Appendix — Fitzgerald v. Virginia

st ietndpseatesn ere. me

eiinwcaeiananape

Amend 4 » §

& Criminal Law ©=394.6(5)

A trial court is not required to give

findings of fact and conclusions of law io s

suppression hearing in aleence of a statuto-

ry mandate. USCA Cocst_ Amend, &

i

fil

jith:

il

iH

E

!

i

2 gnc mere per ca ibadiacacmadieeae a ea

. a = caer ara eres cusaey Pea

of deLberatiag or

could sot be found guilty of either capital

murder or murder im the first degrée.

Ce re

insufficient to establish inadequacy

i eH

.! Ho rife hig i} i M ee q ;

jb welll al at : HE ii i (ly

: Ad eri 1 1 i Sy aut a 38s 3 ax

ti lle eh nie billig By

ea HU aN CAE

Tae He Hit yantiti 1

HBR UHR TUH TEI treat

He an iia liu i Bae Wei; a3 Wu

3a

. . WKS the will, deuberste

vw,

*

‘i dieein tet uae eats ec

spas topes ge.

When Fitsgerald and Johnson left Brad’

Che a, Ya, 2S AA ae Pe

and his

of the offenses other than capital each drank « beer.

jury fixed Fitagerald’s punish-

the

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HF Hata Ma aia an ini

HE A ‘Ri HH hain at

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aH tte yeTTLGeTAEL

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i HH tH Hal HAE i ihe i

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: sens “Ps re i a Hs

A La

om s4g2 4143

Wath Hf Hi EEE tae HL TS

fg ‘ hole Pa be oad Antnd EAE GRADE WOES Ent tt td atte

+ that he did not give the shoes ‘te Shelton’

voluntarily but only under threat of arrest.

* Shelton testified that on the morning of

November 14 he and other officers had

seized as evidence bloodstained items from

” Johnson's car. They learned from Johnson

that he had been out all night with Pitzger

Commonwealth introduced into evidence, ald and bad left his clothes at Fitzgerald's

his engaging im sexual intercourse os the

livicg room floor ia the Fitagerald apart. Aducted prior to discovery of Cubbage

ment. Under » plea body. Fitzgerald sdmitied having bees

; guilty to the lesser of- with Johnson all night. During the ioter-

fense of unlawful wounding. There was ‘#™. Doticing what appeared to be bicod-

evidence tat the Fitageralds were still liv- ww oa ake ie oe ee a ae

* , ve shoes as

ing together at the time of the Cubbage Fiugerald te She! p + ot

rit

gee

iff

i

it

declining to testify at this stage, he rejected 13, without the shoes, even if it had been

the recommendation of bis attorneys. necessary to arrest him.

Of the 27 alleged errors assigned by Fits-

gerald, several, i one based upon = [1,2] We reject Fitzgerald's

: Witegerald testified that Lieutenant H = wealth, 216 Va. 387, 888, 219 S.E2d 668, 660

M. Sheitoe interviewed him on November (1975), cart denied, 425 U.S. 997, 96 3Ct

Mh aad caked for bis shows. Fitagerald said 16T1, 68 L.Ed 2d 179 (1976). Although the

* © os

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Vinal iil it i fii =i li vee a

ae i Ht ilk THE ie Lit,

in 3 aly 5 iE bias! i fail B

HH BE THB alee AES api Up

" le wit ih ei He

A ale feel i il ie

ee al ae

wit edie aiilittttiles nk

i it

if

il jaa lle

Hiauhbaiy GoStay

il i a ra a

a's ete ae vie al . Hi a at iit -

HERR

iH A 3 +e +

| i anh iF HE a2a3 31 ,

a F nia ut aL ain : i at ;

