*1 Riсhmond B. FITZGERALD EDWARD BASS, Warden GARY Center Mecklenburg Correctional No. 0511-85 March Decided *3 Counsel Murtha; Stetler, J. for appellant.
Peter S. Bradley General Anderson, III, Attorney Robert H. Assistant General, Broaddus, brief), appellee. (William Attorney G. Opinion
ON REHEARING EN BANC
—
KEENAN, J.
Edward Fitzgerald
from the denial of his
appeals
for a
petition
writ
The issues we address
corpus.
(1)
are:
whether
Fitzgerald
denied an
improperly
evidentiary hearing
claims;
on certain
(2) whether the
wit
prosecution
ness,
Caviness,
and,
Wilbur
of due
deprived Fitzgerald
process;
(3)
Fitzgerald
whether
was denied effective assistance of counsel.1
We dismiss that
part
which deals
appeal
with his
murder
capital
conviction because under our jurisdictional stat
utes,
Bass,
314, 318,
as
in Peterson v.
interpreted
Va. App.
475, 478,
banc,
S.E.2d
'd en
3 Va.
I. The facts of this case are detailеd in the Court’s opin ion affirming Fitzgerald’s convictions on direct review. Fitzgerald 621-26, 292 S.E.2d 801-04 denied, (1982), cert. U.S. 1228 a brief recita Only tion is here. necessary of a code Primarily through fendant, Johnson, Caviness, inmate, Daniel and a fellow Wilbur abducted, Commonwealth established raped, robbed, and murdered Patricia Cubbage.
The evening these began Cubbage, events took John- place son, Fitzgerald and marijuana others beer and drinking smoking at Fitzgerald’s apartment. Cubbage group left the eventually went home. Johnson and of David Fitzgerald went to the home *4 who was Bradley, a friend of Johnson testified that Fitzgerald’s. upon home, the leaving Bradley Fitzgerald suggested they go to the home of another in breaking friend for the of and purpose 7, 1987, July Fitzger panel On this Court affirmed the trial court’s denial petition ald’s corpus. A App. a writ of habeas 358 S.E.2d dissenting opinion regard prose panel’s was filed with decision that the witness, Caviness, Fitzgerald cution deprive process Wilbur Pursuant did not of due of law. 17-116.02(D), to Code this Court convened to that issue. § en banc considеr home, when stealing was and drugs. Cubbage staying There, in, bedroom. upstairs broke he ran her Fitzgerald her the and beat He then forced from Fitzgerald Cubbage. raped car, the her taking house into the purse process. drove remote area where Fitzgerald Cubbage Johnson and forcing from car some After she taken into woods. killed re- Cubbage engage Fitzgerald in oral her sodomy, Wilbur her with a machete. He later told peatedly striking Caviness, Jail, in the that he County a fellow inmate Chesterfield and murdered because she had “snitched” on him. raped Cubbage tes- Detective William Shuman of the Richmond Bureau Police tified that worked for him and that Cubbage had as an informant another word for informant was “snitch.” murder, convicted armed rob- Fitzgerald
The jury capital defile, abduction with bery, rape, Upon intent burglary. finding Fitzgerald’s conduct met the vileness standard 19.2-264.4(C), Code the death jury penalty recommended § remaining for the murder conviction. For each of the con- capital victions, recommended The trial court jury life imprisonment. Court of imposed jury Virginia sentences at 292 S.E.2d Fitzgerald, affirmed the convictions. Va. 813. Fitzgerald then filed a for a writ of habeas corpus petition the circuit An of particulars court. amended and a bill petition were also After evi- taking filed. but without hearing argument, dence, the on court dismissed the claims majority Fitzgerald’s direct grounds that had been determined on they previously on appeal. had been failure to raise them appeal, waived Later, evidentiary court motion for an Fitzgerald’s denied codefendant, Johnson, had hearing on his Daniel allegation that aof knowledge failed to disclose to extent of his full agreement behalf with plea being negotiated Commonwealth. 21-22, consider
A hearing was held on June plenary 26, 1985, the the remainder of claims. On February of fact findings court issued a its comprehensive opinion stating Fitzgerald and conclusions of law. The court found that Accord- of counsel. been denied due or effective assistance process It from this order ingly, dеnied. petition *5 appeals. DENIAL OF EVIDENTIARY
II. HEARING Daniel Johnson was a in codefendant these cases. He testified had discussed the with his Richard charges attorney, Ryder, advised him to Johnson Ryder testify truthfully. further testified that he had been in return promised anything for his and that had not discussed with him testimony, Ryder what might be in return for his expected testimony. cross-examination,
On following took colloquy place: Q. You know there is no chance of to the you going electric case, if
chair in this you testify don’t you? No, sir,
A. I don’t know that. Q. You mean to tell the are in here jury you coming today
and confessing to in your the crime and implication you don’t have any going idea how case is to be your disposed of? No, sir,
A. I don’t have idea it how will be of. disposed Q. Did your advise attorney you here testify today? Yes, sir, A. he did.
