State v. Hill

Justice Lake

dissenting.

I dissent from the order directing the Superior Court of Edgecombe County to enter judgment sentencing the defendant to imprisonment for life upon the verdict heretofore entered.

The defendant appealed to this Court from a judgment of the Superior Court of Edgecombe County imposing upon her the sentence of death pursuant to a verdict finding her guilty of murder in the first degree, the jury having not recommended the imposition of a sentence of imprisonment for life. Upon her appeal the defendant sought a new trial for alleged errors of law. Among the defendant’s assignments of error were these :

“1. Exceptions 7, 8 and 9 (R pp 94 and 96):

“The sentencing procedure provided by G.S., § 15-162.1 of the General Statutes of North Carolina violates the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and Article I, §§ 11, 13 and 14, of the North Carolina Constitution.

“IV. Exceptions 7 and 9 (R pp 94 and 96):

*379 “The sentence imposed upon the defendant violates the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, § 14, of the Constitution of North Carolina.”

The exceptions upon which these assignments were based were as follows:

“Defendant moves to set aside the verdict on the grounds that the verdict as returned by the jury was improper. Motion denied. Defendant excepts. Defendant’s Exception # 7.

“Defendant moves for a new trial because of errors in law committed during the trial. Motion denied. Defendant excepts. Defendant’s Exception # 8.

“To the signing and entry of the foregoing judgment the defendant in open court objects and excepts, and gives notice of appeal to the Supreme Court of North Carolina; further notice waived. Exception # 9.”

This Court found no merit in any of the defendant’s assignments of error and affirmed the judgment of the Superior Court. State v. Hill, 276 N.C. 1 , 170 S.E. 2d 885 .

The Supreme Court of the United States granted the defendant’s petition for certiorari and remanded the matter to this Court, saying only:

“The motion for leave to proceed in forma pauperis is granted. The petition for writ of certiorari is granted. The judgment, insofar as it imposes the death sentence, is reversed, United States v. Jackson, 390 U.S. 570 (1968), Pope v. United States, 392 U.S. 651 (1968), and the case is remanded for further proceedings.”

The judgment of this Court, affirming the judgment of the Superior Court, has thus been reversed, “insofar as it imposes the death sentence,” by the only court in all the world having authority to do so. It seems to me clear that the Supreme Court of the United States intended, by its order, to reverse, or vacate, the death sentence which had been imposed on Marie Hill by the Superior Court and affirmed by us. If so, no action by this Court is necessary to vacate that sentence, though orderly procedure would seem to indicate the entry of such judgment by us pursuant to the mandate we have received. See D&W, Inc. *380 v. Charlotte, 268 N.C. 720 , 152 S.E. 2d 199 . The sentence of death having been vacated by a court having jurisdiction to do so, and no other sentence having been imposed, it would seem necessarily to follow that there is no sentence presently in effect. The commutation power of the Governor under Article III, § 6, Clause (6), of the Constitution of North Carolina is the power to reduce a sentence then in effect, not the power to impose a sentence upon a person not then under sentence. Black’s Law Dictionary; 15A C.J.S., Commutation; 39 Am. JUR., Pardon, Reprieve and Amnesty, § 8. Consequently, the commutation power of the Governor appears to afford no solution to the dilemma facing the State as a result of the reversal by the Supreme Court of the United States of the judgment of this Court. In any event, the Governor has not attempted to exercise the commutation power in this case, nor has he indicated any intent to do so. The case is again before us, on the order of remand, for further proceedings and it is necessary that this Court take some action upon it.

The matter has been remanded to this Court for further “proceedings” in conformity with the judgment of the Supreme Court of the United States. The question now before us is what proceedings will meet this test and also conform to the law of North Carolina, for neither this Court nor any other court of North Carolina has any authority not conferred upon it by the Constitution and laws of this State. We can derive no authority from any other source, not even a decree of the Supreme Court of the United States. That Court may, as in this case, set aside a judgment of this Court when, in its opinion, our judgment is in conflict with the Constitution or laws of the United States, but it cannot authorize this Court to enter a judgment which is not authorized by the law of North Carolina, and it has not purported to do so.

