Petition — Noell v. North Carolina

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

~~]

inal

;

~ a =,

c —

O fs

INDEX

Page

Citation to Opinion BelOW cccccccccccescceccceccceoccees 1

Jurisdiction

Questions

Presented

“ere enevneneneneueenenenne

Constitutional

Statement

How the Federal Quest

Dpelow

Reasons for Cranting

Le The Court S

Consider Wh

Out of the

of Rape Und

Violates the

to the

Cons

Eke The Court S

Consider Wh

of Ten Ven}

Expressed A

B. ry

Conscientious Scruples

Right to A

The Court S

Whether Pet

and Statutory Provisions

ions Were

the Writ

hould Gra

‘ther the

sentence

er the La

Fiachth

- > 4

titution

hould Gra

ether the

remen on

ttitudes

4 t lon r

ted States

ne Te st o

Involved ....cece

and Decided

Raised

ee ee |

nt Certiorari to

Imposition and Carrying

of Death for the Crime

7 Of North Carolina

or Fourteenth Amendment

of the United States .....

1t Certiorari to

Exclusion for Cause

the Grounds of Their

Toward the beath Penalty

s Rights Under the Sixth

1¢ to the Constitution

f Exclusion Applied by

ne Court Below Did Not Meet the

inimu St

onst itut i

itherspoo

10 ( 908)

he Exclus

apital Pu

etitioner

hould Grant Certiorari

itioner's

Sixth and Fourtcenth

Constitutio

lated by the

Prosecutor

Through fx

that Eviden

n of the

Salcula

in: (a)

imination

ce, Never

United

of a

andards Required by The

Coastrued in

Illinois, 391 U.S.

on As

nm Ve

10n of Veniremen with

Against

nishment Deprived

of His Sixth Amendment

Representative Jury ....

to Consider

Rights Guaranteed by the

iments to the

States Were Vio-

of the

Impermissibly Suggesting

Prosecutioa Witness

in Fact Produced and Not

ted Misconduct

WwW

Conclusion elt i phe Lite tt tat cre Pree

IV.

Subject to Cross Examination, Bolstered the

Prosecution's Case; and (b) Eliciting fron

the White Wife of A Black Defendant Charged

with Interracial Rape the Pact that the

Defendant's Child Had Been Conceived prior

to Their Marriage e9020880089890600006068062080600006066086

The Court Should Grant Certiorari to Consider

Whether Petitioner Was Denied the Fundanental

Fairness in Criminal Prosecutions Guaranteed

by the Due Process Cluuse of the Fourteenth

Amendment to the Constitution of the United

States When the Police Failed Adequately to

Investigate the Crime for Which Petitioner

Was Convicted FESCSCSSCOSCSCC CCE ESCEC HOH O44 ORO OOS

The Court Should Grant Certiorari to Consider

Whether the Process of Selecting Petitioner's

Trial Jury in an Interracial Rape Case Denied

Petitioacr's Rights Guaranteed by the Sixth

and Pourtcenth Amendments to the Constitution

of the United States When: (a) The Trial

Court Denied Petitioner's Challenge Por Cause

to a White Venireman Who Exvressed "Feelings

Against Interracial Marciage" In a Case

Where the Black Petitioner and his White Wife

Both Testified; (b) The Trial court Denied

Petitioner's Challensze For Cause to a Whito

Venirenan Who States IPWas "Not Sure"

whather he Would Vote to Acguit if Me Had

Only a Reasonable Doubt of Petitioner's Guilt;

and (c) Otherwise Eligible Black Veniremen

Were Swept From the Jury Through the Inter-

action of Prosecutorial Challenges For Cause

On The Ground of Coascicatious Scruples

Against Capital Punishment and the Prosecutor's

Exercise of his Peremptory SUBST saccséasevas

Page

: TABLE OF CASES

Page

Alcorta v. Texas, 355 U.S. 28 (1957) wcccccccccccccccces 39

Barber v. Page, 390 U.S. 719 (1968) ..ccccccccccccesecese 36

Ber rv. Unite : tes, 295 U.S. 7B (2935) cerecccecee 39,40

I 1 v. Holman, 394 U.S. 478 (1968) w.cccccccccee 23e2e

] v. Mar . U.S. & [R9GS) ccocccceosseseseses OF

I }? 4 < A fv >) )

‘ . ‘ ‘ . . /j “s*ee ee eee eeeneeneneenee é

) < | cA 1;

I : rth ¢ , 1 U.S. B (19GB) ccccccesce

eC; é . . € . y Cc a © a¢ U.S. 4 )

(1°70) 2

4 . “eee ee “ere ern enenene “ee eee eweeneeeneneeeenenenennneere 4

. , : ay ) ~~ > ,

C . Ls ‘ ) U.S. « (1973) ccccccsvces

C ‘ ' , 67 W % , 409 PL

Vil (A eee eseeereeererereeeeereeoeseeeeeeeseeeeeeeee

J J - f » 408 U.S. « ios) rere me Me Pe >

Cig! - I ites, we. £2: rer 5

Gil v. Maryl P > BM. GS CRPSTE 0666600460084 56868 37

Cts 1969) eoeerseeereeesreeeseeeeeeeeseeeeeeeeeeeereeeeeee <

In re Martin, 58 Cal. 09, 24 Cal. Rptr. 833

° ‘

374 P.2d BOL (1962) c.cccccccccccccccccssccsesesses ID

Cases (cont'd) Page

In re Winship, 397 U.S. 358 (1970) wwccecceeeecececcces 44

Ivan v. City of New York, 407 U.S. 203 (1972) .....-+e-- 44

Kyle v. United States, 297 F.2d 507 (2d Cir. 1961) .... 35

Labat v. Bennett, 365 F.2d 698 (Sth Cir. 1966), cert.

denied, 386 U.S. 99] (1967) “ee 8 © “ee eee eneeeeeeeene 29

Ladetto v. Massachusetts, 403 U.S. 947 (1971), rev'g

254 N.E.2d 415 (1969) “ese ereneeeneneneneeneneeereneeereeneeene 25

lovely v. United States, 169 F.2d 386 (4th Cir. 1948) . 36

Marion v. Beto, 434 F.2d 29 (Sth Cir. 1970) ...ceeeeee 25

Maxwell v. bishop, 398 U.S. 262 (1969) ..cccceceeees 23,28

Michelson v. United States, 335 U.S. 469 (1948) ....... 36

Miller Ve Pate, 386 U.S. 1 (1967) “eer eerreereereeerereeeee 39

Mooney v. Holohan, 294 U.S. 103 (1935) ...... TeTTrTiTT 39

Napue v. Illinois, 360 U.S. 264 SRO) cheecbeoesecet ee 39

O'Neil v. Vermont, 144 U.S. 323 (1892) w.cceececccsccves 19

People v. Schader, 80 Cal.Rptr. 1, 457 P.2d 841

(Sup. a 196°) “ene eo eweeeeene e#eeeeeneee eeee eee © © “ee © fe ff © 25

Peters v. Kiff, 407 U.S. 493 (1972) ccccccccvcccccsesess 41

Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert.