The next day prosecutor called as a witness. Prior to Ryder so, doing court, informed the prosecutor out of presence the jury, that discussions had regarding taken place Ryder Johnson’s case. The should told the court that the prosecutor jury be informed of these discussions so that there would be no misun- derstanding Johnson’s before testimony. Ryder then testified the jury that he had discussed Johnson’s possible disposition case with the but that he had not talked cross-examination, Johnson about it. On stated: Ryder “[T]he Commonwealth has if would come in court and agreed client my seek, testify to the truth that the Commonwealth would Attorney worst, would my degree convict client of first murder and recommend to the court that the maximum sentence client my to is subjected years the penitentiary.” that Johnson and in his habeas petition Fitzgerald alleged knowledge of Johnson’s the extent misstated Ryder an evidentiary court refused to conduct negotiations. the plea Code on the record. dismissing it allegation, on this hearing § with the Common agreed court 8.01-654(B)(4). doing, In so jus sufficient facts to failed to set forth allegation wealth that is that Virginia The rule hearing. an tify evidentiary which, true, if would facts allege must sufficient corpus petitions *6 Court advanced. As the conclusion of law support 367, 370-71, 601 49 S.E.2d Smyth, stated in Penn will not suf of the pleader “mere conclusions or (1948), opinions case.” fice to make out a attor-, his Johnson and
Here, essentially alleged the petition took advan- that the Commonwealth committed ney perjury argues it. Fitzgerald of this to correct tage failing perjury by States, (1972), 155 he under v. United Giglio understandings or agreements to have the know what entitled He further ar- Commonwealth. existed between Johnson and the the full ex- to disclose that Johnson and his failed gues attorney Commonwealth, and understanding tent of Johnson’s his right restriction on amounted to an improper that this failure F.2d Maryland, Hoover of cross-examination. (4th 1983). Cir. upon of law relied
While we with the agree principles as supple- the habeas agree petition, we do not Fitzgerald, hearing mented, evidentiary an justify facts to set forth sufficient Fitz- than nothing more stated Initially, petition on his claim. filed. For conclusions, affidavits nor were any supporting gerald’s that he stated for a hearing, in his motion example, Mr. will establish was “in of evidence which possession of the plea his knowledge about Johnson testified untruthfully of this came into possession agreement. (Fitzgerald) . .[and] witness witness.” had with a evidence interview he through an the witness’s identified, was not nor was a proffer made to the court. alleg- facts”
Later, “statement following Fitzgerald filed claim: of this the substance edly establishing Johnson, Daniel L. his knew through that a attorney, plea agreement on his behalf. He knew that being negotiated the discussions between his and the Commonwealth attorney involved his against exchange cooperation petitioner year of a 40 sentence the Court. Mr. John- imposition son with his attorney possibility having discussed of the 40 Mr. Johnson was aware of years years suspended. these discussions his sentence or less possible year against to his prior petitioner. after the court for an
Finally, denied request evidentiary filed hearing, Fitzgerald a motion to reconsider in which he re- vealed for the first time that his claim was based information upon given Daniel Johnson at the St. Bride’s Correc- attorney by tional Center. The court denied the mоtion to reconsider.
In none of his various to this claim did allegations pertaining Fitzgerald contend that the Commonwealth was aware of Further, Johnson’s alleged he never that the court perjury. alleged restricted improperly cross-examination on this Without subject. such allegations, Fitzgerald failed to set out a facie viola- prima tion of the rule stated in either Hoover. Giglio
In Giglio, the Court stated that “deliberate decep tion of a court and jurors the of known false evi presentation dence is with demands of incompatible ‘rudimentary jus State, tice. . same although result obtains when the .[and] [t]he evidence, not soliciting false allows it to uncorrected when it go ” appears.’ (citations omitted). at 153 Applying rule, the Court found that the had to allowed prosecution believe that a government key any witness had not been promised when, fact, in thing return for his an Assistant U.S. had Attorney the witness. the as promised immunity Although to sistant who tried the case did not immunity promise, know of the the Court office. attributed of the to the entire knowledge promise Id. at 154. It is from of the false knowledge apparent Giglio constructive, even if decision testimony, was crucial to the Court’s to reverse the conviction. Hoover, because the court of reversed appeals a conviction
the trial counsel judge limited the to which unduly extent could cross-examine an regarding a crucial government witness court
immunity The stated: agreement. into inquiry This sustained and effective refusal permit bargain subjective understanding of [the witness’] bounds government beyond the constitutional stepped discretion, abridged trial the fundamental court’s to confront witnesses secured to Hoover right adverse fourteenth amendment.
