly vile, horri-

ble, or inhuman in that it involved torture, depravity of

o3-

mind, or an aggravated battery to the victim." Id.

The jury deliberated for over 8 hours and returned

with a verdict of death based upon the two aggravating cir-

cumstances they found in the alternative. App. at 22a. The

trial judge ordered the jury to renew deliberations and to

“make an election as to which one you did find he did."

App. at 24a. The jury returned with a verdict finding the

existence of the “vileness" aggravating circumstance. App- at

26a. On appeal the Virginia Supreme Court affirmed the con-

victions and death sentence. Fitzgerald v. Commonwealth, -

Va. __+ 292 S.E.24 798 (1982).

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

Petitioner alleged in his brief on appeal that his

trial counsel was ineffective due to the conflict of interest

posed by the employment relationship of counsel's wife with

petitioner's prosecutor. The Virginia Supreme Court rejected

petitioner's contention that his Sixth Amendment rights were

violated by this conflict of interest holding that there was

no evidence of a potential conflict of interest which would

have required any inguiry by the trial court. App. at l4a~-1l5a.

The question presented concerning the instructions.

to petitioner's jury at sentencing which amounted to a

directed verdict of death was not expressly raised at peti-

tioner's trial or in his brief on direct appeal to the Supreme

Court of Virginia. Nevertheless, it was sufficiently raised

and considered in the Supreme Court of Virginia to sustain

this Court's jurisdiction. Pursuant to Va. Code §17.110.1(C),

the Virginia Supreme Court is required to independently ascer-

tain whether the sentence of death “was imposed under the

influence of any ... arbitrary factor.” The disjunc-

tive verdict which raised a question of lack of unanimity and

- & -

sa a ‘ee eR ogee ane

ai eae

the prejudicial instructions given by the trial judge to

correct the verdict resulted in sentencing fraught with

substantial arbitrariness. Thus, the Virginia Supreme

Court was charged by statute to consider this claim and

implicitly did so. App. at 15a~-1l6a.

Petitioner's trial counsel, at the close of the

Commonwealth's case and after the verdicts were returned,

moved to strike the evidence of capital murder predicated

upon the rape as insufficient as a matter of law. On

direct appeal, petitioner designated that claim as error

12(4) in his assignments of error. App. at 19a. The

Virginia Supreme Court treated the error as waived because

it was not pursued on brief or in oral argument. App. at

7a. Yet, in previous capital cases the Supreme Court of

Virginia has expressly examined assignments of error neither

briefed nor argued rather than holding them to be waived.

See, e.g. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36

(1980), cert. denied, 451 U.S. 1011 (1981). Appellate

counsel's reliance upon such prior pronouncements by the

Virginia Supreme Court should not prejudice petitioner's

right to review by this Court in light of the motions to strike

in the trial court and the express assignment of error.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW THE

TRIAL COURT'S INSTRUCTIONS AT SENTENCING WHICH WERE

TANTAMOUNT TO A DIRECTED VERDICT OF DEATH AFTER

THE JURY RETURNED WITH A FINDING OF THE EXISTENCE

OF AGGRAVATING CIRCUMSTANCES SUGGESTING NON-UNANIMITY.

After deliberating for almost 8 hours on the question of

punishment, petitioner's jury returned a verdict of death

based on special findings stated in the alternative.

tte

ae mesic

The trial court refused to accept the verdict as rendered and

required the jury to elect between the two aggravating cir-

cumstances. The court did not then instruct the jury that

their finding must be unanimous nor did it instruct that they

need not find either of the two circumstances. In effect,

the trial court forced the jury to return a death sentence

after the jury indicated that their special finding may not

have been unanimous.

Under Section 19.2-264.4 of the Code of Virginia, 1950,

as amended, the jury is provided special verdict forms. The

form authorizes imposition of the death penalty where the

jury, having found a defendant guilty of a capital offense,

makes a specific finding of one of two aggravating factors.

Both aggravating factors were argued by the Commonwealth to

apply to petitioner.

The first aggravating factor concerns the probability

that petitioner “would commit crimina] acts of violence that

would constitute a continuing serious threat to society.”

