Petition — Honeycutt v. North Carolina

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

October Term, 193

er er a

BILLY HONLYCUTT,

Petitionc Ye

a“V.°

STATE OF NORTH CAROLINA,

Respondent.

- eee oe + ee

PETITION FOR WRIT OF CLRTIOM'.RI TO THL

SUPROME COURT OF NORTH CAROLINA

RUSS@ELL J. LANIER, JR.

P. O. Box 87

Kenansville, North Carolina 20349

ADAM STiN

Chanbers, Stein, Ferg

157 Last Roserary Strect

Chapel ill, North Carolina

* ,

uson & La

JACK GREENTLLRG

JAMES M. NABRIT, III

DAVID EVAN KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTORDAM

Stanford University Law School

Stanford, California %43305

JACK HIMMELSTEIN

435 west 116 Strect

New York, New York 1002

ATTORSNLZS FOR PETIPTICA

INDIX

Page

Citation to Opinions 3c low coe eee ese eereereeeeerseeeeeereeee 1

Jurisdiction coo ee wee eee eee reese esr eseeereeereerereeeeee ee % & eee 1

Questions

Presented eco eeeeesee eee ere ere eeereeereereeeer eee e &

Constitutional and Statutory Provisions Involved...e..-- 2

Statement

cece ce eee ee ee eeeseeeseseeeeseeseseseseeeeeeeeeer?

How the Federal Questions Were Raised and Decided

Below

Reasons for Granting the Writ .eccecccccesccceeececceces 12

Ii.

The Court Should Grant Certiorari to

Consider Whether the Imposition and

Carrying Out of the Sentence of Death

for the Crime of Murder Under the Law

of North Carolina Violates the Eighth

or Fourteenth Amendment to the Consti-

tution of the United StateS wrcccceeecenserecess 12

The Court Should Grant Certiorari to

Consider Whether the Sixth or Fourteenth

Amendment to the Constitution of the

United States Requires that a Transcript

Be Made of the Voir Dire Examination of

Prospective Trial Jurors in a Capitai Case,

So As To Assure a Record of Sufficient

Completeness toPreserve an Indigent De fend-

ant's Rights Against Unconstitutional Methods

of Jury Selection Such as those Condemned by

Witherspoon v. Illinois, 391 U.S. 510 (1968).. 14

Conclusion eeceoe eee ee eee ee seeseeeseeeeeeeeeeeeeeeeeeeeeeee 23

ee ee ee eee e+

TABLIZ OF CASLS

Page

Aiken v. Washington, 403 U.S. 946 rev'g 75 Wash.

421, 452 P.2d 232 C1969) ccccccccescoconcessesesesees 19

Andres v. United States, 333 U.S. 740 (1948) .cccccces 22

Beecher v. State, 268 Ala. 1, 256 So.2d 154

(1971) rev'd on other grounds, 408 U.S.

234 (1972) .ccccccccccccccaccecscesecescceceecceeees 17

Boykin v. Alabama, 395 U.S. 238 (1969) ..ceccccceccecs 22

Brookhart v. Janis, 384 U.S. 1 (1966) ...ccccccceceees 22

Boulden v. Holman, 394 U.S. 478 (1969)... .cccccececees 15,19

Bumper v. North Carolina, 391 U.S. 543 (1968) ....... 5

Carnley v. Cochran, 369 U.S. 50G (1962) ...ceeeeeeceee 22

Dillard v. North Carolina, No. 73-GB75 ceccccceescecs 12,13

Douglas v. California, 372 U.S. 353 (1963) ....-seeees 20

Draper v. Washington, 372 U.S. 487 (1963) ....eeeeeees 20,21

v. Louisiana, 403 U.S. 946 (1971),

Dup? essi .

tate v. Hudson, 253 La. 992, 221

rev'g &

So. 2a 484 (1°69) eeeeeveeeeeeeeeeeeeeeveeeeeeeeeee eee @ 20, 21

Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971). 17

Eskridge v. Washington State Board, 357 U.S. 214

(1958) .ccccccccccccesesceseesseseseseseceseseesesees 20

Evans v. State, 430 S.W.2d 502 (Tex. Ct. Crim.