3 TT Hi: ays ita

cin BE ih Hit i

Het | IGN, thy

233 & ei Hi {i |

egal ally Hh

of substance ip the

than take Cubbage to a hospital, his instruc

a kan oak Fitzenide defense Wont to Johnson to assist Cubbage snd to

was that he did not commit the capital “riveon ® a ean aes ae

murder, or, if he did, that becnase'el drags Where she wee slain, and his actions

and alcohol be did not bave the requisite th billing were ovideane, tnt Be tas Mt

afte. He did sot deny thet multiple stab | tor hin clothes and these of Joha-

was

sion of

lish that, by accompanying Fitzgerald on

nied that be was the culprit this sight of violence, Johasun had earned

B. Whether as « Matter of Law ere an care aie :

Pitagerald Lacked the Intent lieved, supplied not only s tacit admission —

‘by the Saaney wn of aleshel and/or cunnten tasaanaeeao ads

- drugs that he was incapable of deliberating 4 o.04 in the hypothetical question by

TEE, HUBBER

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a 130473

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Het 34

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Ta

Tenet

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modified the murder statutes is

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'b petition The General Assembly

grades murder in order to assign punisb-

ST cach ain paneiinr endacd oat

ake adit eer Acta 1796,

——

youn | f

ell HEE radath

ALM ti 44 mt el a2 Hil

i ain

233447 fal ua ilies i

if gao3% Pa

HEHE 6g | alias: Hints

Bier teerer OTE ELE

test All other murder was murder of the second

id . _-—

was =‘ The first-degree murder statute and its

defendant

of multiple of-

same

killing, or

mg

Code § 181-21 whee kt

as en

or allempt

occasions to resolve double degree

yor bara

7

at

ile

te iu

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end pretemmeer "eatin oo

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had been ineffective,

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pointed pew counsel to represent

oa appeal. ’

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representation

sag | at Haat had ced therein than ia

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ot

the robbery. In

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judgment of

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Ne a Opener vee neers

_*. FITZGERALD v. COM.

rulings of

we dechoe to disturb or

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atrap-

and cut ber throat tence, and we will affirm the

neat 1s

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IN THE SUPREME COURT +3.

OF VIRGINIA ia Pe a

> Ronse A

EDWARD BENTON FITZGERALD, .

Recofd No. A f

Appellant, 811669 *'

ASSIGNMENTS

OF ERROR

Vv.

COMMONWEALTH OF VIRGINIA,

Appellee.

-

) *

i

Appellant, Edward Benton Fitzgerald, by counsel, assigns the

following as errors:

Y. The sentence of death was imposed under the influence of

passion, prejudice, undue influence, and other arbitrary factors. -

—

2. The sentence of death is excessive and disproportionate

to the penalty imposed in similar cases.

is unnecessarily c

3. Imposition of the death penalty by means of electrocu

ruel and is forbidden by the Eighth and Fourteenth

tion

Amendments to the Constitution of the United States.

4. The trail court erred in

admitting into evidence the shoes

of the defendant over his objection in violation of the Fourth, Fifth

and Fourteenth Amendments to the Constitutio

“5

ésrike for cause veniremen Horace Elwin Hackney and Hampd

The trail court erred in

*

»

f Jr. in violation of the Sixth and

d@ States Consitution in that both prospective jurors were not

Unite

impartial triers of fact.

K

cross

— ag

6. The trial court erred in

n of the United States.

refusing Defendant's Motion to

en S. Mann,

Fourteenth Amendments to the

denying defendant the right to

-examine Commonwealth's key witness, Co-defendant Daniel

17a

Johnson about the facts surrounding his prior conviction after the

Commonwealth had questioned him on that matter.

be 7. The trail court erred in admitting into evidence over

defendant's objection during the guilt stage of the trial certain

black and white photographs of the victim's body as well as the

unfettered very graphic prejudicial testimony of the medical

examiner as fo the condition of the victin's body and cause of

death in violation of the Sixth Amendment right to a fair trial.

: 8. The trail court erred in failing to declare a mistrial

following the highly imflommatory and prejudicial testimony of Dr.

“William Massello, State Medical Examiner, during the guilt stage

of the trial.

ls. The trial court erred in admitting into evidence over

defendant's ehjection during the guilt stage of the trial certain

color photographs of the initial crime scene in violation of the

Sixth Amendment right to a fair trial.