denied, 408 i 942 (1972) oenreinvnveeeneeeseneeeeeeee®# 19

Roberts v. Russell, 392 U.S. 293 (1968) ...cccccsees ee 40

Santobello v. New York, 404 U.S. 257 (1971) ..ccceeeees 35

Segura v. Patterson, 403 U.S. 946 (1971), rev'd, 402

F.2d 246 (10th Cir. 1968) eeereevteeeeeveeeeeeeneeeeee @ 25

Smith v. Texas, 311 U.8. 128 (1940) cccccccccccsccesces 28

State v. Britt, N.C. Sup. Ct. No. 36 (May 15, 1974).... 31

State v. Robinson, 9 N.C. App. 433, 176 S.E.2d 253

(1970) enenreee *“enewrnreveeee *oenereienvereeeeeneeeneneneeneeeeee eee 34

State v. Schowgurow, 240 Md. 121, 213 A.2d 475 (1965) . 30

State v. Selman, La. Sup. Ct. No. 54376 (June 10, 1974) 21

Cases (cont'd) Page

State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973) 3,5,20,

22,26,31

Swain v. AlaWama, 380 U.S. 202 (1965) ...... ecccccceses 41

Trop v. Dulles, 356 U.S. 86 (1958) ....-eeee TrTTTTTT 31

Wardius v. Oregon, 412 U.S. 470 (1973) .eceunceeceee -. 37,40

Weems v. United States, 217 U.S. 349 (1910) .......2.2-- 19

White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) ..... 29

Williams v. Florida, 399 U.S. 78 (1970) c.cccccccccees e 29

Witherspoon v. Illinois, 391 U.S. 510 (1968) .. 15,23,24,25,¢

27,28,30,31

Woodards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio 1969) 25

18 U.S.C. § 2031 (1971) ..... ececccccsessseeeeneseeseee 21

28 U.S.C. & 1257(3) cece see ceeeeecese eeseseses TeTTriT. ]

Ala. Code, tit. 14, § 395 (1958) ..... TYTTTITT TTT TT 2]

A Stat. Ann 41-3403 (Supp. 1969) .cccececcesseses 21

Ga. Code Ann. § 26-2001 (1969) .....206- WTTTITTTLILL TT 21

Ga. Code Ann, § 27-2534.1 (1973) .e-cees ° eeovesere sees 2]

Ky. Rev. Stat. Ann. § 435.090 (1969) ....ceeseees seuss 21

La. Code of Crim. Proc., Art. B17 (21972) cecccseceseces 21

La, Re Ve Stat. Ann. a) 14:42 (1950) “eeernenevneeeeeeeeeeeeeee 21

Md. Code Ann., Art. 27, § 461 (Repl. vol. 1967) ....... 21

Miss, Code Ann. § 2358 (Recomp. Vol. 1956) ..ccceeveceess 21

Statutes (cont'd)

Vernon's Ann. Mo.

Nev. Stat. §§ 200.

N.C. Gen. Stat. §

Okla. Stat. Ann. §

Page

Stat. § 559.260 (1953) ..ncccnccscccs 21

363, 200.400 (1968) ..ceeeeceeecceces 21

14-21 (1958) wcccccccccesceseccess BeS,2]

14-184 wccccccccccccesesesseceeessece 34

15-187 eee eee enwnwewnwnwnenwewm enn rer ree eee ee 4

15-188 ee 4

1115 Supp. 1970) “eee eee enenenenenenenenee 21

s.C. Code Ann. § 16-72 (1962) “eee ewe ewnenenerenwnwnwnwmwnnrwewnenee 21

Tenn. Code Ann. §

Tenn. Coce Ann. §

Vernon's Tex. Pen.

DOE 2¢6eee be techies eeeoceesceseeese 21

Oe | a errrrTTrTririrrrs 21

Code Ann., art. 1189 (1961) ...cceee 2!

Va, Code Ann. S 18.1-44 (1960) *“* “ese eee eneneaeeneneeneneaenenene 21

OTIIMR AUTHORITIES

Bronson, “On the Conviction Proneness and Representa-

tiveness of

Empirical St

42 U. COL. R

the Death-Qualified Jury; An

udy of Colorado Veniremen,"

EV « ] (1970) *“eenrnineneneeeenee eeneeeene ee © © 30

International Review on Public Opinion, Vol. il,

No. 3 (1967)

“ene eoevneneeneeneeeneneneeeneeeneneeneneneneeneene ee @ © 30

MAGNA CARTA, Ch. 20-22, printed in ADAMS & STEPHENS,

SELECT bOCUM

NTS OF ENGLISH CONSTITUTIONAL

HISTORY (1926) “eseeeeeneneenenenenenenenenrerweenwn eer rrr rere ee 19

Packer, Making the

Punishment Fit the Criwe, 77 HARV

L. REV. (1964) eee eneevreevnweeeneneeeneeneeenenweweeewnwneenenene 20

UNITED NATIONS, DE

PARIMENT OF FCONOMIC AND SOCIAL

AFFAIRS, CAPITAL PUNISIIMENT (ST/SOA/SD/9~-10)

(1968) “*e ee

“eevee eeeweeeweeeeee eee ereeeen eee eeeeneeeee © 20

' ‘

IN THE

SUPREME COURT (¢ TH UNITED STATES

October Term, 19%

No.

TOMM wry ;

] titi Ee

{ j .

Ke .

P) ( ,

} ‘ P .

)

‘ ‘ / . j ‘ !

of death

violates

QUESTIONS PRESENTED

Whether the imposition and carrying out of the

for the crime of rape under the law of North

the Eighth or Fourteenth Amendment to the Const

of the United States?

p«

a s Ou t

cs ‘

‘ ‘

fa ;

, ,

4 hy ra

BS «

‘

. ‘

Cc?

sentence

Carolina

itution

Whether the exclusion for cause of ten veniremen on

of their expressed attitudes toward the death

riolated petitioner's rights under the Sixth or

] t to the Constitution of the Unite State

Whether petitioner's riahts: Tua? 1teed hb the Sixt

enth Ame ments to the Constitution of the Unite

re liolated } the cal la mi mnduct of the

A ; (a) } } } si ing thro }

Ff a prose tion witne th evide e, neve i?

no? € ‘ t ro ¢ € mig iON, kb ls ere

, Sc; a e} LLing r< the white wite

t ¢ with inter al rape the fact 1

, ] é ( ci l prior to thei

{ ; l ‘ ; rie i the fur } 7 ‘ irne

de ts : t Due Pro on F

irte the <¢ itution of the ni j

‘ V« eg te) { mvs Lé te t (

‘ } petitions Ww 9 i ed?

5. Whether the process of selecting petitioner's trial

jury in an interracial rape case denied petitioner's rights

guaranteed by the Sixth and Fourteenth Amendments to the

Constitution of the United States when: (a) the trial court

denied petitioner's challenge for cause to a white venireman

tho expressed “feelings against interracial marriage” in a

case where the black petitioner and his white wife both testified;

(b) the trial court denied petitioner's challenge for cause to

a white venireman who stated he was “not sure" whether he would

vote to acquit if he had only a reasonable doubt of peti-

tioner's guilt: and (c) otherwise eligible black veniremen

were swept from the jury through the interaction of prosecutorial

challenges for cause on the ground of conscientious scruples

against capital punishment and the prosecutor's exercise of his

peremptory challenges?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

l. This case involves the Eighth and Fourteenth Amendments

to the Constitution of the United States.

2. This case also involves the following provisions of

the General Statutes of North Carolina:

§ 14-21. Punishment for rape.-Every person who is

convicted of ravishing and carnally knowing any female

of the age of twelve years or more by force and again:

her will, or who is convicted of unlawfully and carnally

knowing and abusing any female child under the age of

twelve years, shall suffer death: Provided, if the jury

shell so recommend at the time of rendering its verdict

in open court, the punishment shall be imprisonment for

life in the State's prison, and the court shall so

instruct the jury.J/

wea ee ee ee eee -

1/ As construed in State v. Waddel*, 282 N.C. 431, 194 S.E.2d

19 (1973).

§ 15-187. Death by administration of lethal

gas. - Death by electrocution under sentencs of

law is hereby abolished and death by the admin-

istration of lethal gas substituted therefor.