Section 19.2-264.2. The second aggravating circumstance

required the jury to find that petitioner's "conduct in com-

mitting the offense is outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity of mind

or an aggravated battery to the victim." Id. The jury

verdict form in petitioner's case was drafted to authorize

the jury to find that petitioner constituted a serious threat

to society “and/or” that his conduct satisfied the vileness

standard. App. at 28a.

When petitioner's sentencing jury first returned to the

court with a verdict, the trial judge refused to accept it

because the foreman did not strike out the “and/or” in the

verdict form. App. at 22a. The jury foreman responded, "I

would strike out the and. It would be or." App. at 22a.

ee

The trial judge, however, ordered that the jury reconsider

its verdict, stating, “you have a choice of whether you

gound one way or the other way or both." App. at 22a-23a.

The jury again retired and returned with a verdict

striking the word “and” in the form, thus again making «a

finding of aggravating circumstances in the alternative.

The trial judge still refused to accept the verdict and

gave the following instruction:

As I instructed you, before you can

impose the death penalty, it is

necessary for you to make one or two

findings. You don't have to find

both: one or the other, or you can

find both. The way the verdict is

written with the or in it, you don't

gay which one. You would have to

strike out the paragraph that was

involved. 60 what I am saying to

you, you have to make an election

as to which one you did find that

he did.

App. at 24a.

Subsequent to this instruction, directing the jury to elect

between the two circumstances, the jury retired yet again

and finally returned with a verdict finding the existence of

the vileness aggravating circumstance. Thus, petitioner

was sentenced to death.

There was a two-fold problem with these instructions

and the resulting jury findings. First, a verdict stated

in the alternative does not clearly and unequivocally state

the findings upon which the death penalty was based. In their

initial two attempts, the jury found that petitioner was a

continuing serious threat to society or that the conduct he

engaged in was sufficiently vile. The verdict does not say

which is found.

Nor do those attempted verdicts on their face seeure “has

the jurors were unanimous in finding either of the two circum-

stances. Rather, it is equally possible, for example, that

six of the jurors found for “vileness" and six for “future

dangerousness.“ Where on the face of the verdict

pienanpeccgi iia RE Awaguntii te Ee lat

itself it is impossible to determine whrther there was

unanimity on any special finding, the verdict should be set

aside.

Unanimity in jury verdicts is

required where the Sixth and

Seventh Amendments apply. In

criminal cases, the requirement

vf unanimity extends to all

issues ~~ character or degree

of crime, guilt and punishment

-«- which are left to the jury.

A verdict embodies in a single

finding the conclusions by the

jury upon all questions submit-

ted to it.

Andres v. United States, 333

U.5. 741, *

Further, under Virginia law petitioner was entitled to a

unanimous verdict. Va. Const. art. I, §8.

While the issue concerning non-unanimous findings on

aggravating circumstances has not been ruled upon by this

Court, in Andres this Court interpreted the then existing

federal death penalty statute which reguired the imposition

r of death in all murder cases unless the jury specifically

found that capital punishment was not warranted. This Court

held that before the ultimate punishment could be imposed,

the jury must conclude unanimously that the cefendant was

guilty and separately must conclude unanimously that death

should be imposed.

Indeed, particularly in capital cases, verdicts should

be certain and unambiguous. Where the instructions on per~-

missible sentences are in error, it is incumbent upon a re~

viewing court to resolve doubts in favor of the accused.

Andres, 333 U.S. at 752. Ina related context, this Court

has held that if the jury has been instructed to consider

several grounds for @ conviction, one of which proves to be

unconstitutional, and the reviewing court is thereafter un-

able to determine from the record whether the jury relied

on the unconstitutional ground, the verdict must be set

-~ 10 -

aside. Bachellar v. Maryland, 397 U.S. 564 (1970);

Stromberg v. California, 2863 U.S. 359 (1931). This Court

recognized a closely analogous problem in Zant v. Stephens,

__. Ue8- _ + 102 8.Ct. 1856 (1982), where this Court was

asked to decide whether a death sentence which is imposed on

the basis of a plurality of aggravating circumstances should be

set aside where one of those aggravating circumstances

later is proven to be unconstitutional.

In petitioner's case it simply cannot be determined

with the degree of certainty required in capital cases

whether the disjunctive verdict first returned by the sen-

tencing jury reflected a unanimous finding on either of the

two aggravating circumstances. At most, such @ verdict

allows only one of two inferences: (1) that the jury

unanimously concluded one or the other circumstance existed,

or (2) some jurors found one circumstance and the remaining

jurors found the other.