: 10. The trial court erred in admitting into evidence over

defendant's objection all items of physical evidence present at the

preliminary hearing in that the chain of custody for those items

was broken when they were left unattended by a police officer in the

Courtroom during the ‘preliminary hearing on March 20, 1981 in the

** General District Court ‘of Chesterfield County.

? 41. the trial court erred in admitting into evidence over the

ie calien of the defendant certain items of physical evidence sent

from the State Central Laboratory in Richmond to the Northern

Laboratory in Merrifield, Virginia for analysis without proper

foundation demonstrating the integrity of the claim of custody.

-_ = mg

* -

Co-defendant whose testimony was beyond reasonable

"a9 NOR iP ORD A RRR I AMIN NN rm

12. The trial court erred in denying the defendant's motion

to strike the Commonwealth's evidence and denfendant's motion to

set aside the verdicts for the following reasons:

(a) the intoxication of the defendant was such as to

negate the specific intent necessary to prove capital or first

degree murder.

(b) oceedis aieteeet evidence.

(c) refusal of granting of defendant's instruction on

abduction and the granting of Coumonwealth 's instruction on the same

crime.

(4) proof was insufficient beyond a reasonable doubt to

that the killing

establish both that Rape and Robbery occurred and

occurred during the commission of robbery or during the commission

of or subsequent to rape and therefore the capital murder conviction,

dependant on proof of either Rape or Robbery should have been set

aside.

(e) there was insufficient proof to show that the

* defendant intended to defile the victim.

_ (£) the Commonwealth's evidence came largely from the

belief.

13. The trial court erred in denying defendant's motion to

poll the jury following their finding of guilt on the capital murder

endictment as to whether or not any panel member had reached a

determination of the punishment to be inflicted upon the defendant

prior to the second stage of the bi furcated proceeding.

14. The imposition of the death penalty upon & finding

the defendant’ s conduct in committing the offense was outrageously

in that it involved torture,

that

er wantonly vile, horrible or inhuman

38 -3-

19a

victim beyond the

‘ depravity of mind and aggravated battery to the

minimum necessary to accomplish the act of murder is an abridgement

of the defendant's Constitutional Rights under the Fifth, Sixth,

Eighth and Fourteénth Amendments, in that there in no ré rational

he capital murder conviction

t a finding of the underlying felony required

horrible

relationship between t ee the death

penalty because withou

by the capital muder statute, no matter how wantonly vile,

or inhuman the dexendant's conduct may be, neither a capital murder

conviction nor the death penalty could be imposed.

15. The trial court erred in denying the defendant's motion to

set aside the punishment imposed by the

defendant had been convicted and sentenc

jury on both the rape and

robbery convictions when the

for capital murder which conviction was dependant on & finding beyond

a reasonable doubt of guilt on either or both rape and robbery, all

of which is in violation of the double jeopardy clause of the Fifth

and Fourteenth Amendments to the Constitution of the United States.

16. In the absence of evidence beyond a reasonable doubt that

the defendant committed either rape oT armed robbery, a conviction

as a murder committed during the commission of

for capital murder

either underlying felony violates the defendant's

from cruel and vnusval punishment

anteed by the

right to due proces

of law and his right to be free

and capriously imposed which rights are guar

to the Constitution.

into evidence at the

arbitrarily

Eighth and Fourteenth Amendments

a7. The trial court erred in admitting

rial over objection by the defendant, color

body of the victim which were

' second stage of the t

photographs of certain areas of the

_ibighly inflammatory and tended to exaggerate and distort the wounds

inflicted. 39

20

oe ” :

error at the defendant's

18. The trial court committed

sentencing hearing in that its comments indicate that it had made

a prior determination to affirm the death sentence imposed by the

jury without consideration of evidence in mitigation presented by

the defendant at this hearing.

EDWARD BENTON FITZGERALD

cae

ounsel

. By

Fred S. Hunt, III

Beddow, Marley, Burgess and Murphey

P. 0. Box 145

Chesterfield, Virginia 23832

Harold W. Burgess, Jr.