App. 19GB) cd ceceseceseseeeeseesesesesescoceceeseeeseecor 16

Funicello v. New Jersey, 403 U.S. 948 (1971)

rev'g State v. Forcella, 15 N.J. 263, 245 A.2d

181 (2968) cccceetescceceesececeeseseeeseeeseeeeseosee 15

Furman Ve Georgia, 408 U.S. 238 CROTS) ccocsercescesese 12,13,

Garrison v. Patterson, 405 F.2d 696 (CA10O 1969)...... 16

Griffin v. Illinois, 351 U.S. 12 (1956) .ccccescccsess 20,21

Harris v. Texas, 403 U.S. 947 (1971) rev'g

457 S.W.2d 903 (Tex. Cr. App. 3964) 6066662060668 80660 19

{| :

| Pag:

‘| gn re Gault, 387 U.S. 1 (1967) ..+6- eerrrrey ys att. 20

i 5

it Lane V. Brown, 372 U.S 477 (1963) .ecceceeererererer® 20

| Liddell v. State, 287 Ala. 299, 251 ©o.2a 601 (1971). 17

' Long Vv. District Court of Towa, 385 U.S. 192 (196G6).. 21

| Marion v. Beto, 434 F.2d 29 (CAS 1971), cert. denied

i} 402 U.S. 996 (RSF) cccccscedneneseseeenssese ee rer. 23

Mathis v. Alaboma, 403 U.S. 946 (1971) rev'g 283 Ala.

’ 308, 216 So. 2d 256 (1903) sdeseseeeucevesaeeeeeaneee"™ 15,16

Mathis Ve New Jer: CY 403 U.S. G46 (1971) eeeerveereeer? 15

Maxwell v. Bishop, 398 U.S. 262 (1970) coceecceeeerres 15

Mayer v. City of Chicago, 404 U.S. 189 (L971) eee eee 16

Pilkington v. State, 46 Ala. App. 716, 248 So.2d 755

cert. denicd, 287 Ala. 739, 248 So.2da 757 (L971)... 17

Pruett v. Ohio, 403 U.S. 946 (1971) rev'g 18 Ohio

St. 2d 167, 248 N.E.2d 605 (1959) weeecceeecereerer® 19

Quintana v. Texas, 403 U.S. 947 (1971) rev'g 441

S.W.2d 1°1 (‘Tex Cx App. 1970) eoeccceeeceseserserere® 1°

Reic Ve Covert, 354 U.S. 1 (1957) ccceccesesesesesee® 22

Ross v. Moffitt, 42 U.S.L.W. 4940 (June 17, 1974) .++- 20

Speck Vv. Illinois, 403 U.S. 946 rev'g 41 111.2d

L177. 242 N.E.2d 203 (1968) .cccccsccccessssesereere” 19

State v. Albert Carey, _ B.C o__e S.E.2d __, North

Carolina Supreme Court No. 19 (Mecklenburg)

(July Re ROUAL ccc cueeGbateeseenseesesesteereee e 13

State v. Anthony Carey. -. ae oS torth

Carolina Supreme Court No. 16 (Mecklenburg)

(July Bs SOGE) 65.606. 04664 CH 608 CHERSEDESESREPOD IME 13

State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974).. 10

State v. Davis, Lenoir County Superior Ct.. No. 74-

Cr-ll0e2, 74 -Cr-1103 (June 1G, 1974) eoceoeereeereereeee 13

State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974)... 10

State v. Foddrell, Caswell County Superior Ct.,

No. 73-Cr-1439 (June te 1974) ccccceseeseeseeeeeeee® 13

| State v. Foster, Lenoir County Superior Ct.,

! No. 74-Cr-1L24u, 74-Cr-1249 (June lo, 1974) omeereeeere 13

iii

State v. Gordon, Mecklenbu

rg County Superior Ct.,

No. 73-Cr-b6107, 73-Cr-56188 (M iy 290 1974) oeveeeee

State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974).

State v. Fernando Hunt, Vance County Superior Ct.,

No. 74-Cr-550, 74-Cr-551, 74-Cr-552 (June 14, 1974).