These do establish basis for government ered of a witness constitutes a perjury Such a motion a timely habeas relief. claim a may support trial, or new unless the knew of perjury, but Commonwealth witness, court no effective cross-examination prevented no for habeas relief denial due has occurred and basis process Palmer, 159, 163, As stated 93 Va. S.E. Lacey exists. 930, is (1896): office of the writ of habeas not corpus “[T]he guilt prisoner. only to determine the or innocence of the issue which it is or is restrained of his presents prisoner whether not Further, well due of law.” it is settled that liberty by process function of an ap cannot be used “to corpus perform error, errors, revise review or or modify writ of peal juris conviction a court of judgment of pronounced by competent diction. It can not determination judicial be used secure which, favor, if in the any question prisoner’s even determined de custody could affect the lawfulness of his immediate 101 S.E.2d Smyth tention.” Midgett, record, allegations, nothing Fitzgerald’s There or in advantage indicate took prosecutor perjured best, At or that court restricted cross-examination. improperly evidence newly-discovered stated a claim petition *8 however, This, is a witness. affecting government of credibility detention, does not unrelated to the of Fitzgerald’s legality thеrefore, err in court, did state a basis for relief. The dismissing hearing. this claim without TESTIMONY OF III. WILBUR CAVINESS Wilbur Caviness was an inmate of the Chesterfield Jail County during incarceration. period Caviness testified at trial that in jail, while confessed to him that he raped and murdered Patricia Cubbage. Fitzgerald argues that use of Caviness’ denied him of law process due because the Commonwealth failed to disclose certain evidence which could have been used to impeach Caviness. Specifically, Fitzgerald con- information, tends that despite request such the Common- wealth failed to disclose that Caviness had been twice convicted of sodomy Norfolk and was on for such probation crimes when he testified against Fitzgerald; that Caviness had various misde- meanor convictions involving moral that he had turpitude; two pending felony charges Henrico County; he was a paid informant for the State Police on cases not involving Fitzgerald; and that he was reimbursed for expenses connected with his testimony.
The record reveals that
to trial defense counsel
prior
requested,
pursuant to
Brady Maryland,
(1963),
The Commonwealth that it was to ascertain responded “unable what may affect the credibility of the Commonwealth’s witnesses.” The Commonwealth further responded:
These are matters counsel must While contend with at trial. some courts recognize the is met requirement materiality where the would only evidence affect the of wit- credibility nesses, Virginia not one of those . . . While this courts. may not be an attempt ascertain names Common- witnesses, wealth’s it would amount to an indirect approach to that which cannot be directly.
48 error2; how clearly
The in Commonwealth’s response ever, to the Com rejeсt did not the trial court Fitzgerald request was made to obtain attempt and no further monwealth’s position evidence. The court below ruled that impeachment trial, to object prior failure to to the Commonwealth’s position review. consideration of the issue on habeas precluded on appeal, agree. We
This is where the Commonwealth responded not situation Fail was not in evidence. falsely exculpatory that it possession to bar habeas review since object ure to such a would not response would reason to believe that the Com counsel have no ordinarily fact, Here, was, in the Com withholding monwealth evidence. evidence monwealth essentially responded impeachment not had to chal subject discovery. Fitzgerald every opportunity in failed to do lenge the Commonwealth’s but position regard, trial, so. Fitz Having response the Commonwealth’s accepted it first review. As gerald may not contest for the time on habeas above, Slayton stаted is not a substitute for corpus appeal. 29-30, 680, 27, (1974), v. 215 205 S.E.2d 682 cert. Va. Parrigan, 491, denied, 1 (1975); 419 v. Va. Rogers, App. U.S. 1108 Crank 495, 909, (1986). 339 S.E.2d 912 on the
Fitzgerald
objects
further
of Caviness
testimony
testimony
that the Commonwealth failed to correct certain
ground
II,
Com-
that was
As
supra,
false.
discussed
Section
to secure a
monwealth
on false
may
knowingly rely
conviction,
or simply
whether such
is
solicited
actively
405
at 154-55.
go
Giglio,
allowed to
uncorrected.
U.S.
States v.
States v.
used
omitted);
policy
discovery
Brady
fendants. See
tion
cert.
[2]
exists, however,
denied,
effectively,
against providing
rule. Such
Commonwealth’s
“[I]mpeachment
v.
see Dozier in a criminal
Kendall,
Bagley,
420
Bellfield
it
U.S. evidence is ‘evidence favorable
[473]
may
for evidence which
U.S.
case.
Commonwealth,
F.2d 1426,
lists of
Attorney
make
evidence ...
(1975).
667,
Weatherford
prosecution
[676]
seems to have confused the above
It is true that
difference
(1985)(quoting
as well as
(10th
n court found while that there were inaccuracies in testi- Caviness’ the mony, Commonwealth had or no actual constructive knowl- edge of these inaccuracies. The court further found that mis- statements made were by Caviness the result innocent misunderstandings on his rather part perjury. Finally, than the court found that even if the or Commonwealth had actual con- structive knowledge of the inaccuracies in testimony, Caviness’ Fitzgerald had failed to establish sufficient or materiality prejudice a new trial. require
We the of the that Caviness accept findings factual lower court did not and no commit the had ac- perjury that Commonwealth tual of his knowledge Caviness misstated certain aspects 112, 109, See criminal Nolan v. 208 155 history. Peyton, Va. 318, Warden, 30, 26, S.E.2d 321 332 (1967); Abney v. 1 Va. App. 802, however, S.E.2d 804 Such findings, dispose do not intentionally contention. Caviness Regardless whether or unintentionally did not misstated his criminal history, jury 3 regarding There is some сonfusion in the Caviness record this statement. testified hearing entering breaking his reference to a at trial related conviction charge imprisoned Fitzgerald. for which he On this was at the time talked to However, charge, ultimately petit larceny. Caviness it convicted of the misdemeanor appears breaking entering from the record that Caviness was convicted of in Richmond in 1974. 50 truth, which is the it of the testimony
hear the
is
truth
concern,
As stated
not
state mind
the witness.
relevant
1457,
(11th
1986):
Cir.