§ 15-188. Manner

and place of execution. -

The mode of executing a death sentence must in

every case be by causing the convict or felon to

inhale lethal gas of sufficient quantity to cause

death, and the administration of such lethal gas

must be continued until such convict or felon 1:

dead; and when any person, convict or lon shall

sent i by any court of the State having compet

jurisdiction to be so executed, such punishment s!}

only be inflicted within a permanent death chambe)

which th rintendent of the State penitentiary

is hereby authorized and directed to provide withi

the wall of ti North Caroll! penatentiary at

Raleigh, North Carolina. The su; ntendent « th

state peni } shall also cau: to be prov}

in co! C ’ 1 tha irti ! ima at ¢ ed b t}

Covern ! CK cil of State, the ne il

appid for t} infliction of the } ) nt oO

death i ordance with the requirement of tl)

articl .

STATEMENT

This is a petition for a writ of certiorari to review

the judgment of the Supreme Court of North Carolina, entered

on February 25, 1974, affirming petitioner's conviction and

oe ——

death sentence. Petitioner, Tommy Noell, a black man, was

sentenced to die on August 3, 1973, in the Orange County

Superior Court of North Carolina upon conviction for the rape

of Miss Linda DiCenzo.

ee ee ee wee

Phe State's evidence against petitioner consisted largely

of Miss DiCenzo's testimony. She testified that at 8:45 a.m.

on May 23, 1973, she had completed the night shift and had

signed out from her nursing job at North Carolina Memorial

Hospital in Chapel Nill, North Carolina, and had started to

drive to her home in Carrboro, North Carolina. On the Route

54 by-pass, petitioner passed her in “a small compact, light

2/ Petitioner's sentence of death was imposed under N.C. Gen.

Stat. §14-21 (rape) as construed in State v. Waddell, 282 N.C.

431, 194 §.8.2d 19 (1973), The North Carolina Legislature

enacted a statute, &.B. 157, Chap. 1201, 1973 Sess. (2nd Session,

1974) on April 8, 1974 which imposes the death penalty for

certain rapes, but this statute was enacted subsequent to the

decision of the North Carolina Supreme Court in petitioner's

case and provides that it is applicable to offenses committed

after its ratification. Under the new law, the crime for which

petitioner was convicted would not appear to qualify as the

capital offense of “first degree rape,” since no “deadly

weapon" was used and since the victim was over the age of twelve

and did not sustain "serious bodily injury." Sec. 3 of S.B. 157,

supra, amending N.C. Gen, Stat. §14-21.

green with a stripe on the side and [a] . . . green vinyl [top].

R. 32. Petitioner pulled into her apartment complex, the Royal

Park Apartments, and stopped along the driveway curb. Miss

DiCenzo passed him, viewing him for "2-3 seconds," R. 36. She

parked and climbed the stairs to her third floor apartment; as

she was unlocking the door, at 9:05 a.m., she saw petitioner's

car slowly passing below and, “for no longer than three seconds,”

R. 36, observed petitioner looking up at her.

A few minutes after she had entered her apartment, she heard

a knock at the door and said, “come in." R. 32. She testificd:

"[Petitioner] came in and said he was selling

vacuum cleaners. [He was wearing "light green

Slacks and a sort of burgundy top, with stripes

in it." R. 34). I told him I did not want one and

that he should talk to my roommate who was away

at work and wovld return about 6:00 p.m.

[Petit i onea}’/ turned to go but locked the doo

when he got to it. He turned around and walked

towards me and said, ‘Miss, 1'm going to fuck

you' and I thought it was all a joke.

I said ‘You must be kidding,' but he grabbed my

shouider and said, ‘We're going to fuck right

now or I'm going to kill you.'" R. 32.

—- ---- + - -— ae i eee

3f In North Carolina, the certified appellate record does not

consist of a direct transcript of what was said in the trial

court, but rather a “narrated" account which transforms question-

and-answer dialogue into monologue. See Bumper v. North Carolina,

39) U.S. 543, 546, n. 8 (1968).

4/ On cross examination, Miss DiCenzo stated: "When the attacker

came to my door I didn't make a mental note that he was the same

person driving the automobile in the lot. When I thought about

it later, the face of the man I saw and the face of the man in

my apartment, I thought it was the same. I'll say I know it was

the same man. I don't know what the man in the car was wearing."

R. 37.

DiCenzo testified that petitioner pulled her onto the

wed his hand over her mouth; t!

screamed,

repeating he would kill her unless she

i ,

succecaca

ré pl ied —_ Ou won '

ro policeman

t he then pulled her into the bedroom and ordered

a.m.

him

#he had been raped, and he observed that t

generally orderly, but that the bedroom wa

Officer Horne discovered a wrist watch wit

on the floor of the apartment's dining are

could not identify and which she did not t

the attack. The watch was introduced as e

The police arrested petitioner at app

May 23, 1973, at his brother's trailer in

Carolina, pursuant to a warrant for his ar

Dic=nzo chaz ig@ him with rape. Petitione

“constitutional rights,” R. 463; his hands

behind h back; and he was transported to

Station, a} tL cight mile away. At the §S

5/ Two wit testified that on th mo

Mi: DiC © had g n t] nm account of

her test y in court: Officer Horne, R.

Czrolina } rial } pital « geney room

R. 42-44.

6/ The record dc n reveal the circu

the polic to arrest petitioner. Carrboro

Detecti John Blackwood testified that he

Dicenzo twice on iy 23, 1973, and that “a

[ se M i} cC 7 it ic fat thi Carri ro Pol

transpired ther a warrant for petitione

out. R. 45.

°e @ «

he apartment was

“disarranged.” Ibid.

h a broken band lying

a which Miss DiCenzo

hink there before

vas

vidence.

roximately 5:30 p.m.,

Chatham County, North

rest siqned by Miss

r was advised of his

were handcuffed

the Carrboro Pol ice

+--+ 4 + Ce ee

tation, he was ag

rning of the att Re

the rape simila to

40-4?; North

nur: Mary Ford,

stances which caused

Polace Department

interviewed Mi:

a result of that

ice Station], and wha

's arrest was worn

: , :

advised of his "rights," R. 47, and asserted that he didn't

think he needed a lawyer, but he “wanted to know what was going

on." Ibid. Upon being told he was charged with rape, "he said

he didn't know anything about it." Ibid. He stated that he !

owned a watch, but that he had lost it "a couple of weeks befora"

ibid., and that he had been driving his mother's 1971 Maverick

—

compact earlier that day, which was "[t]wo-tone green, black

top, with a black stripe on it." R. 48. Detective Blackwood

also testified that as petitioner was being examined, at approx-

imately "5:30 or 6:00" p.m., R. 39, at least eight hours after

the rape of Miss DiCenzo, he observed “a visible impression of

what was left by an expandable watch band" on petitioner's left

wrist. R. 52. The police did not attempt to photograph this

imprersion, and they did not attempt to compare the impression

on petitioner's wrist to the expansion band of the watch they

found in Miss DiCenzo's apartment. R. 57. Petitioner denicd

being at the Royal Park Apartments that day, and stated that

he had driven the Maverick to Durham for a 9:00 a.m. job inter-

view at Bronson's Tire Company. The police did not telephone

or interview any witnesses who could have corroborated

7/ This car is referred to as a "61 Maverick" by Detective

Blackwood at the evidentiary hearing, R. 48, but he describes

it as a “1971 Maverick" on direct examination. R. 52. This

same discrepancy occurs in the transcript. Cf. Transcript,

State of North Carolina v. Tommy Noell, Orange County Superior

Court, No. 73-Cr-4142 (August 2, 1973) at p. 192, with id.,

at 200. Petitioner's mother, the owner of the car, testified

that it was a 1971 model. R. 65.

petitioner's alibi until sone time later. Detective Blackwood

testified that he did not secure a warrant to seize a red shirt

with blue horizontal stripes which he saw hanging on a

clothesline near petitioner's trailer, ibid., and that he did

not check the Ssneeventin of the prosecuting witness or

petitioner's outer garments, underclothes, fingernails or other

body parts for evidence. R. 52, 53. The police did not secure

a warrent ond search the 1971 Maverick petitioner had been

driving on Mav 23, although they saw this car parked near

petitioner's trailer. R. 53.