The error reflected in the disjunctive verdict was

exacerbated by the instructions of the trial judge who

refused to accept the verdict. The trial judge explicitly

directed the jury to elect between the two circumstances.

The jury was instructed to find one or the other, or both.

At no time did the trial judge reinstruct the jury that their

verdict concerning punishment need be unanimous. In effect,

the trial judge directed at that time that a verdict of death

be returned, even though there was sufficient reason to be~

lieve that the jury had failed to conclude unanimously that

either of the circumstances existed.

Directed verdicts in criminal cases, of course, are

totally unacceptable. United Brotherhood of Carpenters

and Joiners of America v. United States, 330 U.S. 395, 408

(1947). Such a directive, whether express or implied, im-

«ii «

properly invades the province of the jury. The coercive

effect of the challenged reinstruction is apparent from the

face of the record.

The death penalty may not be imposed under sentencing

procedures that create an appreciable risk that the penalty

will be inflicted in an arbitrary and capricious manner.

Purman v. Georgia, 408 U.S. 238 (1972). There is no assurance

that the jury in petitioner's case freely and fairly arrived

at a unanimous verdict on the question of which of the two

aggravating circumstances existed to satisfy the imposition

of death. Because the penalty of death is qualitatively differ-

ent from a sentence of imprisonment the need for relia-

bility in the determination that death is the appropriate

punishment is thereby heightened. Woodson v. North Carolina,

428 U.S. 280 (1976). The disjunctive verdict and the sub-

sequent coercive instruction have stripped the death sentence

imposed on petitioner of that reliability. Therefore, this

Court should review this case as such review would have signi-

ficant impact on the administration of the death penalty

in this country.

II. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW WHETHER

PETITIONER WAS DENIED DUE PROCESS WHERE THE ONLY EVI-~

DENCE OF PENETRATION TO SUSTAIN CAPITAL MURDER BASED

ON RAPE WAS HIS UNCORROBORATED "ADMISSION" TO A JAIL

INMATE CALLED AS A SURPRISE WITNESS.

A. The evidence of capital murder based upon rape

ts a ce a matter of law as to

The Fourteenth Amendment protects a defendant in a

criminal case against conviction “except upon proof beyond

a reasonable doubt of every fact necessary to constitute

the crime with which he is charyea.” in te Winship, 397

U.S. 358, 364 (1970). This principle was explicitly ex-

tended to state court proceedings in Jackson v. Virginia,

443 U.S. 307 (1979), in which this Court overrulec the

<>

previous “no evidence” standard under which a federal

appellate court would review state court criminal convictions

in favor of & standard encompassing the Winship require-

ments:

{T)he relevant question is whether,

after viewing the evidence in the

light most favorable to the pro-

secution, any rational trier of

fact could e found the essential

elements of the crime beyond a rea-

sonable doubt.

Jackson, 443 U.S. at 319 (emphasis

Tn original).

The state trial court in petitioner's case ignored its

mandate under Jackson by deciding, over the motion of de-

fense counsel, tr. 663, that the rape case be submitted to the

jury despite the fact that the evidence could not allow a

rational trier of fact, under the law, to find the required

element of penetration.

In Virginia, rape is statutorily defined, in relevant

part, as:

» « »« Sexual intercourse with a

female [which is] accomplished

(4) against her will, by force,

threat or intimidation. .. 2/

Va. Code §18.2-61. To prove rape “the prosecution must

prove that there has been an actual penetration to some ex-

tent of the male sexual organ into the female sexual organ.”

McCall v. Commonwealth, 192 Va. 422, 65 S.E.2d 540, 542

(1951). “It is not sufficient that facts and circumstances

proven be consistent with petitioner's guilt. To sustain a

conviction they must be inconsistent with every reasonable

hypothesis of his innocence.” McCall, 65 S.E.2d at 542,

quoting Spratley v. Commonwealth, 154 Va. 654, 152 S.E.

362 (1930).

2/ The Court in Jackson, 443 U.S. at 324, n. 16,

indicated that the constitutional review “must be applied

with explicit reference to the substantive elements of the

criminal offense as defined by state law."