785 F.2d
Wainwright,
Brown v.
might
the realities of what
“The
concerns address
constitutional
is
con-
entitled to
induce witness to
and the
testify falsely,
a
in assessing
sider those realities
credibility.”
Further,
that tes
knowledge
of actual
lack
prosecutor’s
dis
excuse his failure to
timony
automatically
is false does not
Thus,
witness falsely
where a
testified
Giglio,
close the truth.
in return
had told him he would
nobody
prosecuted
no
assigned
significance
Court
testimony,
such
knowledge
lack of
prosecutor’s
promise
actual
The Court
been made
different
in the same office.
attorney
negligence
stated: “Whether the nondisclosure
a result of
design,
prosecutor’s
it
responsibility
prosecutor.
office
it
for the Govern
spokesman
is an
and as such
is the
entity
ment.”
We no in the the habeas court that one accept finding by record; however, office knew of Caviness’ criminal prosecutor’s where knowledge prosecutor constructive is also attributed to United States the information is possession police. Jackson, (7th 1986); 780 F.2d 1308 n.2 Cir. Wedra denied, Thomas, Cir.), cert. (2nd F.2d 717-18 n.1 Auten, (5th F.2d (1982); U.S. 1109 United States v. *11 Warden, 842, 844, (4th 846 Cir. 1980); Cir. Barbee v. 331 F.2d hand, 1964). has not been knowledge On the other constructive inwas posses attributed to the where the information prosecutor United sion of jurisdictions. law enforcement officials of different Walker, de (11th 1983), 720 Cir. cert. States v. F.2d 1535 nied, not attrib (1984) of state officials (knowledge Lawrenson, F.2d uted to federal United States v. prosecutor); (4th Cir. 1962). record, case, his this about criminal falsely Caviness testified of the knowledge no but the Commonwealth’s had actual attorney Common- whether the We must decide falsity testimony. false. that the wealth’s should have known attorney First, the he told Two made Caviness are in issue. statements by had fact he when in conviction jury that he had one prior felony charges no Second, he had pending three. that he told the larceny charges.4 when in fact he had two grand pending The Commonwealth that since the undisclosed convic- argues tions the County, occurred outside Chesterfield charges should not be jurisdiction Commonwealth’s attorney with them. would charged knowledge argues prosecutors It be overburdened such disagree. We requirement.
Caviness’ criminal to Chester- readily record was available the field team prosecution through Virginia Criminal Information Network It at the computer. hearing was established the Chesterfield County attorney’s Commonwealth’s office ac- Hines, cess this system through department. Donald police Assistant Commonwealth’s and member Chesterfield attorney team, “I can prosecution go testified: Chesterfield Police out a form and County Department fill back receive central . . exchange criminal records form . [a] printout almost immediate on the central criminal [and] records exchange.” Watson,
Charles Commonwealth’s for Chesterfield Attorney was asked at County, hearing the habeas whether his office would have been able to run a check record of Caviness’ criminal through He system. “Certainly.” this admit- replied, Despite ted both capability, acknowledged Watson Hines that no such check was attempted. Watson’s Apparently, only inquiry Caviness regarding through criminal record was we “are you?” (referring Caviness breaking charge and entering was serving time for in the Chesterfield Jail the time he en- countered Fitzgerald). of Caviness’ rec- Regarding availability ord, Hines (sic) on acknowledged “most it occurred probably the computer at the time I do not and would have been available. know for a fact because I did not check.” run record
We do not believe that an unreasonable burden is imposed if Commonwealth criminal record of required discover the only Although These are the two were he statements made Caviness that false. initially any involving turpi stated that did not have misdemeanor convictions moral tude, prosecutor rephrased such question him he had con and asked whether sir, that, responded, yes victions. something Caviness then sir.” This “Yes I have had like misleading inquired not a false or as to the statement. counsel have Defense could *12 convictions, number and nature of such v. Common but declined do so. See Hackman wealth, 714, 710, 555, 261 S.E.2d 559 52 is witnesses, readily such information availa- when
its especially in ad- when the knows prosecution true ble. This is particularly background. criminal In present witness has a vance that the case, breaking entering Caviness on the Hines had prosecuted an He knew that Caviness had in Chesterfield. further charge Virginia for the State Police. an informant relationship as ongoing hearing: big was no secret As Hines stated at the “[I]t He community. of the criminal Mr. Caviness was member that Indeed, Jail. time in the Chesterfield County had done Fitzgerald.” where mеt Eddie im- acknowledged ruling its Giglio, Court im- to the entire office would prosecutor the actions one
puting
stated, however,
“procedures
a burden. The Court
pose
burden and to insure
regulations
carry
can be established to
on each
to every
communication of all relevant information
case
with it.”
“
. .
an
Brady
obliga-
‘The
is .
that there is
basic
import
tion
certain evi-
produce
part
prosecution
dence
in its
or
constructively
accessible
actually
possession
to it in the
fairness’ ...
If disclosure
interests of inherent
has
were excused in
where the prosecution
instances
it, we would be
sought
readily
out information
available to
unworthy
rep-
on conduct
inviting
premium
placing
resentatives of the United States Government.”
(5th
Calley
Callawаy,
Id. at 481
F.2d
(quoting
denied,
1975),
(1976)).