This Court is not authorized by the law of North Carolina to enter, or to authorize or direct the Superior Court of Edge-combe County to enter, any sentence upon Marie Hill for the crime of murder in the first degree except one which is pursuant to and in accord with the verdict of the jury, she having entered a plea of not guilty. The fact that a sentence, approved by us and in accord with the verdict, cannot be lawfully carried out does not authorize this Court to enter or to direct or approve the entry of a different sentence simply because it is believed *381 by us to be just, expedient and the next best thing to do with the defendant. State v. Ruth, 276 N.C. 36 , 170 S.E. 2d 897 .

The supervisory power conferred upon this Court by Article IV, § 12(1), of the Constitution of North Carolina is the power to enter orders directing other courts of the State to proceed in accordance with the law of this State, not the power to direct them to proceed as we, in our best judgment, deem just and right.

The statute, G.S. 14-17, fixing the possible sentences for the crime of murder in the first degree, the defendant having entered a plea of not guilty, is clear and explicit. It provides:

“A murder which shall be * * * committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury * * * ”

The Supreme Court of the United States has not declared this statute, or any part of it, unconstitutional per se. It has not said that if, at the time of the offense and trial, this statute stood alone, as it now stands alone, the State may not impose and carry out a sentence of death, pursuant to a verdict such as that rendered by the jury in Marie Hill’s case. All it has said is that such sentence cannot be imposed lawfully when there is also in effect a statute such as G.S. 15-162.1. We are, of course, bound by that decision. At the time of the offense with which the defendant is charged, and also at the time of her trial, both G.S. 14-17 and G.S. 15-162.1 were in effect. The subsequent repeal of G.S. 15-162.1 does not have any bearing upon the validity of the sentence heretofore imposed, nor will it make a death sentence permissible at a new trial.

The jury returned a verdict of guilty of murder in the first degree without a recommendation. Apart from the provisions of the United States Constitution, as now interpreted by the Supreme Court of the United States, let us assume that the Superior Court, in the first instance, had sentenced the defendant to imprisonment for life upon this verdict and that the validity of such sentence were properly before us on appeal. Is it not clear that we would then be obliged to hold the im *382 position of such a sentence was error for the reason that the sentence was not in accord with the verdict and so was not authorized by the statute? The statute makes the recommendation of the jury, at the time of rendering its verdict, that the defendant be sentenced to imprisonment for life a condition precedent to the authority of the trial judge to impose such a sentence. State v. Ruth, supra.

It appears to me a reasonable assumption that, had the Legislature been granted the ability to foresee how the United States Supreme Court would interpret the United States Constitution, as related to this statute and G.S. 15-162.1 in conjunction, the Legislature would have given this Court authority to direct the imposition of a sentence to life imprisonment in a case so remanded to us. However, the Legislature did not foresee such a decision by that Court and, consequently, we are left with and limited by the statute as it is.

This, then, is our dilemma upon this remand: The death sentence cannot be imposed because the United States Supreme Court has so decreed, pursuant to its interpretation of the United States Constitution as applied to the combination of G.S. 14-17 and G.S. 15-162.1. A sentence of life imprisonment cannot be imposed because the statutory condition precedent thereto has not occurred. State v. Ruth, supra. What now is the lawful and proper “further proceeding?”

The Supreme Court of the United States has vacated the judgment rendered in the Superior Court, and affirmed by this Court, because of what it has declared to be an error of law. That error was the result of the charge of the superior court to the jury with reference to the possible verdicts which the jury might render. Though the charge, as to the possible verdicts, was in full accord with the previous decisions of this Court, we must now regard it as an erroneous statement of the law applicable to the trial of Marie Hill on the indictment appearing in the record. When a defendant appeals to this Court from a sentence, imposed pursuant to a verdict rendered under an erroneous instruction by the trial court, and seeks a new trial, as Marie Hill did, the proper procedure is for this Court to remand the case to the superior court for a new trial.