Petition testified that on the morning of May 273, 1973,

he left his home at 7:30 a.m., Grove his mother to work at

Memorial Hospital, delivered three children to a nursery school,

repaired a flat tire on the car, and then drove to Durham,

North Cerolina, twelve miles from Chapel Hill, for a 9:00 a.m.

job interview at the Bronson Tire Company. At about 9:15 a.m.,

he had an interview with one Bill Austin there, and then pro-

ceeded back to his trailer in Chatham County, arriving at

approximately 9:45 a.m. Petitioner stated that the job inter-

view had been set the previous afternoon, May 22, by @ man

named Locke at the Snelling and Snelling Employment Servic« in

Chapel Hill. On cross examination, the State introduced an

appointment card written by this agency for an interview at

8/ See pp. 37- 40, infra.

Bronson's for petitioner at 9:00 a.m., May 22. Mr. Bill

Austin, the manager of Bronson's testified that he had seen

petitioner for a job interview between 9:00 a.m. and 10:00 a.m.,

but that he could not remember whether this meeting had occurred

on May 22 or May 23. R. 67, 68. Petitioner also stated that he

had worn maroon pants and a pinkish-red shirt on both May 22 and

May 23 because all of his other clothes were packed. He admitted

having worked as a vacuum cleaner salesman in October, 1972.

Petitioner's mother, Mrs. Loulabelle Noell, testified that

he had droppel her off at her job in Chapel Hill at 7:50 a.n.,

May 23, and that he had been wearing maroon pants and a flowered

shirt. A witness testified that petitioner had brought three

children to the Chapel Hill Cooperative Child Care Center on

May 23, sometime after 7:30 a.m, Petitioner's wife, Barbara

Noell, testified that petitioner had helped her move into a new

trailer all morning May 22. She also stated that he left home

at about 7:30 a.m., May 23, and had returned about 9:30, and

that he was wearing a pair of burgundy slacks and a purple,

yellow, and white shirt on both May 22 and May 23.

Petitioner returned to the stand to testify that he recalled

visiting the Snelling and Snelling Employment Service in the

early morning of May 22 as well as in the afternoon. Mr. Roy

Locke then testified for the State in rebuttal that he was an

employment counselor at Snelling and Snelling and that he had

seen petitioner who was wearing a “red tank shirt,” R. 74, at

» ihe

8:00 a.m., May 22. He said that on the previous day, May 21,

he had set up an interview for petitioner at 9:00 a.m., May 22,

at Bronson's Tire Company, This witness testified that he made

no change in the interview time, but that he did not know when

the petitioner went for the interview.

During the selection of the jury at petitioner's trial, the

State examined the veniremen extensively regarding their atti-

tudes toward capital punishment. Over petitioner's objection,

ten veniremen were excluded for cause on account of their death

a /

scruples. The trial court denied petitioner's challenge for

cause to a white venireman who stated that she had feelings

“against" interracial marriage which “probably could" affect

her consideration of the testimony in the case, R. 19, and to

a white venirenan who said he was “not sure" he could vote to

acquit if he had a reasonable dovbt shout petitioner's quilt

unless that doubt was “strony enough," R. 24. Petitioner was

forced to use peremptory challenges to excuse these venire men,

and by the end of voir dire hod exhausted all of his peremptories,

Six of the forty-seven veniremen examined for the selection of

10/

petiticner's jury were black; three were excluded by the

State for cause on account of their acguaintance with petitioner,

iL’

one was excluded for cause on account of his scruples against

capital punishment, and the remaining two were excluded

peremptorily by the State,

9/ Veniremen Waqner, R. 19-20; Rogers, R. 21; Tony, R. 22;

Miller, R. 22; Snipes, R. 23-24: Dennis, R. 23-24; Beaver, R. 27-

28; Whitted, R. 29-30; Pennell, R. 30-31; Parsell, R. 31.

10/7 Veniremen Henry Alston, R. 15-16; Katherine Alston, R. 17-

18; Stone, R. 16-17.

11/7 Venireman Whitted, R. 29-30.

127 Veniremen Daye, R. 18; McAdoo, R. 26-27.

- ]z =-

Cs EE es

The State presented testimony from North Carolina Memorial

Hospital emergency room nurse Mary Ford that Miss DiCenzo had

been given a “rape examination" on the morning of May 23 and

that various other tests had been conducted; but the results

of the examination and tests were not introduced. R.%42-44.,

Petitioner's wife testified in support of his alibi, and stated

that she married petitioner on March 17, 1973. R. 68. On

cross examination, she testificd, in response to a question by

the Solicitor, that her child was due on September 30. R. 72.

At the conclusion of the evidence, the trial judge charged

the jury that it could either find petitioner not guilty or

guilty of rape as charged. The jury returned a verdict of guilty,

and the court thereupon sentenced petitioner to die.

On February 25, 1974, the Supreme Court of North Carolina,

with three Justices dissenting in regard to the death penalty,

affirmed petitioner's conviction and death sentence. On March

4, 1974, Chief Justice William A. Bobbitt of the North Carolina

Supreme Court stayed execution of the judgment in order to aklow

a petition for writ of certiorari to be filed in this Court.

On May 16, 1974, Mr. Chief Justice Burger granted an extension

of time until July 6, 1974 in which to file a petition for

certioreri.

@ i3 «

HOW THF FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

I. Petitioner's Grouping of Exceptions and Assignments of Error

(R. 120-126) in the Record on Appeal in the North Carolina

Supreme Court assiqned as error the death sentence in this cape

on the ground that;

The defendant's rights under the Fifth,

Sixth, Eighth and Fourteenth Amendments of

*‘e Constitution of the United Staces and

wder Article I, Section 27 of the Consti-

tution of North Carolina were violated:

1. By the imposition of the death

penalty sentence upon defendant, which

penalty for rape is crvel and unusual

punishment within the meaning of the

said constitutional provisions.

Assignment of Error XXIV, R. 126. In his brief in the North

Carolina Supreme Court, petitioner contended that, "The Death

Sentence Inposed Upon Appellant Is Legally Unauthorized and

Constitutes Crue] and Unusual Punishwent Prohibited by the

Eighth and Fourteenth Amendments to the Constitution of the

United States." Brief of Appellant at 65-141. The Court

rejected this contention: “The death sentence was, therefore,

not only proper but was the only one that the court below could

impose." 202 S,E.2d at 669-670 (App. A at 20a-21a).

Il. Petitioner objected to the exclusion for cause of veniremen

on the basis of their conscientious scruples against capital

punishment on the basis that it denied him a “representative jury"

R. 22, and he excepted to the challenge of each of the ten

veniremen who were excluded for cause on these grounds. Exceptions

7, 9% 10, 11, 12 (an exception to the exclusion of two veniremen),

16, 17, 18, 1%. Petitioner assigned these exclusions as error

on the following grounds:

The defendant's rights as protected by the

Sixth and Fourteenth Amendments to the Con-

stitution of the United States, and parti-

cularly his rights to due process and the

equal protection of the laws as quaranteed

thereunder, were violated by the exclusion

of jurors who opposed capital punishment in

that:

1. Defendant's rights to due process

and equal protection of the laws as

protected under the Fourteenth Amendment

to the United States Constitution were

violated when potential jurors with

scruples against capi fe) punishment were

excused for cause in violation of the

principles stated in WITHERSPOON v

ILLINOIS.