Cir.
cert.
[W]e of the incrimi- evidence, nating to compared that of contradicting evidence. We shall then focus on the thrust of Carita’s testimony, extent to which he trial, had been subject to impeachment at and the extent to which he would have been rendered more vulnerable had the full of his story understanding sheriff been revealed. we shall Finally, have to determine whether any such additional could in rea- vulnerability any sonable likelihood have caused the jury bring in a verdict of not guilty.
Id. at 1115-16. this
Applying
approach
case,
note
present
initially
we
that Caviness’ testimony related
to the
only
(and the
rape charge
5 The
suggested
Commonwealth has
appropriate
that the
standard is whether there
is “a
probability
defense,
reasonable
that had the evidence been disclosed
the result
proceeding
would have
Bagley,
been different.” United States v.
U.S.
(1985);
142, 151,
Robinson v.
This
S.E.2d
standard
material,
Brady
fashioned
the Court
to deal with
non-disclosure
whether or
requested
not the
request
defense has
such
disclosure
whether
such
general
specific.
While
Bagley
inapplicable
presented
we do not find that
to the issue
here,
rely
we
Giglio
elect to
presented
closely
parallel
because the facts
before us more
Giglio.
those in
As to the rape
offense
not involved
charge
appeal).
capital
Fitzgerald
heard from Johnson that
accosted
charge,
jury
bedroom,
the covers off her and
Cubbage
pulled
in her
Patricia
good
good
“I
fuck and a
always
said:
have
heard that
were
you
I
find out.” Johnson observed that
going
of ass and
am
piece
testified that
crawled onto the
Cubbage
was nude. He
bed,
his thighs.
his
them down to
unzipped
pants
pulled
Cubbage
but he said that he heard
away,
Johnson then turned
I
in.”
saw
“I am on
have a
Johnson later
say:
my
tampon
period.
bed,
began
on the side of the
but he stated that
tampon
away.
feel sick аnd turned
He heard the bed squeaking
Cubbage
hard. He testified that when he next looked
breathing
say
bed
and heard him
Fitzgerald pulling
pants up
he saw
not worth a
also heard
Cubbage:
“You are
fuck.”
*14
a
with Fitzger-
from forensic scientist that a
hair consistent
pubic
Cubbage’s
ald’s
hair
found in the sheets of
bed.
pubic
was
had
Caviness testified that
to him that he
Fitzgerald confessed
cut
she had “snitched on
Cubbage
“screwed”
her
because
up
him.”
nor
scientist could
Because neither Johnson
the forensic
state whether
had taken
Caviness’
penetration
place,
was,
Commonwealth,
as
“not
We
conceded
unimportant.”
find, therefore,
was material to the rape
that Caviness’ testimony
his credibility
conviction in the sense that the
estimate of
jury’s
Dozier,
at
may well have been determinative of guilt.
1118,
We turn now to the extent of Caviness’ impeachment been rendered and the to which his would have extent credibility more had his false testi- the Commonwealth corrected suspect We there was a difference between mony. conclude that while of the what record and the truth jury told about Caviness’ matter, dis- not there is that the matters no reasonable likelihood Although closed judgment jury. would have affected the convictions, Caviness failed to disclose his two felonious sodomy did and enter- breaking he admit to a having conviction felony felon. knew, therefore, The ing. Caviness was a convicted jury misde- like” a jury “something also knew that Caviness had ap- was further involving meanor moral It conviction turpitude. since in jail some time jury to the that Caviness had parent spent charge breaking entering acknowledged jail in on a being Fitz- he encountered (“broken at the time down petit larceny”) short, ex- while have known the full gerald. may jury record, charges, tent of facing Caviness’ that he was additional it did a This background. know that he had substantial criminal in defense counsel point properly emphasized jury by his that Caviness was a closing argument. He reminded the felon, “convicted a involved in crimes of moral person turpitude offender—a a drone.” multiple jailbird and Although charges, counsel could have that the argued pending as well as Caviness’ informant cases history being police not involving Fitzgerald, gave him a motive to provide testimony that, favorable to the we given believe the extent to which Caviness’ it is credibility was doubtful that impeached, additional would have regard evidence made a difference Jackson, jury’s opinion See credibility. United States v. 780 F.2d (7th 1310-11 1986). Cir.
An
is,
additional relevant factor
argued
as
the Common-
wealth’s attorney,
that Caviness’
of Fitzgerald’s
account
state-
ments contained
aspects of
crime which had not been released
to the public. For
example, Caviness’ testimony regarding
manner in which Fitzgerald claimed to have
the body
mutilated
corresponded with both Johnson’s
testimony and the testimony
Further,
the pathologist.
Caviness’ testimony
com-
mitted the crime
Cubbage
because
“snitched on him” corre-
sponded with Johnson’s testimony that
before the crime
shortly
Fitzgerald had been
about how
mumbling
Cubbage
“ripped
him
inference, therefore,
off.” There was a strong
that Caviness’
regarding
these
events came from his conversation
*15
Fitzgerald.