-l13-

scence GRU Goo ee an "

ao ss) ep Re tarmac 98 censor gS gate ee ex mR

In the light most favorable to the prosecution, the

following evidence was produced in support of the rape charge

which served as the predicate for petitioner's capital murder

conviction. First, accomplice Johnson testified that he was

in the bedroom with petitioner and the victim, Ms. Cubbage,

when the alleged rape occurred and that he saw petitioner,

his pants pulled down around his thighs, go onto the bed with

Cubbage, at which time he heard Cubbage breathing hard and

the bed squeaking. Tr. 359-360. Second, a single pubic hair,

found by a prosecution witness to be “consistent” with Mr.

Fitzgerald's, was found on Ms. Cubbage's bed sheet. Tr. $91,

597. Finally, Caviness, who was incarcerated in the same

jail as petitioner as he awaiting trial, testified that peti-

tioner said: “[1I] screwed the woman and the pussy was 80

good to [me that I] cut it out and carried it home to have it

to eat,” in response to the inmate's inquiry as to why he

*"killfed] this woman and cut her up.” 3/ Tr. 423.

The trial court apperently ignored the uncontradicted

fact that there was no evidence of seminal fluid in the

victim's vagina (or anywhere else) nor of petitioner's pubic

hairs in her pubic area. Tr. 615. However, the court in

McCall, 65 S.E. at 542, instructed:

The absence of semen in the

{[victim's) genital organs or

of stains therefrom on her

clothing, while not conclus-

ive of the fact, is a strong

circumstance indicating that

there was no attempted sexual

intercourse.

ff The insufficiency, as a matter of law, of this

"admission" to prove penetration is discussed in detail,

infra. Additionally, the due process violation connected

with the prosecution's use of Caviness as a surprise witness

is also detailed, infra.

Accord, Coles v. Peyton, 389 F.2d 224, 227, n.5 (4th Cir.

1968) (applying Virginia law). In view of the fact that the

only tangible evidence concerning penetration showed that no

penetration occurred, and the absence of other evidence, apart

from the “admission,” that could rationally show penetration

beyond a reasonable doubt, the trial court erred in not granting

a judoment of acquittal on the rape and capital murder charges.

The prosecution in petitioner's case attempted to

supply the element of penetration through the only “evidence”

it could muster; the "admission" purportedly made by peti-

tioner to his fellow inmate. / In Smith v. United States,

348 U.S. 147 (1954), this Court made it clear that the pro-~

secution may not do so:

The general rule that an accused

may not be convicted on his own

uncorrokorated confession has

previously been recognized by this

Court [citations omitted), and

has been consistently applied

in the lower feaeral courts and

in the overwhelming majority of

state courts [citations omitted).

Its purpose is to prevent “errors

in convictions based upon untrue

confessions alone.” [citation

omitted).

This corroboration requirement applies with equal force to

admissions. Opper v. United States, 248 U.S. 84 (1963).

In Wong Sun v. United States, 371 U.S. 471, 489, n. 15

(1963), this Court elucidated the corroboration requirement

with respect to crimes involving physical damage to person

or property:

5 BO ae assuming, arguendo, — the “rage ee entan bok

thie "a asion* were spoken petitioner, it is an n ut

clear that they were intended to be a truthful om png

the alleged rape or any element of the alleged rape. The

words allegedly spoken by petitioner seem more likely tc have

been petitioner's misguided attempt at humor, or may have been

intended to show anger with Caviness' question. Moreover,

courts are mindful that the weight to be accorded a confession

is necessarily dependent upon its quality and thus view factors

such as its detailed nature as highly significant in deter-

mining its probative value. See e.g., United States v. Gresham,

585 F.2d 103, 106 (5th Cir. 1578); any reasoned standards,

petitioner's “admission” must be given little weight.

ee

Roam cnnae Map ogee

‘ " Mat oe th

4 meee shanti hai sill r

er en a ACen sae 8

Where the crime involves physical

damage to person or property, the

prosecution must generally show

that the pone me for which the

accused confesses responsibility

did in fact occur, and that some

person was criminally culpable.

A notable example is the prin-

ciple that an admission © homi-

cide must be corroborated by

tangible evidence of death of

a supposed victim. see 7

— (34 ed. 1940),

Virginia le: also vequires that the “corpus @Gelicti may not

be proved by extra-judicial confession alone.” Phillips v.