2. Defendant's riqhts under the Sixth

and Fourteenth Amendments to the United

Staten Constitution to a fair, impartial

and representative jury were violated by

the exclusion of those prospective jurors

with scruples against the imposition of

capital punishment;

3. Equal protection of the laws as

gueranteed by the Fousteenth Amendment

to Lin United Slaies Constitution wend by

Article 1, Section 19 of the North Carolina

Constitution was deniea when that class

comprised of those with scruples against

cupital punishment was prevented from

sitting as jury members in this case.

4. Defendant's constitutional rights as

protected by the Sixth and Fourteenth

Amendments to the United States Constitution

were denied in that barring those with

scruples agqainct capital punislment prevented

defendant's trial by a jury from the district

in which the crime was committed.

Assignment of Error IV, R. 121-122. Petitioner's brief pre-

sented these contentions. Brief of Appellant at 25-27. The

Court rejected these arguments: “Under Witherspoon, ... we

hold that these . . . jurors were properly excluded for cause."

202 S.E.2d at 761 (App. A at 12a).

III. Petitioner's Grouping of Exceptions and Pn aaron of

Error in the Record on Appeal in the North Carolina Supreme Court

assiqned as error the Solicitor's suggesting through examination

of a prosecution witness that evidence, never in fact produced

' .

’ '

= ' 5 oe % . . -

court's ref il to « ] for caus¢ i wnite venireman who

- stated he \ not sur whethe, e would vot to acquit f

. , , e

he } } a reas ible doubt of pet ioner's guilt

+ rr ‘ f — , T t »>2\ . ,

( , ry . R. 12 - et +i 0NeY a | 5 cl :

> ate

"; ty ’ ; ery sé 1? nw ’ ’

f i ? ’

. . ‘

‘ ‘ ,

; ‘ 4 y

‘ }

. :

‘ ,

fy ’ ’ : , 4

Ss > ,

} 4

’

: ,

j F

' :

’ ; PI

, ° 7 . ,

. : . — : 7

. . D. - at } ia, LZ | °

I. THE

Wil

SEN

THE

In order t

repetitious mat

the Writ" secti

Court of North

(O.T. 1973, fi]

the issues set

(A)

(C)

RFASONS FOR GRANTING THE WRIT |

ee ee ee eee - ee - --

—-—-

COURT SHOULD GRANT CERTIORARI TO CONSIDER

THER TIE IMPOSITION AND CARRYING OUT OF THE

TENCE OF DEATH FOR THE CRIME OF RAPE UNDER

LAW OF NORTH CAROLINA VIOLATES THE EIGHTH

POURTLENTN AMENDMENT TO THE CONSTITUTION

Tiki UNITED STATIS.

ter, petitioner adopts the "Reasons for Granting

m of the Petition for Certiorari to the Supro

Carolina, Dillard v. North Carolina, No. 73-

cd June ll, 1974), at pp. 11-5) and each of

forth there:

Whether the decision of the North Carolina

Supreme Court reinstating the death penalty

in that State following Furman v. Georgia,

408 U.S. 238 (1972), is an impermissible

evasion of the Furman holding;

Whether such a reinstatement of the death

penalty by judicial decision violates the

Eighth and rourteeath Amendment commands

of lawfulness in crimina) punishments;

Whether the perpetuation of arbitrary

sentencing discretion in North Carolina's

administration of the death penalty

following Furman violates the constitutional

rule of that case;

e 16

(D) Whether the death penalty is so inconsistent

with contemporary standards of decency as to

violate the Eighth and Fourteenth Amendments.

The remaining Eighth Amendment issue presented by this case

is whether the death penalty is an excessive, disproportionate

and aberrational punishment for the crime of rape when that

crime results in no considerable bodily injury. The question

is one on which a conflict apparently exists between the

North Carolina Suprei Court and the cognizant federal Court

of Appeals. See Ralph ov. Wa n, 438 P.2d 786, 793 (4th Cir. 1970)

cert. denied 408 U.S. 942 (1972).

Restraints upon excessive punishment run deep in the Anglo-

13,

American tradition, and their cxpression in the Eighth Amend-

ment waS a principal ground of decision in Weems v. United

States, 217 U.S. 349 (1910). Although the punishment involved

in Weems was peculiar and outlandish in nature, cond mnation

of it rests expressly upon the oppressiveness of that punishment

for the crime of falsifying public records, and its consequent

lack of “adaptation of punishment to the degree of crime." 217

U.S. at 365. Sec also O'Neil v. Vermont, 144 U.S. 323, 337,

14/

339-340 (1892) (Justice Field dissenting); Hart v. Coiner, 483

13/ Magna Carta contains three chapters requiring that amerce-

ments be proportioned to the measure of magnitude of offenses.

MAGNA CARTA, ch. 20-22 (1215), printed in ADAMS & STEPHENS,

SELLCT DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY (1926)42,45.

14/ Justices Harlan and Brewer agreed with Justice Field that

O'Neil's long jail sentence was excessive “in view of the

character of the offences committed," 217 U.S. at 366, 371,which

were liquor law violations. ‘The majority of the Court declined

to reach the merits of the question because it was not properly

presented and because the Eighth Amendment was not then viewed

as a restraint upon the States. 217 U.S. at 331-332.

o 19 «

This

and }

SC 1

S ]

] . LOY

enti)

i] (

ciliGi, Jia

cr t \

the |

r? ,

i J

‘er 1]

toda 1

J i

15/ UNI

CAPJ

survey

“natior

and col<

Cig

1973) .

cert. denied,

139 (4th eve ‘

R21 (1974)

constitutional requirement of adaptation is not

me it de not command a commensurability of crime

that neither legislaturesn courts, nor the

f } Le ‘ é ufficiently informed to calibrate.

. ' nt Pit } Cri » @7 HARV. L.

1078-3080 (1964), However, wuld ignore th

‘ ‘ cr] ! , ie tem to deny tha t }

] thei ousr is endemic to it;

is cont , the Eighth A ent's prohibition of

] ’ ) | } 5 one resty IcltjiIOoO1 } ;

oO 1 Stat to |} cn | al tly in affi ng maxi i

i¢ ‘ | CY °

c } for rape as that ponalt

t« } hoy \ ¢ i ) ’ . W Bs Ae

} ‘

19 2° . 19 (] J, SG), Liid “ { i re left Luisa

Ya) . For th t 3 that such a pun .

rit i) thy fal = t ré 2 Rap l every rors

off e, but it is punished by « th in

r out } ts United Stat : Taiwan, 4an ,

15/

1 th bli of South Africa. Prior to th

NAT (ENT CONOMIC AND SOCIAL AFTALi

dj ( ° iJ ii Ol A | fauNi Ne dithe & ,

{ 10) (] } +, OD. 40, 46. Thi

s ba u } pol ré ived from governments oO!

P . ” . ; . ; ’

| ited itions] corr pondent in 109 countris

. ] ls it 4-5.

e 20 @&

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE EXCLUSION FOR |

CAUSE OF TEN VENIREMEN ON THE GROUNDS

OF THEIR EXPRESSED ATTITUDES TOWARD

THE DEATH! PENALTY VIOLATED PETITIONER'S

RIGHTS UNDER THE STXTH AND FOURTEENT?!

AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES,

The record below presents important issues concerning

the constitutionality of excluding persons who oppose capital

punishment from service on trial juries in capital cases tried

under a purportedly “mandatory” death-sentencing procedure.

Notwithstanding Witherspoon v. TWinois, 391 U.S. 510 (1968), the

Supreme Court of north Carolina here upheld the exclusion of ten

veniremen on the ground that “each of these prospective jurors,

before heering any of the evidence, had elready made up his mind

that he would not return a verdict in this rape case pursuant to

which the defendant might lawfully he executed, whatever the evi-

donce might be." 202 S.E.2d at 761 (App. A at 12a). That holding

presents issucs of general significance, which should be determined

by this Court.