Beddow, ~r Burgess and Murphey

P. 0. Box 14

Chesterfield, Virginia 23832

" CERTIFICATE

=e

. entali dey of OR , 1901. 7

Assignments of Error to Robert H.

y General of Virginia, 900 Fidelity

I hereby certify that o

mailed a copy of the foregoing

Anderson, III, Assistant Attorne

Building, 830 East Main Street, Richmond, Virginia 23219.

SASWAS

Zila

*«* & we =

Bee ueuseert et

CRANE - BNEAD & ASSOCIATES, inc.

cous’ eceoareas

e008 & TeOwreon STREET

RICHMOND HIRGrNtA

PHONE 389-4399

940.

to me and I will then further advise you... You”.

em Pd em 4 -—)* & me

“ie : Se

may now retire. -. =" « se

Yoac “anaes =

NOTE:.: The jury~retire to consider their

verdict at 9:15 o'clock a.m. and return at 9:30

o*clock a.m. ‘

fad

ae 2 oe i , oe

THE COURT:. Ladies and gentlemen, have

you reached.a verdict?

JURY FOREMAN?: Yes, sir.

THE COURT: Give it to the Sheriff.

NOTE: The verdict is handed to the Court

5. [Ee COURT: .We, the jury, on the issue

joined, having found the defendant guilty of the

willful, deliberate and premeditated murder of

Patricia Cubbage.in the commission af <==. 38,

“. “oune You didn!t*strike. out the and/or in’ your

@erdict.> Do you understand? Did you make'both-

«~» * on * *

* 7 de

we » ?

findings? sc. <2. 3+ =" ad

-y)s - JURY FOREMAW:. I would strike out the

-.*

~ =

*,™

and. It would’beor. - : fete Sg

‘ . *\.%8Es COURT: What I want to do is to get

you to go back and reconsider your verdict, ~: °

because the.way the instruction is written; you..

have a choice of whether you found one way or the.

22a

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*

ce © & 6 6 G@ 6&6 & 6 OO

BPERBRRE ERA FS KREEESB

941.

other way or both. -.You will all have to decide.

t.am going to allow.you to return and -reconsider |

~ e *

your,’ »verdict again. rr; "gr "2? > i a "4 : * so.1

*

a7ta ‘etecAll xight.. Take the jury back, please.

This is for the whole jury to consider. ,

“4 ‘ e: : =

*. *

A” Lae © Sm Ws : ~ ee mg " 2

MOTE: The jury retire at 9:35 0 "clock

a.m. to further. consider its verdict, and return

at 9342.0' clock a.m, git gr i — Whee opens

to w cs ¢, THE COURTs, Pass the verdict up, please.

First > 2), NOTE: The,verdict is handed to the Court,

-THE COURT:.. All right. The way the _

mem «* .

sre 3 om Poa o & te oe vf +

~ we

yerdict is written, you, have stricken and... ,.

— Fa *

ouk * 4° ¢ SURY FOREMAN: Yes, sir. : hae 2

aie 32°. x, THB.COURTs: Z's necessary for you to

make a determination as to whether or not, one,

‘you, found, At, a threat fo, society or whether you

found that the crime was committed in a wantonly

wile way; and the way the verdict is written,

you have found both. -The way you have it.

, , While armed with a deadly weapon and in

~ wat a

‘4

ws 3. d

the commission of, or, after consideration of his

prior history that there is a probability that he

would commit criminal acts of violence that would

vconstitute a continuing serious threat to society,

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Seep enpeeses weekeaBeHee et ef

—— oe

CRANE - SNEAO & ASSOCIATSS, INC.

COUNT REPORTERS

002 W THOMPSON STREET

RICHMOND VIRGINIA

PRONE 359-4335

942.

"~~

or his conduct in committing' the offense ‘is

outrageously or wantonly vile, ‘horrible > or inhuman

in that it involved ‘torture, depravity ‘of mind and

aggravated battery on the victim beyond the

minimum necessary to accomplish the act of murder,

and having considered the evidence in mitigation

of the offense —-

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 say which one. You would have’té strike

out the paragraph that wa3' involved. ~ So what 1

am saying to you, you have to make an election as

to which one ‘you aid find:that ie aid:**Se"you'- **

understand what I am talking” about?’" “? *! “°4-°%-

Lz . ©) -NJURY FOREMAN: We understand. We nis-

interpreted your instruction; Your Honor,” ~*~’

dhs THE COURT: All right: Fine. Would ~

you like to go back to reconsider ycur verdict?