Commonwealth, 202 Va. 207, 116 8.E.2d 282, 285 (1960). In

applying that principle in connection with a sodomy conviction,

the court in Phillips refused to allow the conviction to stand

even in view of a lengthy written confession by Phillips and

the fact that the co-defendant was in possession of Phillips’

automobile, corroborating part of the confession. The court

adopted the rule that “the coincidence of circumstances tend-

ing to indicate guilt however strong and numerous they may

be, avails nothing unless the corpus delicti, the fact that

the crime has been actually perpetrated, be first established.”

1a. >/

Under the principles set forth by this Court and the

Virginia Supreme Court it is clear that tangible evidence

of the alleged penetration must be shown in order to sustain a

rape conviction. By failing to require corroboration of the

“admission,” and by ignoring the ecientific evidence strongly

tending to demonstrate the absence of penetration, the trial

court unconstitutionally denied petitioner due process of law.

His capital murder conviction predicated upon rape, then,

should be reviewed by this court and reversed.

5/ This rule has been applied with particular stringency

with regard to sexual offenses. State v. Kraus, 230 S.E.2da

800 (N.C. App. 1977). See also 40 A.L.R. 460 ("Necessity and

character of corroboration of confession of sexual offenses.")

B. The prosecution's use of a surprise witness

necessary to sustain the capital murder-rape

conviction and the sentence of death runs

afoul of the due process clause.

The insufficiency of the evidence of rape in this case

is compounded by the Commonwealth's constitutionally imper-

missible use of a surprise witness -~- the jailhouse snitch

-- by which the Commonwealth effectively and calculatedly

subjected Mr. Fitzgerald to the death penalty in contra-

vention of rights guaranteed by the Fifth, Eighth and Four-

teenth Amendments. Undoubtedly, the use of the inmate was

contemplated by the Commonwealth long before trial in an

attempt to buttress the fundamental weakness of their evidence

of rape. However, rather than divulge their scheme to use

his testimony, so as to allow defense counsel to conduct the

necessary investigation to challenge and discredit this highly

suspect testimony, the prosecution elected to unveil their

*“bombshell* where its impact would be most devastating: in

front of the jury at trial. This deliberate use of a surprise

witness effectively shocked defense counsel and resulted in

the inmate being only tenatively and inconsegquentially

cross-emamined , As a result, this unimpeached, inflam-~

matory testimony had a two fold destructive effect: (1)

it supplied to the jury @ basis upon which they could convict

Mr. Fitzgerald of rape, and thus supply the necessary pre-

dicate for the capital murder charge, y/ and (2) the malignant

nature of the alleged statement made by Mr. Fitzgerald to the

inmate established to the jury that he was a man not fit to

iive.

In Gardner v. Plorida, 430 U.S. 349 (1977), this Court

reversed a death sentence because the judge who imposed it

6/ The surprise created by this witness is well document-~

ed in the record. See Tr. at 660.

7 Of course, as established supra, from any per~

spective this testimony could not suff ietently establish

rape in this case.

-17-

acted partly on the basis of information that was not dis-

closed to the defendant o his counsel. This Court recog-

nized that in an ordinary case such procedure might be

acceptable, but specifically distinguished potential “death

penalty” cases. *(F]ive members of the Court have now ex-

pressly recognized that death is a different kind of punish-

ment from any other which may be imposed in this country.”

Id. at 357. Accordingly, the Gardner Court, balancing the

benefits of withholding the information against the costs,

found that the advantages to the state -- obtaining infor-

mation more easily, avo ding @elay and preventing harm to

the defendant's rehabilitation (if not executed) -- were over-

whelmed by the damage to justice's overriding "interest in

reliability." Id. at 358-60. See also Lockett v. Ohio, 438

uU.S. 586, 604 (1978) (the difference between death and all

other criminal sanctions calls for a greater degree of

reliability when the death sentence is imposed).