This defendant has, in my opinion, had a fair trial. The evidence in the record before us fully supports the verdict that she is guilty of murder in the first degree. The Supreme Court of the United States has suggested nothing to the contrary. It *383 has, however, forbidden the State to carry out the sentence of death and has remanded the matter to us for further proceedings. This it had jurisdiction — i.e., authority — to do. Therefore, its judgment is binding upon us however much we may disagree with it. So is the law of North Carolina binding upon us to the extent that it does not conflict with the Constitution and laws of the United States.

To send this case back for a new trial entails the risk of a different verdict as to guilt. The evidence at the new trial may be different, or the different jury may not believe it. That is, a new trial entails the risk of a miscarriage of justice, assuming the record now before us speaks the truth. On the other hand, if, at the new trial, another jury, properly instructed, returns a verdict of guilty of murder in the first degree with a recommendation that a sentence of life imprisonment be imposed, then it may well be said, assuming such trial is free from error, that time and expense have been wasted for no purpose except to follow the ritual of the law. I do not think this Court should take the position that to follow the mandate of the statute before imprisoning a person for life is a waste of time and money, but, if it be such, I nevertheless see no other procedure which conforms both to the decree of the United States Supreme Court and to the law of North Carolina. Being bound, in this case, to follow both, I feel compelled to dissent from the entry of an order by this Court directing the Superior Court of Edgecombe County to sentence Marie Hill to imprisonment for life upon the verdict heretofore rendered. It is my view that this case must now be remanded to the Superior Court for a new trial because of the error in instructing the jury as to the possible verdicts it might render. State v. Ruth, supra.

To hold that the Superior Court erred in instructing the jury that it might return a verdict of guilty of murder in the first degree without recommending that she be sentenced to imprisonment for life, in which event the Court would impose the death sentence, and to order a new trial because of this error, would not violate the constitutional prohibition against double jeopardy. The defendant, in her appeal to this Court, asked for a new trial. As Justice Sharp said in State v. Stafford, 274 N.C. 519 , 164 S.E. 2d 371 :

“All courts agree that when a defendant seeks a new trial by appealing his conviction he waives his protection *384 against reprosecution. ‘[I]t is quite clear that a defendant who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he has been convicted.' Ball v. United States, 163 U.S. 662, 672 , 16 S.Ct. 1192, 1195 , 41 L. Ed. 300, 303 (1896).”

This statement was quoted with approval in State v. Wright, 275 N.C. 242 , 166 S.E. 2d 681 , cert. den., 396 U.S. 934 . To the same effect, see: State v. Case, 268 N.C. 330 , 150 S.E. 2d 509 ; State v. Hollars, 266 N.C. 45 , 145 S.E. 2d 309 ; State v. Gainey, 265 N.C. 437 , 144 S.E. 2d 249 ; State v. Anderson, 262 N.C. 491 , 137 S.E. 2d 823 ; State v. White, 262 N.C. 52 , 136 S.E. 2d 205 ; State v. Correll, 229 N.C. 640 , 50 S.E. 2d 717 , cert. den., 336 U.S. 969 ; State v. Williams, 224 N.C. 183 , 29 S.E. 2d 744 , aff’d, 325 U.S. 226 , rehear, den., 325 U.S. 895 ; State v. Stanton, 23 N.C. 424 ; 21 Am. Jur. 2d, Criminal Law, § 209.

In North Carolina v. Pearce, 395 U.S. 711, 719 , 89 S.Ct. 2072 , 23 L. Ed. 2d 656, 666 , the United States Supreme Court reaffirmed Ball v. United States, swpra, saying:

“At least since 1896, when United States v. Ball [swpra] was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. ‘The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.’ United States v. Tateo, 377 U.S. 463, 465 , 12 L. Ed. 2d 448, 450 , 84 S.Ct. 1587 . * * *

“We think those decisions are entirely sound, and we decline to depart from the concept they reflect.”