State v. Rozell Hunt, Anson County Superior Ct.,

No. 74-Cr-1538 (June 13,

BOVE) 66066600 6eeeveneéeeus

State v. Jarrettec, 284 N.C. 625, 202 S.E.2da 721

(L974) cc ccc weere renee eeneeeereesssessesesseseeees

State v. Lowery, Alamance County Superior Ct.,

No. 73-Cr-8718 (June 15,

EOTED cucevecseceseceeeseees

State v. Noell, 284 N.C. 670, 202 S.R.2a 750 (1974)..

State v. Pinkney, Crim. No. 2490 (Cir.Ct.of Palm

Beach, Fla. (July 9, L971) ccccccccccnsvceccccececes

State v. Robbins, Guilford County Superior Ct.,

No. 74-Cr-) S074, 74-Cr-19771 (May 3h. 1974) eoreeeeee

State v. Simmons, Nash County Superior Ct.,

No. 74-Cr-194 (June 13,

ROPES 00 ees 0 thee been eeeeesue

State v. Stcegmann, Cumberland County Superior Ct.,

No. 73-Cr-30527, 73-Cr-3061L5 (May 16, 1974) eseeveee

State v. Strickland, Onslow County Superior Ct.,

No. 74-Cr-3671, 74-Cr-3672, 74-Cr-10568

(June 29, LD74) cece weer weer eres erenereeseseeeeeeseee

State v. Thompson, Rutherford County Superior Ct.,

No. 74-Cr-1222 (June l,

State v. Waddell, 282 N.C.

ROUTE) 660 66HR606Ss OBOE OEE OES

431, 194 S.E.2d 19 (1973).

Stein v. New York, 346 U.S. 156 (1953) ccoc-covcscecece

Strong v. State, 47 Ala. App. 238, 252 So.2da 659

(1971) .cccrcnncccccvcccceeccesesesesesssessessseees

United States ex rel. Weston v. Sigler, 308 F.2d

946 (CA5 > rrr Te TTT eT TT TUTTLE

Whan v. Texas, 403 U.S. 946 (1971) rev'g 438 S.W.2d

9g (Tex .Cr .App.19G9) .ccccccccccccscsessecssscseseecseces

Wigglesworth v. Ohio, 403 U.S. 947 (1971) rev'g

18 Ohio St.2d 171, 248 N.E.2d GO7 (1969)... cceeees

Paqe

2,3,10,13

Pade

Willdain Vv. Coordi ’ 349 Uense 375 (1955) eccvctdeeeses 2?

Witherspoon v. Tllineis, 391 U.S. 510 (1968) .cccceess 2,11,14,

15,16,17,18,19, 20,

21,22

Statutes:

28 U.S.C. GL 257 (3) ccc wc wcccccecereeeeseeeseeseesesees 1

North Carolina Ceneral Statutes:

614-17 as ainended by £.B. 157, Chap. 1201,

1973 Sess. Laws (2nd Sess. 1974) ceccesncceeseeeseees 3

§14-17 erseeereeeeeeeeresreeeeeeeeerereeeeeeereeeeere eer e & 2

§15-187 eevee eeerereeeesreeeereeeeeeeeerereereer ree eee eee & 3

§15-1830 eeceereerereesreoereeeerereeereeereeeereeeeeeee ree eee 3

IN Til:

UPd, COURT OF THE UNITED STATES

October Term, 1973

No.

BILLY HONLYCUTT,

Petitioner,

-V. —

STATC OF NORTH CAROLINA,

Responddnt.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREMY COURT OF NORTH CAROLINA

Petition prays that a writ of certiorari issue to review

the judgment of the Supreme Court, of North Carolina entered

on April 10, i974.

CITATIONS TO OPINIONS BLLOW

The opinion of the Supreme Court of North Carolina is

reported at 285 N.C. 174, 203 S.E.2d 844 (1974), and is set

out in Appendix A hereto, pp. la-6a, infra. 2

JURISDICTION

The judgment of the Supreme Court of the State of North

Carolina was entered on April 10, 1974, and is set out in

Appendix A hereto. Jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3), petitioner having asserted below

and asserting here deprivation of rights ail by the

Constitution of the United States.

QUESTIONS PRESENTED |

1. Whether the imposition and carrying out of the

sentence of death for the crime of murder under the law of

North Carolina violates the Eighth or Fourteenth Amendment

to the Constitution of the United States?