Recognizing the fundamental error which this Court

identified in Gardner -~ defense counsel's inability to chal-

lenge or answer the evidence on which the death sentence is

based -- the Fifth Circuit in Smith v. Estelle, 602 F.2d 694

(Sth Cir. 1979) aff'@ 452 U.S. 454 (1961), held that the defend~

ant's right to due process was denied where the state

utilized a surprise witness in the sentencing phase of a

death penalty case. /

In Smith the Fifth Circuit adopted the “balancing

interests” analysis articulated by this Court in Gardner.

The Fifth Circuit first focused on the adverse consequences

of the use of a surprise witness:

Surprise can be as effective os

secrecy in preventing effective

cross-examination, in denying

8/ This Court affirmed the Fifth Circuit's opinion in

Smith, but did not reach the issue presented here. Estelle

v. Smith, 451 U.S. at 473, n.17. (All further references to

Smith in this petition are to the Fifth Circuit's opinion.)

- 18 <-

the “opportunity for [defense]

counsel to challenge the

accuracy or materiality of evi-

dence Gardner v. Florida, 430

U.S. at , and in oreclosing

‘that debate between adverscries

{which) is often essential to

the truth-seeking function of

trials," id. at 369.

ith v. Estelle, 602 F.2d at 699.

In Smith the surprise witness was a psychiatrist who gave

devastating testimony with regard to defendant's future

dangerousness which, due to the surprise, could not be effec-

tively responded to or impeached. Id. In the case sub judice,

the surprise testimony was even more harmful because it not

only provided the underpinnings for the jury's imposition of

the death sentence upon Mr. Fitzgerald by purportedly showing

his blood chilling lack of remorse, but also provided a sub-

stantive basis upon which he could be convicted of a capital

offense. 9/

The Smith court viewed the justification for the use

of a surprise witness and found that “the price of avoiding

surprise was, at most, the insignificant cost of more regular

and formal procedures.” Id. at 700. The court observed:

{T]he gains from informality and

relaxed procedures cannot possibly

outweigh the risk that the state

may execute a person who would not

have been sentenced to death if

the jury had had‘'full and accurate

sentencing information'-‘an in-

dispensible prerequisite to a rea-

gonable determination of whether

defendant shall live or die.’

Gr v. Georgia, 428 U.S. 153

a> me :

9/ Moreover, it is worth noting that in the instant

case the Commonwealth was so successful in shielding the

inmate's testimony that it came as an absolute surprise; in

Smith the surprise testimony came from a psychiatrist who

efense attorneys knew had examined their client in

connection with the case. 602 F.2d at 697.

- 19 -

Applying the rationale of Gardner and Smith to the instant

case, it is clear that there was no substantial justification

for the intentional use of the surprise witness while there

were compelling and unmistakable reasons -- if the criminal

justice system is truly concerned with the interest in relia-~

bility -- for not using surprise tactics. If this Court's

admonition in Williams v. Florida, 399 U.S. 78, 82 (1970), that

a criminal trial is not “a poker game in which players enjoy

an absolute right always to conceal their cards until played,”

is to have any meaning, then surely the deliberate concealment

until trial of devastating testimony by a jailhouse snitch

to bolster an otherwise insufficient capital murder charge

cannot be condoned.

| III. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW WHETHER

THE TRIAL COURT HAD AN AFFIRMATIVE DULY TO INQUIRE

FURTHER OF DEFENSE COUNSEL WHEN IT HAD ACTUAL KNOW-

LEDGE OF A POTENTIAL CONFLICT OF INTEREST ON THE PART |

OF THAT COUNSEL. |

H Petitioner was denied due process of law and his Sixth

Amendment right to counsel free from conflict of interest

when his trial judge with actual knowledge of a possible

disqualifing conflict of interest, failed to inquire

pt.

oe “

further to determine whether an actual conflict of interest

| existed. Wood v. Georgia, 450 U.S. 261, 272 (1981). The

conflict arose in petitioner's case because his lead trial

counsel's wife, before and during the prosecution, was an

administrator in the Office of the Commonwealth Attorney,

petitioner's prosecutor. App. at 29a-30a. The attorneys for

both the Commonwealth and for petitioner were aware of this

potential conflict throughout the prosecution. Most signi-

ficantly, the trial court knew of this conflict, yet did no-

thing other than informing petitioner of that fact, for the

first time, shortly before trial.