» 4: - - JURY FOREMAN: “Under these conditions; yes.

SHE COURT: Do you understand? Does each

member of the jury understand what is involved?

You must make a finding of which area he was°* ~~

24a

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tine) cit. . el

ae

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MO AA ALORA A

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al

ent ai eae a a

niceties sensei 2 +.

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Pat § 2 z

se nan a ie ee tap

c as

SwePSPBeRRCT Cee SB ek ES

involved ‘in before you can impose the death penalty

All right. “Go back to the ‘jury roon.

If ‘you need any ‘assistance, Iwill give you further

» * a *

“a4 - Foy, Tie: ano sake a £ 2oiag S2 S35, 62a,

advice.

~ .

- 2 whe tt. > S-sacle «art. 125: 4.05 * a 0

" NOTE: The jury egain retire at 9:45

ast .

o’sieockk a.m. ~*~ *™*

cr 6 4, 2 ae doer

MR. HUNT?' Jadgé, again I would-ask, ‘in

addition to the court polling the jury as to their

individual verdicts} at that time that ‘the court ~

also inguire as to whether ‘any individual juror

discussed this matter with another Juror at the

conciusion of last‘night's-deliberation and prior

to returning this morning to deliberate.

THE ‘court? 3x “don't know whether that “is

a proper question. The last part of your request.

eo *

2-0. owe

Do you have any comment about that?

t-" "* 7° MR. WaTSGN: ' Judge, ‘the Commonwealth

doesn’t think it's proper, either. I don't know

that it is not allowed once they begin deliberation

Well, ‘they may have been asked to deliberate as

a body, not as individuals: J tal

THE COURT: I don't know whether it is

really necessary. I haven't really considered that

A

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CRANE - SNEAD & ASSOCIATES. INC.

| COURT HEPORTERS

208 W THOMPSON STREET

MIC HM OND. VIRGINIA

PHONE 235-4339

944.

oa #4

point befcre myself. ..., —

uj +, Zt may be helpful if we can get, three -..

forms, of. verdict prepared so, they will have the

proper form. They 2an make a finding of both,..one,

or,.the other. Example verdict forms would be the

a

i

best solution. sane -

Stines,-, MR. BUNTs .The form used was the

' statutory form, Your Honor. , yee:

7a THE COURT: That's right. But it must

be applicable to the evidence. ©. 2. 2.cimas-

The finding must be made by .the .jury, . too

It must be a finding made by the jury- The form

of the verdict is determined from what they do

find, what the decision is. ... :: ¢+ asthe tout

~

Ye:

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sa: 4s. cy THE COURT: The jury verdict is: We,

ore Se

the jury, on the issue joined, having found the

@efendant guilty of. the willful, deliberate and

premeditated murder of Patricia Cubbage in the

commission of robbery while armed with a deadly

weapon and.in the commission of, or subsequent to,

raped and having found that, his conduct in

committing the offense is outrageously .or wantonly

NOTE: The jury return at 9:55 o'clock a.

26a

CRANE - GNEAD & ASSOCIATES, INC.

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vile, horrible of inhuman in that it involved ve

torture, depravity or mind and aggravated battery

£ 2

© 3 to the victis beyond the ninjaum necessary to

> ‘ accomplish the act of murder and having considered

4 5 the evidence in mitigation of the offense,

* 6 unanimously fix his punishment at death. Signed

t 7 Stephen Lancashire, foreman.

6 ~ sa , Ladies and gentlemen, is this your

2 9 verdict? — Coote Fs

of 10 NOTE: The jurors reply in the affirmati

it u - ~He courT: If wish to poll the jury.