2. Whether the Sixth or Pourteenth Amendment to the -

Constitution of the United States requires that a transcript

be mace of the voir dire examination of prospective trial

—_— —- oe

jurors in a capital case, so as to assure a record of sufficient

completeness to preserve an indigent defendant's rights against

unconstitutional methods of jury selection such as those con-

demned by Witherspoon v. Flbinois, 391 U.S. 510 (1968)?

CONSTITUTIONAL AND STATUTONY

PROVISIONS INVOLVLD

eee +s ee

1. This case involves the Sixth, Eighth, and Fourteenth

Amendments to the Constitution of the United States.

—_——— o- «<a -

2. This case also involves the following provisions of

the General Statutes of North Carolina: |

§ 14-17. Murder inthe first and seconi

@efined; punishment.- A murder which shall be ;

perpetrated by means of poison, lying in wait,

imprisonment, starving torture, or by any other

kind of willful, deliberate and premeditated

killing, or which shall be commited in the per-

petration or attempt to perpetrate any arson,

rape, robbery, burglary or other felony, 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 fer life in the State's prison,

and the court shall so instruct the jury. All '

other kinds of murder shall be deemed murder in

the secon? degree, and shall be punished with

imprisonment of net less than two nor more than

thirty years in the State's prison. )/

lf As construed in State v. Waddell, 282 N.C. 431, 194 S.F.?

39 (1973).

—— — <a

§ 15-187. Death by atminictration_of letha!

gas.- Death by electrocution under sentence o:

law is hereby abolished .nd death by the admi:n-

istration of lethal gas sthstituted therefor.

§ 15-188. Minncr an? 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

continucd until such convict or felon is dead; and

when any person, convict or felon shall be sentenced

by any court of the State having competent juris-

diction to be so executed, such punishment shall

only be inflicted within a permanent death chanmbcr

which the superintendent of the State penitentiary

is hereby authorized and directed to provide within

the wal’s of the North Carolina penitentiary at

Raleigh, North Carolina. The superintendent of the

State penitentiary shall also cause to be proviced,

in conformity with this article and approved by the

Governer and Council of State, the necessary

appliances for the infliction of the punishment of

@Geath in accordance with the requirements of this

article.

STATIMIN

This i

a petition for a writ of certiorari to review the

judgment of the Supreme Court of North Carolina, entered on

April 10, 1974, affirming petitioner's conviction and death

sentence. Petitioner, Billy Honeycutt, an indigent white man,

was sentenced to die on October 3, 1973, in the Duplin County

Superior Court upon conviction for the first degree murder of

his wife, Mrs. Brenda Honeycutt.

2/ Petitioner's sentence of dcath was imposed under N.C.Cen.

Stat. 514-17, as construc’ by the Supreme Court of North Carcl

in State v. Wetdct!, 262 B.C. 431, 194 S$.E.28 19 (1973). The

North Carolina iegislature enacted a statute, &.B. 157, Chap.

1201, 1973 Sess, (2nd Sess. 1974), om April &, 1974 which imposes

the death penalty for first degree murder, but this statute

provides that it is applicable to offenses committed after

its ratification.

| Pefitioner was a salaried employee ona chicken far» and

lived in a trailer on the farm with his wife and two dav siter’.-

His employer, J. D. Sheppard, testified that petitioner and

his wife had separated about two OF three weeks before the

murder, that he had occesionally heard the Honeyeutts arguing.

| wd that petitioner “was a dependable worker but did drink once

in a while whenever he becare depressed.” R. 7. On May 25,

1973, petitioner. who had been drinking, told his employer

that his wife had locked him out of the trailer and declared,

“I'm going to go over there and tear the door off and kill the

damn bitch.” R. 6G. Petitioner called the cheriff's office. how-

=o -~----

ever, and a deputy came. Petitioner asked him to open the

——-. - oo

trailer door clse “something -+-+-*** * * was going to

--— -— oor

—_

happen" R. 10 (omission in original), but the deputy refused

r and gave petitioner a ride away from the chicken farm to his

i mother's house, where petitioner was then living.