In Wood, this Court held that where the trial judge

knew that the petitioners charged with distributing obscene

- 20 <-

literature, were represented by their employer's attorney

and where the record indicated that the lawyers’ strategy was

seemingly more for the benefit of the employer than peti-

tioner's, the court was under a duty to recognize the possibi-

lity of a disqualifying conflict and inquire further. Wood,

450 U.S. at 273. In the instant case the trial judge failed

to take any action prior to or doing the trial to resolve the

apparent conflict of interest other than merely inquiring of

petitioner whether he was satisfied with counsel. The trial

court did not inquire of defense counsel, the Commonwealth,

petitioner or anyone else whether the conflict could result

in a less vigorous defense. July 9, 1981 Motions Hearing,

Tr. 23-24, App. 29a~-30a.

It is generally recognized that an actual conflict of

interest exists when a defense attorney places himself in

a situation “inherently conducive to divided loyalties.”

Castillo v. Estelle, 504 F.2d 1243, 1245 (Sth Cir. 1974).

Moreover, certain situations involving a conflict of interest

are so susceptible to bias as to demand a presumption that

bias exists:

{I}n certain situations a hearing

may be inadequate for uncovering

a juror’s biases, leaving serious

question whether the trial court

had subjected the defendant to

manifestly unjust procedures...

{T)]here are some extreme situations

that would justify a finding of im-

plied bias. Some examples might

include a revelation that the

juror is an actual employee of

the prosecuting agency for! that

the juror is a close relative of

one of the participants in the

trial[ ).

Smith v. Phillips, ig

res cee 540, 5 , 948 (1982)

(O'Connor, J., concurring).

See also Holloway v. Arkansas, 435 U.S. 475, 485, 486 (1978)

(reversing conviction where trial court failed, despite

defense request, to inquire into conflict of interest).

Various state bar association ethics committee opinions

have dealt with other situations similar to this case and

have found it per se improper for one spouse to seek to

represent a defendant prosecuted by the other spouse oF

a member of the staff of the public office which employs

the spouse. Spouses and Conflict of Interest, 52 Den. L.J.

735, 748 (1975). These decisions were based on the

“realities of the marital relationship” and the inherent

possibility that the domestic and professional responsibi~-

lities of defense counsel and prosecutor might be on a4

collision course when they represent conflicting interests.

See, Arizona Ethics Committee Opinion No. 73-6 (1973),

Illinois State Bar Association Professional Ethic Opinion

No. 311 (1968).

Moreover, in a civil matter the Virginia Bar Association

Legal Ethics Committee stated that it would be unethical

to allow a husband and wife to represent opposite sides of

ail

a divorce proceeding. 52 Den. L.J. 735, 769 (1975) (Appendix

B). The opinion stated in relevant part:

Every client has the right to

expect his lawyer's totally

independent judgment and undi-

vided loyalty. (EC 5-1). Every

lawyer should zealously guard

against any personal interest or

involvement which might impair

in any way his total, unre-

strained dedication to his

client's cause. (EC 5-2). And

every client must feel free to

discuss whatever he wishes with

his lawyer. There should be no

question of his lawyer's inte-

grity in keeping these confid-

ences inviolate, and the client

should feel no inhibition what-

ever in making such revelations

to his lawyer. (EC 4-1). To

allow a husband and wife to

advocate opposing positions in

the same controversy, in the

opinion of our Committee, tends

to compromise these well-esta~-

blished principles of profes-

sional ethics.

- 22 -

The undivided loyalty required of petitioner's defense

questioned where his wife's livlihood or

ed or jeopard-

attorney must be

other aspects of her employment might be affect

ized as a result of his actions. In view of the acute require-

ment for fairness in capital cases, and the failure of the

trial court, despite actual knowledge of the conflict, to

conduct the inquiry mandated by Wood, petitioner urges that

his conviction be reviewed and reversed by this Court.

CONCLUSION

For the foregoing reasons, petitioner prays

of certiorari issue to review the judgment of the Supreme

Court of Virginia in Fitzgerald V- wealth: —. VO am’

292 S.E.2d 796 (1982).

that a writ

respectfully submitted,

EDWARD 8B. FITZGERALD,

By Counsel

233 Tenth Street, N-E-

Washington, D.C.

(202) 382-2521

atl SX

Suite 202

419 Seventh Street, n.W.

Washington, D.C. 20004

(202) 638-4798

« 23°-