# Appendix — Fitzgerald v. Virginia

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1344%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1228

## Text

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
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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

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jb welll al at : HE ii i (ly
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ea HU aN CAE
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‘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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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

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ae i Ht ilk THE ie Lit,
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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
ce
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= a FT AE
Ha au ray in i :

TN
fi! ill ya! HT Hi al aid , Hi

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ars . = ld ¥
Py |

Ta
Tenet
i

modified the murder statutes is

HH.
ili

a

'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
Eau

end pretemmeer "eatin oo

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aa.
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had been ineffective,

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Hitt HH une hl li ei

ng sata
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pointed pew counsel to represent
oa appeal. ’

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st

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ot

the robbery. In

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judgment of

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o*

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 Do you understand? Did you make'both-

«~» * on * *
* 7 de
we » ?

findings? sc. 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,

eit
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23a

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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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onl RS

tine) cit. . el

ae
—- -

MO AA ALORA A

‘
al

ent ai eae a a
niceties sensei 2 +.
*
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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See Cee Se eS

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:
g::

a

, | “ ‘ 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: Mr. Hunt's wife is Acninistrative

*

‘ i a A RE gy a EE

29a

A AML ANE OE

”

rd *-*.
gawd
“

i

« * PF ow
Z oo ne Counts’ “Y want to ‘make sure you" understand
before the case is started: aa Se
tchat"esechetalet? ~" * * Jo

* Taz DEPENDANT: Yes, sir.

THE COURT: You have all the available wit-
nesses that-you think you should have? ** “© © ° nseae

ci°2t “gue peeenmants “t'nope so. = 7 7

‘tS. 9 mg COURT: are you satisfied with the servi¢es

i

of your attorney? °°

THE DEPENDANT: Yes, sir. '
‘LP qute"CourT: We will go forward, and'I'want tc
make sure ‘that you understand that if you plead not
guilty, you are entitled to a tio trial and-a separate

= ” ee # sf cee yet Ft
*. 3 ©". ian ‘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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1344%3A2. Public record. Not legal advice.