A. The Test Exclusion Applied by The Court

Below Did Not Meet the Minimum Standards

Reguired by The Constitution As Construcd

in Witherspoon v. Tllinois, 391 U.S. 510 .

A number of guestions concerning the applicability of

Witherspoon are presented by this case, for that decision held

that "[i}t the yoir dire testimony in a given case indicates that

veniremen were excluded on any broader basis than [that outlined

in Witherspoon) ... , the death sentence cannot be carried out.”

391 U.S. at 522 n. 21 (emphasis added). See also Maywe)l v. Bishop,

398 U.S. 262, 266 (1969); Bovliden v. Holman, 394 U.S. 478, 482

(1968) .

First, the exclusion of venireman Rogers was in flat

violation of the Witherspoon requirement that a venireman may not

‘ be excluded for “voic[ing] genera] objections to the death penalty

or express[ing] conscientious or religious scruples against its

infliction. Witherspoon v. Illinois, supra, at 522. This venire-

—_— —

man was excluded on the basis of the following examination:

SOLICTTOR: And Mrs. Rogers, let me ask you

the sar question, that I have been asking.

it ] impossible for you to bring in a

—.

verdict requ) t hi ImMpo tion ) t} deat}

penalty, wu: t circumstances, no tte:

even though ti State pro to you th aeten-

Gant's quilt } reaso le doubt?

again, your r in mind, please. Would

it } 1? sible to ing 1) + verdict that re

qu) 1 th i ition o t} death penalty, no

matter what the State showed you, by way of th

evidence?

JURO : T think so.

MR. PII : We challenge her for cause.

COURT: ‘J challenge 3} ustained,

MR. EPTING: Object Sie

COURT: The objection is overruled.

R. 21. If Witherspoon has any application to capital trials in

which the j purportedly does not decide the issue of punishment

» he,

the triel « * é lusi C this juror was reversible error, *

22/ The Covrt « A} tls for the Fifth Circuit has recoqnized

thet t} ni venir : mafully excluded on account

scrup] against the death penalty is irrelevant:

The magnitude « i decision to take a human life ;

is pre b] unparalleled in the human experience

of & ember of a2 civilized ciety: indeed, many

ag 1 or religio grounds that it 1

in hensib] that an advanced ciety such as

ours shoul et engage in ich practice. Given

the weightin f the subject involved it really

a not fol] t t the improper exclusion of a rel-

ati ly s ll nu of th total venir en exami ]

Gor not pre judi tl defendant's rights to an is

partial cross-section of the community. Where, as

here, unanimity of decision is required to impose

the death sentence, the stark reality is that onc

improperly excluded ‘juror may mean the difference

betwenn life or death for a defendant Although a

defendant : é

perly empaneled jury will not imposc

penalty, it seems to us that in light of the vast

difference in treatment which may result from the

improper exclusion of a single venireman, even that

degree of error is prejudicial to the rights of a

defendant in a capital case.

» 24-6

Second. This Court should determine whether scruples

against the imposition of capital punishment in all circumstances

can he made"“unmistakably clear," as required by Witherspoon, 391

U.S. at 522, n. 21, in the absence of an instruction by the trial

court that it is the civic duty of each venireman to sit as a

juror if he possibly can. As the Court declared in Boulden vy.

jolman, 394 U.S. 478, 483-484 (1969): “[I}jt is entirely possible

that a person who has ‘a fixed opinion against' or who does not

‘believe in’ capital punishment might nevertheless be perfectly

able as a juror to abide by existing law -- to follow conscicnt-

iously the instructions of a trial judge and to consider fairly

the imposition of the death sentence in a particular case." A

venireman must be instructed that the law requires him to “sub-

ordinate his personel views to what he . . . « [perceives] to be

his duty to abide by his oath as a juror and to obey the law of

the State," Witherspoon vy, Lllinois, supra, at 514-515 n. 7.

Although a mumber of the excluccd venireren here stated that they

would “nutometically" vote against @ verdict which entailed the

imposition of a death sentcnce, none of them was given any in-

struction on their duty to subordinate their beliefs to the Ja.

of North Carolina that would be given them by the trial court.

Third, the Court should decide whcther the voir dire

here was in some cases simply too brief to determine with “unmis-

takabie" certainty, Witherspoon v. Tllinois, supra, at 522 n. 21,

_—

22/ cont'd.

Marion v. Beto, 434 F.2d 29, 32 (5th Cir. 1970). This Court has

reversed convictions when only three veniremen were wrongfully ex-

cluded, Sequra_v. Patterson, 403 U.S. 946 (1971), rev'g, 402 F.2d

246 (10th Cix. 1906); Lacctto v. Masgachusetts, 403 U.S. 947 (1971),

rev'g 254 N.E.2d 415 (1969); and a mumber of other courts have

held that the wrongful exclusion of a single venireman was re-

versible error. Woodards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio

1969); People v. Schager, 80 Cal. Rptr. 1, 457 P.2da 841 (Sup. Ct.

1969); In re Hillery, 79 Cal. Rptr. 773, 457 P.2a 656 (Sup. Ct.

1969). In the instant case, of course, nine other veniremen were

excluded.

eo 25 «

ee ee

}

n¢ )

— — bd

-— . v.

m - —

« -

- ~ . .

om ~

. . “an “

. 2 = .

. ? -

_- p

—

* ** : “

4 om **

er i-

+ ve 7)

- . - ‘

ww _

- 4

- . e °

« _ - : a

~ 4 -~ + = Y A a WA

’

~ - 4

ee ee — _ _

the guilt of the defendant in this case of the

Crime charged, would you find it impossible to

bring in a verdict of guilty, under any cir-

cumstances, knowing - beceuse of the capital

Penalty? ...

Would you?

JUROR TONY: Yes, sir; I would.

MR, PIERCE: You would find it impossible to,

under any circumstances, to bring in that ver-

dict, Mrs. Tony?

JUROR TONY: Yes, I would.

MR. PIERCE: Your Honor, we would ask that

Mrs. Tony be excused for caugc,

COURT: The challenge for cause is sustained.

MR. EPTING: Note our continuing chjection, on

the basis of a representative jury.

counrT: The objection is overruled. Call in

another juror.

R. 21-22.

Finelly, the Court should decide whether Witherspoon

scientious scruples against the imposition of the death penalty

for rape, in a case where the victim is not otherwise injurcd.

For Venireman Dennis was excluded not because of inflexible and

cateyorical conscientious scruples against the death penalty, but

because -- in the exercise of obviously selective judgment -- he

opposed that penalty for rape:

MR. PIERCE: Would you find it impossible

to bring in such a verdict, that required the

death penalty, under any circumstances? You

can think about it.

JUPOR SNIPTS: It would be impossible; yes.

MR, PIERCE: How about you, Mr. Dennis?

JUROR DENNIS: I really don't know.

MR. PIERCE: Let me put the auestion to you

the same way, would it be impossible, under any

circumstances, even though the State had satis-

fied you beyond a reasonable doubt, from the

evidence in the case, as to the defendant's guilt,

to bring in a verdict which resulted in the

death penalty?

JUROR DENNTS: Well, for what this is, I'd

have to say yes.

MR. PIERCE: In a rape case, you couldn't

ao it?

JUROR DENNIS: Right.

MP. PIERCE: Your Honor, the State would ask

that these two gentlemen be excused for cause.

MR. EPTING: The defendant would like to have

Wor. Dennis examined somewhat further, as to his

objection of the death penalty. 1 believe he

understoud, unless in this type of case; is that

right, Mr. Dennis?

» 37 «

As the Court has clarified the nature of the “jury”

guaranteed in state-court proceedings by the Sixth Amendment,

the importance of the cross-section requirement has become

increasingly highlighted, and the permissibility of death quali-

fication has become increasingly suspect. Williams v. Florida,

399 U.S. 78 (1970) held that a jury of twelve was not an essen-

tial port of the Sixth Amendment right, since the key function of

the jury wos to provide a group representative of the community

which would prevent Government oppression ef criminal @efendants.