Breest,
As stated in
that fits like the final
“testimony
piece of a puzzle into an
clear
a much
increasingly
pattern needs
stronger rebuttal than
one
stands almost alone as a purported
of the
representation
whole.”
the
III. INEFFECTIVE ASSISTANCE COUNSEL counsel was ineffective argues appellate next of the to contest the sufficiency on direct because failed appeal evidence.7 rape robbery counsel, assistance of on appellate to effective right Supreme States appeal right, recognized
first
United
387,
There,
v.
469 U.S.
396
Lucey,
(1985).
Court in Evitts
Court declined to “decide the content of
standards
appropriate
Id.
claims of ineffective assistance of
counsel.”
judging
appellate
However,
concerning
right
at
law
reviewing prior
392.
case
at
counsel the Court stated:
court-appointed appellate
“[T]he
merit,
every argument,
regardless of
torney need not advance
of an active
urged
. . . and must
the role
appellant
play
Barnes,
745
at
v.
463 U.S.
(citing
advocate.” Id.
394
Jones
(1983); Anders
that trial counsel had been ineffective. “fell an standard reason objective counsel’s below performanсe is a Second, “there Id. at 688. it must shown that ableness.” er that, unprofessional reasonable but for counsel’s probability rors, Id. different.” the result of the would have been proceeding 7 Fitzgerald argues counsel at deprived assistance of also that he was effective trial; however, properly of these before us. Most we find that none these claims are beyond jurisdiction. our capital claims and are thus relate murder conviction Peterson, not were at of these claims App. Va. 343 S.E.2d 478. The remainder n.1, appeal briefed and are thus waived. Quintana denied, (1982), S.E.2d 645-46 n.1 cert. 5A:20, compliance requiring accept a statement We do as with Rule not sufficient stating: relating principles question, counsel’s footnote of law and authorities each space, appellant brief all of the ineffective is unable to “Because the limitations of petitions. Appellant does petition claims raised in and amended substantive (sic) validity of each hereby waive claims and reassеrts the of those below.” claims raised in court claims, petition amended including assigned sub-parts, in the one were Over hundred day through trial four petition. the record of this do it to comb We not deem our function claims, only by counsel’s validity assisted order ferret-out for ourselves the these conclusory footnote. *16 at 694.8
We believe that a similar must be approach applied whether was denied effective assistance of question ap appellant Evitts clear, and Strickland make pellate counsel. As counsel’s performance must be effective at both the trial constitutionally Strickland, In the Court appellate levels. stated: Sixth Amendment refers to “counsel” not simply spec-
[T]he ifying particular of effective assistance. It relies requirements instead on of standards legal profession’s maintenance sufficient to the law’s that will justify presumption counsel fulfill the role adversary Amendment process envisions. The measure of proper performance re- attorney mаins simply reasonableness prevailing under professional norms. (citation at 688 omitted). It follows that coun- appellate
sel’s performance must fall objective within an standard of reason- ableness in order to constitutionally effective.
We need not address the of level that must be shown prejudice on a prevail claim ineffective assistance counsel appellate because we find that Fitzgerald’s counsel did not appellate render ineffective assistance. manner in were only alleged which counsel to have ren-
dered ineffective argue assistance on appeal they failed sufficiency ex- rape robbery evidence. Counsel plained at the habeas that he and co-counsel hearing reviewed entire record and decided use a “shotgun approach.” opinion “the best way appellate law is practice pick points which you think are the and to those and strongest pursue to take the points being that shоuld have real chance heard.” Having reviewed the coun- robbery, evidence rape sel concluded that “to raise just . . . would point appeal weaken other points.” above, the Evitts Court
As stated acknowledged appellate counsel need not advance 394. Fur- every argument. 469 U.S. at ther, in Strickland an ac- deciding Court stated: court “[A] Clark, Applied Virginia Dept. Court Corrections 525, 533-36, Va. 318 S.E.2d 403-04 of coun- tual ineffectiveness claim must the reasonableness judge case, viewed facts of the challenged particular sel’s conduct on the *17 addition, of U.S. at 690. In as the time of counsel’s conduct.” 466 law and thorough investigation of “strategic choices made after unchallengeable.” facts are options virtually relevant to plausible counsel’s Id. These are to equally applicable appellate principles Here, counsel not to choice made strategic by performance. in favor robbery and evidence challenge sufficiency rapе of of their to those more meritorious narrowing arguments thought was reasonable all the Their performance under circumstances. not, therefore, and we regard defective constitutionally affirm the dismissal of this claim. habeas court’s stated, court did
For the reasons herein we find that the habeas not err habeas Fitzgerald’s those claims raised dismissing extent, To jurisdiction. over which we have petition appellate claims judgment relating capital is affirmed. Those lack of jurisdiction. murder conviction are dismissed for in part, Affirmed
dismissed in part. Koontz, Duff, J., C.J., Barrow, J., Cole, J., Coleman, J., J., Moon, J., concurred. Hodges, Benton, J., dissenting. concerning
I opinion dissent from that of the portion majority’s I believe witness Wilbur Caviness. prosecution of from that the Edward B. appellant, Fitzgerald, precluded failed that the Commonwealth raising habeas review claim wit- to disclose evidence to exculpatory pertaining prosecution Furthermore, ness I petition Caviness. believe that because a writ of should been granted have corpus prosecu- denial due in connection with the process tion witness Caviness. in- trial, discovery
Prior motion for the defense filed a spection requested: which any 1 1963[sic], U.S. Brady Maryland, 373
Pursuant whatsoever, Com- by known all evidence of kind any or custody Attorney possession, monwealth’s to be within the of due exercise control or which the diligence should be known the Commonwealth’s Attorney to be or control the Com- within possession, custody monwealth, favorable, which is relevant exculpatory, or as or or affects the guilt defendant which punishment, Commonwealth’s wit- anticipated credibility nesses, evidence or which is in inconsistent with any way presented, presented anticipated Commonwealth. to that response motion the Commonwealth stated:
The Commonwealth is not aware of evidence of an exculpa- which is tory nature of a of inno- clearly supportive claim cence, or of such substantial value the defense that ele- fairness it to be United States v. mentary requires disclosed. Agurs, 965 S. (1976), Ct. U.S. 97. The Com- [sic] *18 monwealth is unable to ascertain the may what affect credi- of bility witnesses, the nor Commonwealth’s what may be inconsistent with evidence are These mat- presented. ters counsel must contend with at trial. While some courts recognize the is requirement materiality met where the ev- witnesses, idence would only affect the credibility Virginia is not one of those courts. See citing paragraph supra, While this not be may an to ascertain attempt Bellfield. witnesses, names of Commonwealth’s it would amount to an indirect to that which be approach directly. cannot had When the Commonwealth filed this Caviness was response, known by the Commonwealth to be a valued witness known by an assistant commonwealth’s attorney prosecu- tion team to acting be as an active informant for That police. same assistant commonwealth’s had attorney successfully prose- cuted Caviness a few months earlier.
It thus would indi- appear response, that the Commonwealth’s cating that it “is not substantial aware of evidence ... of such value to the defense it to dis- fairness elementary requires closed,” was untrue. know that Although the did not defense and, Caviness would be called a as witness for Commonwealth therefore, not object could at the time Caviness as specify motion, its to the the Commonwealth should have been alerted felon who witnesses was a convicted among fact that its proposed the local and as an informant for both history substantial was not an er- response merely state The Commonwealth’s police. read, but, a repre- law fairly roneous statement when evidence did exist. requested sentation to the defense that the which to no basis upon trial counsel had reasonable Brady request Commonwealth’s response conclude that the It on direct follows ground appeal. would attack provide review of obtaining not now be from precluded should this issue in the habeas proceeding. creates made the Commonwealth
Additionally, the response mandating a new trial. an error of constitutional dimensions (1985), Bagley, United States U.S.
Court held: error, in this the Govern any,
The constitutional if case was ment’s information by disclosing failure assist the defense cross-exami might conducting have been helpful to a .... of evidence amounts nation suppression [S]uch if defendant of a constitutional violation it only deprives concern overriding fair trial. Consistent with “our Agurs, Unites States justice finding guilt,” occurs, U.S., Ct., at 96 S. a constitutional error reversed, if the evidence and the conviction must be only confi its undermines suppression material the sense that dence in the outcome the trial. nature of evidence
The record demonstrates that amply confidence withheld was such its undermined suppression trial, at- Commonwealth’s outcome of this trial. In the habeas *19 testi- Caviness’s who the case conceded that torney prosecuted valuable was “not an mony “extremely and was unimportant” Fitzgerald evidence.” Caviness testified piece prosecution This was the victim. raped cоnfessed to him that Fitzgerald cer- degree which established with only evidence in the case of- prove which was necessary the act of tainty penetration 113, 115, fense of See Elam rape. dependent was S.E.2d essential fact Proof of this Thus, the failure Caviness’ a witness. upon credibility as crimi- extensive Commonwealth of Caviness’ evidence provide Cavi- to subject nal record the defense of the deprived opportunity bias, interest, credibility. ness of his meaningful probing to a Likewise, status the failure to inform the defense Caviness’ in as an cross- substantially disadvantaged informant in the habeas trial indicates examination Caviness. The record date of continuing through in beginning active informant for Detective Fitzgerald’s trial Caviness was an R. William Shuman of the Police and had Department Richmond cases, been an informant on a “countless” number estimated to The Caviness was with maybe.” year “50 same incarcerated Caviness was best Fitzgerald, one Shuman’s informers. victim was also an active Detective same informant Furthermore, Shuman. Caviness had several conversations with Detective Shuman while he in jail was incarcerated the same Fitzgerald. Although Detective Shuman testified that the discus- sions which he had with in Caviness concerned a third jail charges and the party against Caviness in Henrico pending Caviness County, testified that he his conversations with reported Fitzgerald to Detective he (Caviness) Shuman while incarcerated. Burchett, officer,
Larry a state Caviness in police also visited jail six times approximately during the time Caviness and Fitzgerald were incarcerated in same Burchett jail. arranged for Caviness to be appointed jail trustee and Caviness provided with other services while he was Burchett testified incarcerated. that Caviness wanted make amends for his involvement in the Chesterfield burglaries. Additionally, Caviness wanted assistance in getting out of jail and in connection with pending felony visits, charges Henrico one of told County. During Burchett Caviness that something would be done felony about pending charges in Hеnrico. after learning Burchett recalled on the he day made that promise agreed testify to Caviness that Caviness against informed Fitzgerald. Caviness testified that officer, recall, on a date that he could whose police not aby recall, name he could Attorney, the Commonwealth whose office was would Fitzgerald, prosecuting speak Henrico County concerning pending prosecutor felony charges against Caviness in County. Henrico trial, Com-
Additionally, two months before monwealth bad Norfolk Caviness for three Attorney prosecuted check charges and for of his sodomy violation on two probation *20 62 was an inform-
convictions. informed him Caviness Burchett City of and Burchett testified the ongoing investigations, ant in consideration his Norfolk that Caviness deserved circuit court result, was sentenced to services as an informant. As a Caviness sodomy and his charges probation- on the probation petit larceny ary sentences were continued. these and of Caviness based
Clearly,
upon
a cross-examination
corpus hearing
disclosed at the habeas
other voluminous facts
his
a
damaged
credibility by establishing
could have substantially
and, thus,
have been determina-
testimony
motive for false
could
charge.