™ 12 ann Love, is this your verdict?

ti 13 ANN LOVE: Yes, sir, - oe

al 14 THE COURT: Jeanette Stone,-isthis your

a 8 werdiatt “ht. Rt Toe HE mt '

i. 3 6 JEANBTTE. STONES: Yes, Sites: = 2 tre

e 3 "7 SHE COURT: Herbert Irvin Dowdy, is

7 : 18 this aes qentise® istaeice 63s 38

el r 19 . DOWDY: Yess give. Seterc. b: <8

Cc . 2 ) THE COURT: Paul EB. Campbell, is this

; & = your verdict? / oo he

§ 22 PAUL BE. CAMPBELL: Yes, Your Honor. -..

zt 24 “que COURT: Stephen Lancashire, is. this

_ “ your verdict?: ne ‘ eed

c& 2% * STEPHEN LANCASHIRE: Yes,. sir. =

“ge.

27a

Ln CULE LI LLP T NIE TE Ace,

Instruction Ko. ¢/

We, the Jury, on the issue joined, having found the defendant guilty of

the willful, deliberate and premeditated murder of Pateicia Cubbage in the

comission of robbery while armed with a deadly weapon and in the commission

of, or subsequent to, rape and having found that,

after-conetdezation of his prior history th: is a probability that

he would commit criminal acts © “that —

serious threat ‘

his conduct in committing the offense is outrageously or wantonly vile,

horrible or inhuman in that it involved (torgure), (depravity of mind) (and)

(aggravated battery to the victim) beyond the minimum necessary to accomplish

the act of murder and having considered the evidence in mitigation of the

offense; unanimously fix his punishment at death. :

Pega

’

or

secre

We, the Jury, on the iesue joined, having found the defefidant guilty of

the willful, deliberate and premeditated murder of PF icia Cubdage in the

commission of robbery while arwed vith « dea weapon and in the commission

of, or subsequent to, rape and having idered all of the evidence in

aggravation and mitigation -— fix his punishment at imprisonment

for life.

18a

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SS AE LEE EE! AOA

CRANE - SNEAD & ASSOCIATES, INC.

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23.

your case can either find. you guilty’and sentence you?

If you are found guilty, it can sentence you to death

or life imprisonment?": ~<--. ae

THE DEPENDANT: <Yes;-sirs~ "372 +" waslere hn:

“<< * GH8°COURT:°: Do you fully understand that ?-

. TRE DEFENDANT: Yes, sir-

HS COURT: ‘Do you understand that also you

are entitled to a jury trial of all’ these issues?: <-

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THE COURT: - You are entitled to a separate

trial on each of these issues, do you understand’ that 7

7 vt TES DEPENDANT: Yes, sir.

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éourt appointed attorney?

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THE COURT: Onespecifioc thing I‘want-to make

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you understant that one of your court ‘appointed = —_

attorneys" wife works for the Conbonwealth Attorney's

Office as Adninistrator? te, £35 is ? ey

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Court REPORTERS

08 mH THOMPSON STREET

R.CHMOND VIRGINIA

PHONE 399-4323

24.

Assistant to-the Commonwealth Attorney's Office. Is

this ‘the first time you have ever known that?

mak DEPENDANT: ““Yes;“sir.”* °° “? ral toe:

of¢tut> ne Counts’ “Y want to ‘make sure you" understand

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get cougTé Also,2f’you plead guilty, you

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. 30a

i

| VIRGINIA:

| IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD

|

COMMONWEALTH

vs.

EDWARD RENTON FITZGERALD

Motion for Removal of Court-Appointed Counsel

Comes now the defendant, Edward Benton Fitzgecald, in person

and his court-appointed counsel, Fred S. Hunt, II end Harold W.

are, Jr. upon the motion of the —— that his court-appointed

eee be removed from his case now on appeal to the Virginia Supreme

Court because the defendant is dissatisfied with the representation

afforded him by this counsel, as is shown by the attached copy of

correspondence from defendant to his counsel.

Alben te Zrppl 6.

lk Benton Fitzgerald” ~

a

Fred S. Hunt, Ul

Harold W. Burgess, Jr.