"[Tihe essentio)]) feature of a jury obviously lies in the inter-

position between the accused and his accuser of the common sense

judgment of a group of laymen, and in the comeunity participation

and shared responsibility thet results from that group's deter-

mination of guilt or innocence.” 399 U.S. at 100. The Sixth

Amondment required only that the jury be large enongh “to pro-

vide ® fair porsibility for obtaining a representative cross-sec-

tion of the community ...”* Ibid. In Anotuca wv. Oregon AO0%

& ,

< ee ee ee

U.S. 404, 410 (1972), the Court similarly ruled that the Sixth

Amendment did not require state jurier to reach a unanimous ver-

dict, because the jury's common sense judgment could still be

rendered without unanimity “as long ar it consists of a group of

Jaymen representative of a cross section of the comaunity."

the principle that no identifieble group may be systema-

tically excluded from jury panels is not limited to cases invol-

ving race: see White v. Crook, 251 F. Supp. 401, 408-409 (M.D.

Cir. 1966), cert. denied, 386 U.S. 99) (1967) (exclusion of wage

23:/ The Court remarked the fact that in capital cases, no State

provided for less than twelve jurors; it concluded that in death

cases, this fact “suggests implicit recognition of the value of

the larger body as a means of legitimating society's decision to

impose the death penalty.” 399 U.S. at 103.

- 29 - > |

— ’ hy " ‘ ‘4

4 , + ; ‘ ;

, ;

;

’ ‘

. ;

; . . . .

‘

; ‘

4 ;

Veniremen Snipes and Wagner cannot be excluded for cause.

27/ {MP. PTERCHE] Mr. Snipes, let me go ahead and get to

this question. Let me ask you, would... you find it

impossible, under any circumstances, to bring in a ver-

dict which resulted in the imposition of the death pen-

alty, even though theState satisfied you beyond a reason-

able doubt of the defendant's guilt, from the evidence in

this case?

You wouldn't have any trouble, Mr. Snipes?

JUROR SNLPTS: T wouldn't bring in that kind of a verdict.

Mk. PTENCE: Would you find it impossibie to bring in

such a verdict, thet requiree the death ponaltly, «nder any

Circumstances? You con think about it.

JUROR SUTIPMS: It would be impossible; yes.

MR. PTURCH: Let me ask you this? Would it be im-

possible for you to bring in a verdict of guilty,knowing

thet that would be a verdict for--to bring in a verdict of

guilty, even if the State satisfied you beyond a reasonable

doubt that he is quilty?

JUROR WACNER: Mean to be convicted, that he would be

hilled?

MR, PIFSCFr: Lady, sentenced to Geath.

JUNON WAGNER: We would be sentenced if i--we all

aqrecd, we twelve agreed you had proved without a coubt

he was guilty:

Mk. PIaNCk: Would it be impussible to bring in

such a verdict, no matter what the State proves?

JUROR WAGNLK: Yes.

R. 20.

Iil. THE COURT: SHOULD GRANT CERTTORARI TO

CONSTI WUETHER PETITIONER'S RIGHTS

GUARANTED BY THE SIXTIT AND FOURTEENTH

AMOND) ls TO THE CONSTITUTION OF TH

INITED STATES WERE VIOLATED BY Till

CALCULATED MISCONDUCT OT! lib PROSECUTOR

IN: (a) IMPERMISSIBLY SUGGESTING

THROUGH EXAMINATIO OO” A PROSECUTION

WITS LHAT EVID! ICE, NEVER IN FACT

PRO -eD AND NOT SUBJ] ' TO CROSS } M

1] vile ‘* LO Pn i | j i PROS EC II I'S

CASE; AND (b) ELICIT"! rROM Vi Willy

y i! ‘ hu | ,) ! Yr Ci ( j wil

|’ ! , j PAC ] ]

] ‘ " ( } ; } C%\ J | )

PRI i Bt LfsGlie

( aro ! conduct in tl petit the

rj : \ { } VU} ] ty of Lh ‘ i

ls. On one « ion, the pro tis

( t }) } } li | lic ! si

Cy, ? } ;

{ . ‘ | " Tar

\ i j oO thi y »} 1? it,

. ! M } f J t Lé if e | iJ DY iF \ c

t q ] ua {« i < ] |

: ,

Ltne ’ | i { LO v > Wa Cc )2 (

4 lt ‘ . ] Vi t i *, ‘] } iy j j } »)

Lf) Ol m Se — ma ansy Wa th

’

’ ! ' ;

ratic 11d have been present but for th

111 of th l toy .

nation in qt tion pro ed as follows:

(MR. PIERCE) 1 M Pord, Mrs. Ford,

t t conduct t re t the hospital

})

(nih , ‘ ‘ ,

if ‘ )) Y +s thie C.

(MR. PI ) 3 t wo) they, ii you know

] own knowlLe rs

(M&S. FORD) There were slides done, sur-

n, buvble secretion, which is

COURT: The motion is allowed. Do not con-

th last statement.

° pre mant Wiic, who wa test ifyi | in his b half, wh n the two

had »o mn marricd and when their hild was due. The obvious if

plication of th ceries of questions was that the child had becn

col t f 1 ; In an interracial ray pro tution of

:, .

a b i ry to a \ te woman, thi revelation \

as ¢ } } ‘ ne 1 tend: ry i«

‘ ’ {-¢ } ) ? ‘

{ ] l l ! i ‘

} ( ? t , un ( | c¢ ' e

As % o I _ » a .

a). (? - ) ‘ Wd no ’ ;

hy f ; {

5 ] Y i t i

° } s

. \ ‘ } \ f }

bs ( . .

> . \ ‘4

As { °

f we | f | | | } } ’ ,

vA ‘ ‘ a’ i i ¢ i 2) ; '

1 . a l, I } vit

i¢ | ( ' , . ' i¢ if

Co? ; t t hy ‘ t } 1] ) ;u i

ot i : Provi i, th th

" i U Wil } Of ); Lj

oUun . és) t yiolatin an provi

) { ti ] Li j i j

" j i I t f | i: 4

doll 10.00), impr ' 1t for not

mor thai 1 iths, or both.”

This Court has insisted that a strict standard of fairness

be observed »y prosecuting officers, both federal and state. See

antohello v. Now York, 404 U.S. 257 (1971); Giglio v. United

oo —_ —_——

Hee]

States, 405 U.S. 150 (1972), and cases cited. "While [the

pros: cutor] . . . may strike hard blows, he is not at liberty to

strike foul ones." Berger v. United States, 295 U.S. 78, 83

(1935).

The degree of prejudice required to render prosecutorial

coaduet coyniveble as a due process violation takes account of

the gravity of the prosecutor's violation of this standard:

""j,> reason why the showing of

prejucice required to bring down

the balance in favor of a new trial

will vary from case to case in that

the pans contain weights and covunter~-

weights other than the interest in a

perfect trial, Sonetimes only a small

showing of prejuiice, or none, is de-

monae? beeause that interest is rein-

foree’d by the necessity that *Tho

administration of justice must not

only be above reproach, it must also

be beyond the suspicion of reproach.’

People v. Savvides, Supre, and by the

teaching of experience that mere ad-

monitions are insufficient to prevent

repetition of abuse. Sec Mapp v.

Ohio, 397 U.S. 643, 650-653 (1961).iIn

other cases, where the conduct of the

trial has been less censurable, or

not censurable at all, a greater show-

ing of prejudice is Gomanded. « « -«

Kyle v. Unite! States, 297 F.2d 507,

at 514 (2d Cir. 1951).