tive
jury’s finding
guilt
respect
rape
of
interest of the
such subtle factors as the
upon
possible
“[I]t
liberty
life or
may
witness in
a defendant’s
testifying falsely
Illinois,
(1959).
my
v.
360 U.S.
depend.” Napue
as
informant
paid
of Caviness’ status
a
opinion,
suppression
in the'
to entitle
sufficiently
jury’s finding
undermines confidence
charge
rape.
to a new trial on the
Fitzgerald
if
Fitzgerald
Even
I were
should
persuaded
precluded
from
on
the failure of the Commonwealth
raising
habeas review
evidence,
I would still conclude that
disclose exculpatory
to a
because of
belief that there
my
is entitled
new trial
is a
of the
was af
judgment
reasonable likelihood that the
jury
Where false
know
testimony,
fected
Caviness’ false
by
testimony.
an effect
have had
“may
introduced
ingly
trial,”
trial is
to fulfill the
required
the outcome
new
Illinois,
272. In
at
of due
U.S.
рrocess. Napue
mandate
States,
stated
(1972),
By failing record, offering testimony mis-stating Caviness’ criminal incomplete Commonwealth before the an jury picture placed defense an one its witnesses. Neither the nor the major of Caviness’ statement that there opportunity falsity learn *21 him for his Conse- testimony. was could offer” “nothing nobody the never had the to measure Caviness’ quently, opportunity jury services that Shuman self-serving against significant statement the and Burchett for performed him.
Moreover, is a significant there difference between what the was the jury history. told and truth Caviness’ criminal regarding The was informed direct of jury through examination Caviness that been of that he Caviness had convicted one had been felony, “something convicted of like” misdemeanor involving a moral tur- and was pitude, charged that he not with now.” anything “right examination, On cross repeated Caviness that he had been con- defense, of victed one was only felony. What not disclosed the learn, and what the did not was jury that at the time Fitzgerald’s trial Caviness had the following criminal convictions: two felony convictions for a conviction for sodomy, felony break- and a ing entering, conviction of the contributing to delinquency minor, of a and nineteen (19) convictions of Fur- larceny. petit thermore, at the time the trial Caviness was under indictment for felony charges breaking entering grand larceny.
Disclosure of the fact “a con- merely that Caviness was not victed felon” had undoubtedly but a criminal significant history would significant have had a weighing impact upon jury’s Caviness’ credibility. “The estimate of the truthfulness and jury’s reliability of a or given guilt witness well be determinative may Illinois, innocence. Napue evaluating . . .” v. at 269. In U.S. it, Caviness’ testimony determining given the credit was jury entitled to know of his con- the number and nature prior 548, 550, victions. See Hummel S.E.2d that “the fact Additionally, apprised grounds may other witness . . . believing that the have had an . . . against interest testifying petitioner [did what Napue was otherwise a one.” tainted trial into a fair turn] Illinois, 360 U.S. 270.
Moreover, I no the majority’s find basis in record to support cred- inherently conclusion that apparent Caviness’ testimony “why asked (Caviness) Fitzgerald ible. testified that Caviness her up.” do kill this woman and cut thing he would such as does not substan- Fitzgerald which Caviness attributed response testimony the co-defendant’s with either tially correspond manner in which the victim’s as pathologist’s testimony was mutilated. body majority’s no support
There is also basis this record committed testimony Fitzgerald assertion thаt “Caviness’ corresponded ‘snitched on him’ Cubbage crime because mumbling . had been . . testimony Johnson’s ” is no basis him off.’ There ‘ripped about how [the victim] off” on him” and him “ripped for the conclusion that “snitched com- that Fitzgerald are of the same The record reflects import. mented, have been drug may supplied after he which sampled contrast, victim, the victim him off.” “ripped word for “snitch” is “another establishes ” ‘informer.’
Thus, un- Caviness’ majority’s interpretation *22 sound and undermines its conclusion that Caviness’ been released to “contained crime which had not aspects and, therefore, credible. Even if it is public” inherently its conclusion that assumed is correct majority facts, pro- the habeas record non-public Caviness testified as sta- known of Caviness’ vides basis which had the defense upon had the as it have that Caviness argued tus an informant could than from sources other to learn those facts opportunity Fitzgerald. reasons, in this case record
For I believe that the foregoing fair trial on a conclusion was denied a supports a new trial. charge granted and should rape