Beddow, Marley, Burgess & Murphey

Post Office Box 145

Chesterfield, Virginia 23832

3la

sees A me amen a! wer 7

ee ds te ye. Eo Bo Piteseralé Ore

é 12556L

Box 500

JUDSE + GATES Boydton Va. 23917

Box 7

Chesterfield Va. 23332

JUDGE GATES:

I was convicted and sentenced to PATH by you an

Septeaber 19816

I write this letter at this tine asking that the

court - appointed lawyers , Hunt & Burgess , >be renoved from ty

case and be replaced with lavyers that woulé defend xy

intrest. ¥ ®

I em completely unsatisfied with the defence these

lawyers gave me during trial and refuse to meet with ther

or eppear in any court of lax with then ss counsel.

Subscribed and Sworn to me

this £2 Gay of Doe. 1981

notary public

my comzision expires Chane 9192

32a

EB. Fit: ralé ore

g 12556;

Box $00

BoyGion Vae 23917

Yarold W. Burgeso Jr,

Attorney at Lav

Box %h5

Chesterfeilé Ya. 23532

Dear Siz:

I xoopectfuly ask that you v: yemoved fron

axl. % ask that you notify Juiyo Gates. ani / or.

any party intorrested «+

Ac of DSCEMBER ONS NINTSEA EUMURE) BIGITY OX5

Z vill refuse to mest vith you or appear in a court of

lav with you as cy ilavyer.

- I am aleo notifing Juige Gates ani the

Att. Generale office.

po 5/7

EDVARD B. FITZ

Subscribe@ and fS-ornes to before

re tats 2. aay ot L22.:1981

noteny reste Cilabesd $ Booger

wy comuison expires Dum G Tate”

o~ Application

for

EXTENSION OF TIME TO FILE

PETITION FOR CERTIORARI

(CAPITAL CASE)

O.T. 19 ®

A-404

DATE MEMORANDUM

_§.10/29/82. | Filed

11/1/82 Granted until December 8, 1982 by Burger, CJ.

O )

Orrice CF THE CLERK

SUPREME COURT OF THE UNITED STATES

, WASHINGTON. 0. C. 20643

November 2, 1982

Bradley S. Stetler, Esq.

Graber, Stetler & Townsend

Suite 202

419 Seventh Street, N. W.

Washington, DC 20004

RE: Edward B. Fitzgerald v.

virginia

Dear Mr. Stetler:

Your application for an extension of time within which

to file « petition for a writ of certiorari in the above-

entitled case has been presented to the Chief Justice, who

on November 1, 1982, signed an order extending your time to

and including December 5, 1982.

A copy of the Chief Justice's order is enclosed.

Very truly yours,

ALEXANDER L. STEVAS, Clerk

By

Katherine A. Downs

Assistant Clerk

rjb

encl.

ec(letter only): Peter J. Murtha, Esq.

Robert Anderson, Esq.

Allen L. Lucy, Esq., Clerk, Supreme Court of

Virginia (Your No. 811669)

elem aE NORE ge tana AAA eA

i}

OFFICE OF THE CLERK

Ocroszn Team, 19.82

Arrucation No. 404

ee eke ee C4 REET O SERENE EE EEO eee

CROCE EERE ERON SHEERS NEES EET EEE!

**

eeeeeeee er Few

to Supreme Court. of. Virginia

eeceeeetaeereere &

Time expires: _ Movember. A,.1982......-..---

__ Pecabax Pa. BMSZ........ceccecseres ee

Reason: .... Counsel. just. agreed .to.....-.--

represent. petitioner. after. the. decision

of. the, Va.. .Supreme. Court...He received.

the record 5 weeks ago and has not had

eufficient .time. to. review it because -of

other professional commitments.

October 29, 1982 xatherine Downs

SEH ER ACH RECA H EEC HE REE E ES

even eeeeeereeeree

Supreme Court of the United States

No. A-404

EDWARD B. FITZGERALD

Petitioner,

v.