The prosecutor's abuses here were plainly willful, and conse-

quently of the gravest sort. Each was highly prejudicial both

intrinsically and in its calculated design to defeat independent

Fourteenth Awendment rights of a defendant on trial for hislife.

For, the evidence relating to medical tests not only gave inad-

missible support to the prosecutor's case, but also called upon

— o

—

_ “4

~ \

. a

‘S)

” y

aoe --

IV. THE COURT SHOULD GRANT CERTIORARI TO CONS TDER

WHETHER PETITIONER WAS DENIED THE FUNDAMENTAL

FAIRNESS IN CRIMINAL PROSECUTIONS GUARANTEED

BY THE DUL PROCESS CLAUSE OF TIIE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE UNTTED

STATIS WHEN THE POLICE FAILED ADEQUATELY TO

INVESTIGATE THE CRIME FOR WHICH PETITIONER

WAS CONVICTED.

In Giles v. Maryland, 386 U.S, 66, 73-74 (1967), the Court

considered “the broad questions whether the prosecution's consti-

tutional duty to disclose extends to all evidence admissible

and useful to the defense, ard the deqree of prejudice which must

be shown to make necessary a new trial," although the decision

in tnut case rested on narrower grounds, In Wardine yv. Oregon,

412 U.S. 470, 474 (1973), the Court held that the Due Process

Cleuse “speat{[s] to the balance of forces between the accused and

his aceuser," and reversed a conviction on the ground that

“fundasentsl] fairness" reguired reciprocal discovery if a State

compelled a criminal defendant to disclose alibi evidence in

advance of trial. This petition presents the important question

whether, in a case where an indigent Gefendaut is charged with

a capital crime and held in jail without appointed counsel, the

State's qualified duty to disclose evidence useful to a defendant

compels investigation of an alibi with reasonable dispatch end

the use of certain other normal investigative techniques in order

to preserve the defendant's right to a fair trial.

Petitioner was arrested on the day Miss DiCenzo was raped.

When questioned at the police station, he repeatedly proclaimed

his innocence and asserted that at the time of the rape he had

been in Durham, North Carolina, at a job interview with an

executive at a tire company. R. 52. At trial, petitioner's wife

and mother testified in support of this alibi, R. 69-70, 65,

« 37 «

his fingernails or pubic hair for possible evidence that he was

the person who attacked Miss DiCenzo. |

Although the police are normally free to adopt whatever inves-

tigative methods appear most effective, the failure of the police

to check petitioner's alibi severely prejudiced him, since it

resulted in his inability to secure what wel] cculd have been

important exculpatory evidence. The Court should grant certiorari

to determine whether the police investigation in this case, pri-

marily the failure to check an alibi, when a capital defendant

strongly proclaims his innocence and gives an exculpatory state-

ment which covld be confirmed by one phone call, constitutes a

fundamentally unfair practice which results in the suppression

of possible exculpatory evidence. Cf. Mooney v. Holohan, 294 U.S.

103 (1935); Napve v. Tilinois, 360 U.S. 264 (1959); Alcorta v.

Texas, 355 U.S. 28 (1957); Brady v. Maryland, 373 U.S. 63 (1963);

Miller v. Pate, 386 U.S. 1 (1957). A violation of bue Process

has been found when a defendant, charged with driving uncer the

influence of alcohol, is arrested and kept in jail without a

lawyer if the police do not perform some kind of tests which will

determine the presence of alcohol in the defendant's system;

because of bodily metabolism, such crucial evidence will be lost

without either prompt action by counsel for the defendant or by

the authorities, and courts have recognized the fundamental

unfairness of denyiny both such alternatives to a defendant.

See In re Martin, 58 Cal.2d 509, 24 Cal. Rptr. 833, 374 P.2d 601

(1962); Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611

(1948); City of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867

(1966). ‘The claim that police investigatory tactics have deprived

—

on 1

tion

tion.”

id. at

petit ji

for whicn

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDLR WHETHER THE PROCESS OF SE-

LECTING PETITIONER'S TRIAL JURY IN AN

INTERRACIAL RAPE CASF SENIED PETITIONER'S

RICHTS GUARANTEED THE SIXTH AND

FOURTEEN’ MENDMENTS TO THE CONSTITU-

TION OF THE UNITED STATES WHEN: (a)

THE TRIAL COURT DENILD PETITIONER'S

CHALLENGE TO A WHITE VENTRE-

CAUSE

Vil A

“*

ror

MAN WiTO EXPRESSED “FEELINGS ACAINST

INTERRACIAL MARRIAGE" IN A CASE WHERE '

Tiikk BLACK PETITIONER AND HIS WHITE

WIFE BOTH TESTIPIFD; (b) THE TRIAL

COURT DENTLD vYETITIONER'S CHALLENGE

FOR CAUSE TO A WHITE VENTREMAN WHO

STAT j WAS “NOT SURE" WHETHER HE WOULD

VO TO ACOUIT IF NE HAD ONLY A REASON-

ARLE DOULT OF PETITIONER’ GUILT; AND

WRI Bee £8 i Tim JURY THROUGH THE

INTHOACTT( ( ROS HCUTORIAL CHALLENGES

FOR CAUSK ON TNR CROUND OF CONSCLENTIOJS

SCRUP] ACAINST CAPLTAL PUNISHMENT AND

Tit Pl LCUTOR'S EXERCISE OF HIS PERENP=-

TO! CIHLALGENGES «

Yhis Court has noted in several contexts the particular coa-

cern of tI rt ith A: ent against race discrimination in

a_ /

the jun sole precess,. In the prosecution of a black de-

fend for the all rapo of a white victim, where the only

available p lty is death, the importiun of a jury selection

Bf Eedee Pel . Kiff, 407 U.S. 493 (1972). “[S)ince a prin-

cipal pu of the Fourtcenth Amendment was to prohibit the

Stat ft avidiously discriminating on the basis of race,"

yudaes net refu L« tate criminal proceedings to allow rol-

evant it rojgation of jurors “upon the subject of racial preju-

dice." H . South Carolina, 409 U.S. 524, at 525-26 (1973).

Moreover, de ite the normai rule that the defense and prosecu-

tion are pe? thed te « rcise peremptory challenges “without

a renson stated, without inguiry and without being subject to the

court's control," Swain v. Ala! a, 389 U.S. 202, at 220 (1965),

a consistent and syst i\tic exercise of peremptory challenges “to

prevent envy and all jroes on potit jury venires from serving

iry itself"would constitute “invidious discrinina-

the peremptory system is insufficient justifica-

273

emwve

. .

proce

«.4 ‘

. L at

}

;

parent.

, y

i ‘~

. ‘

’

¢c

;

‘

wil

taint

ric j by

for cau

}

’

‘

’

« |

Ps ,

‘

‘ .

lyi

3 j

, 7 .

: 4 i

i‘

. ;

s/t

| ‘

i / j

‘

ta tt}

y ¢

’)’¢)7T

’

}

;

. J

‘

g*y

] '

; » 5

’ "

yf) }

an <é

‘ Li;

. ;

i .

Ul A424

'» } ,

} } il

‘ ’

P ] Ld ]

cris

‘

il.

)

ee oe

, .

‘ _

ce c .

- . ‘N

- —- |

: .

- - =

" .

* . . .

“ . > -

“ ( - .

. - ™

. . .

. - . “ ° NS

“

. —" .

— . ;

. ~

e . .

! -

° . ~ E <

or)

, 410 U.S. 284, at 302 (1973), and

‘ts and circumstances of this case the

petit ioner] of a fair

- Petit nor rm? ; 17 ; r tition for a writ of certiorary)

} ep 04 4 Pius « } toad

i ’

| |

\ j

}

) . ‘ ;

é , .

" .

’ , 4

( ’ }

‘ , ‘

{ }

‘

. ,

}

5 |

’ ‘

> j ;

: , }

° ,

" . ’

, i

‘

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.