VIRGINIA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Uron Consmperation of the application of counsel for petitioner(s},

Ir Is. Onpenen that the time for filing a petition for writ of certiorari in the

above-entitled cause be, and the same is hereby, extended to and including

, 1082 .

an 2S

day ot Lovicbeet 19-22

RECEIVED

SUPREME COURT OF THE UNITED] SRE Se tHe Curr

SuPREME CouRT, US,

EDWARD B. FITZGERALD, :

Petitioner, :

:

Ve :

3

COMMONWEALTH OF VIRGINIA, g

Respondent. H

APPLICATION FOR EXTENSION OF TIME

IN WHICH TO FILE PETITION

FOR WRIT OF CERTIORARI

To the Honorable Warren E. Burger, Chief Justice of

the Supreme Court of the United States and Circuit Justice for

the Fourth Circuit.

Petitioner Edward B. Fitzgerald respectfully requests

that an Order be entere*. pursuant to Rule 20.6 of the Rules of

the Court, extending the time for filing a petition for writ of

certiorari in the Supreme Court of the United States in the

above-styled action by thirty (30) days to and including

December 9, 1982. In conformity with Rule 29.2cf the Rules of

the Court, this application is being filed more than ten (10)

days prior to the date upon which the petition is now due.

1, The dates pertinent to this application are as

follows:

A. On June 18, 1982, the Supreme Court of Virginia

issued an opinion affirming petitioner's convictions for murder,

armed robbery, rape, abduction and common law burglary.

appended as exhibit “A").

Fitzgerald v. Commonwealth, (opinion

Petitioner's motion for rehearing was denied on Septemoer 9,

1982.

B. On November 9, 1982, the time for filing a

petition for writ of certiorari will expire, unless extended.

2. Jurisdiction of this court is invoked under 28

U.S.C. 8 1257(3), petitioner having asserted below and intending

to here assert deprivation of rights secured by the Constitution

of the United States.

3. Briefly, this case may be stated as follows.

after a jury trial in the Circuit Court of Chesterfield County

petitioner was found guilty of murder and other offenses and

sentenced to death.

4. Petitioner appealed to the Supreme Court of Vir~

ginia claiming that his convictions and sentence were illegal

and unconstitutional on numerous grounds. Petitioner claims

in this court that the the Supreme Court of Virginia in his

case misconstrued this court's teaching in Godfrey v. Georgia,

446 U.S. 420 (1980), inter alia, that consideration of the

death penalty be guided by clear and objective standards.

5. Petitioner also believes that his right to an

impartial jury was violated by the trial court's refusal to

strike for cause several jurors who expressed an intention to

impose the penalty of death regardless of the facts adduced in

mitigation of the offense. Further, petitioner contends that

he was denied the effective assistance of counsel as his court~-

appointed counsel in this capital case had an inherent conflict

of interest, to wit: his wife, befcre and during trial, was

employed in the office of petitioner's prosecutor.

6. By opinion dated June 18, 1982, the Supreme Court

of Virginia rejected the above contentions as well as others.

7. Current counsel verbally agreed to represent

petitioner only after his appeal to the Supreme Court of Virginia

had been denied. Counsel has been in possession of the record

but five weeks at this writing. Due to substantial committments

to local District of Columbia and virginia practice and other

primary employment, counsel has as yet been unable to provide

the attention necessary for proper presentation of this case.

8. Counsel is certain that the requested thirty (30)

day extension to December 9, 1982, will provide sufficient time

to prepare the petition.

WHEREFORE, petitioner respectfully requests that the

the time for filing his petition for writ of certiorari be

extended to and including December 9, 1982.

Respectfully submitted,

EDWARD B. FITZGERALD,

By Counsel

Mud

PETER J.

233 Tenth Street, N.E.

Washington, D.C. 20002

(202) 362-2521

Suite 202

419 Seventh Street, K.¥.

Washington, D.C. 20004

(202} 638-4798 Dated: October 28, 1982

Certificate of Service

I, Bradley S. Stetler, hereby certify that one true

and accurate copy of the foregoing Application For Extension of

Time In Which To File Petition For Writ of Certiorari was mailed,

postage pre-paid to Robert Anderson, Office of the Attorney

General, Supreme Court Building, Richmond, Virginia, 23219, this

28th day of October, 1982.

BRADLEY S. STETLER