| A friend of petitioner's, Durwood Rousc,. testified that

about a week before the death of Mrs. Honeycutt, petitioncr

had declared, “I love ny wife good enough to kill her,” R. 6,

although this witness testified that petitioner said this ina

“mad

“joking way” and that he did not believe petitioner was

at his wife when he said it.” Ibid. *%nother friend of peti-

tioner's, Thomas Rouse, testified that about two weeks pricr

to Mrs. Honeycutt’s death, petitioner, who had been @rinkinc

a great deal, told him he was having “family problems." R. 9,

and that he was going to kill his wife, his employer. and

ee ~<a oo oe w+ ee

“Bobby.” Petitioner repeated this threat to Thomas Rou, on

the night of June 5, st. wit declared that he “thought his

wife was secing a man that worked in the turkey house" and that

he “wanted to go back to his wife but she would not take him :

back." R. 9.

Late on the evening of June 5, 1973, petitioner prevailed

upon a friend,RichaxlRouse, to drive him to his trailer, stat-

ing that he “wanted to go back to" his wife, that he loved his

family, and that “nothing didn't take the place of family.”

3/ The record does not reveal exactly who "Bobby" is, although

the trial transcript is significantly more informative than the

Statement of Case on Appeal. (The Court is familiar with the

North Carolina practice of “narrating"the transcript on appeal.

See Pumper _v. Nerth Carolina, 391 U.S. 543, 546, n. 8 (196%).)

The Case on Appcsl attributes to Thomas Rouse the statement

that “Billy Noneycutt told Mr. [Thomas] Rouse he was going

to kill his wife, Bobby and Mr. Sheppard.” R. 9. The trial

transcript andicates that the witness in fact testified that

“[petitioner] said that he wanted to come back to her. Said he

was going to kill her, he was going to kill Bobby thal wor’:

down there and Mr. Sheppard.” Transcript, State v. Romovcntt

Duplin County Superior Court No, 73-Cr-3822 (Oct. 2, 1973) at

51. The trial transcript also reveals that Thomas Rous¢

testified that petitioner “thought she was running out with

some men up there at the egg house" and that “he thought she

was going with that Bobby that works in the turkey hous. there."

Id. at 53, 53-54.

4/ Thomas Rouse testified that he did not think petitioner

was serious when he made his statements about Willing people.

Transcript, note 3, supra, at 55

5/ Transcript, note 3, supra, at 59- Cf. R. 10.

—

eee ee eee ee ee oe

i ee oe me =

ee ee 0 ee ee eo eee

-_—_— <---—-

ee ee ee ee

—— ee

Richard Rouse warned petitioner that he did not want to caus

any trouble by bringing petitioner to his wife, and petitioner

assured him there would be no trouble. This witness saw

petitioner enter the trailer, and a few minutes later petitioner

signalled him t&Wat he could return home, He heard no signs of

violence before he left.

Petitioner's daughter, Billie Jean Noneycutt, whose ninth

birthday occurred on June 6, 1973, testified that she was

asleep on the night of June 5-6, and that sometime during the

night her father entered and awakened her by calling her

mother “ugly names," R. 13, and by declaring: "If I can't have

you, no man can." Ibid. She saw her father lock the front door

and take the door knob off the back door. She testified that

her parents continued to argue and that her father took a

“kmtcher knife," id., from a drawer, © oo euiad it in his

pants, and then stabbed her mother in the back with it. Her

mother said, "Billie Jean, go get help,” id., and Billie

Jean ran to J.D. Sheppard's house.

6/ On direct examination, this witness declared: “I heard

[petitioner] open up the drawer and he got the fork out and

then he got the butcher knife out. He put the butcher knife

in his pants, sort of like that... . I didn't see him get the

butcher knife, gut I know he got it, I know where he put it."

Transcript.n.3,supra,at 102.0n cross examination, the witness

stated that che did not see petitioner pick up the knife

("I thought he had the knife because, I just thought he had

the knife," id. at 113), but that she did see him pull it out

of his pants. Ibid. a

— ee

J.D. Sheppard testified that shortly after midnight on

June G6, 1973, he was aunhoned by Billie Jean Honeyeutt and

that a few minutes later, petitioner, who egpeared sober,

came to the door and told him “that he had stabbed his wife

several times and that he thought she was dead." R. 7. potitional

then asked that Sheppard take Mrs. Honeycutt to the hospital

at a ae Aeputy sheriff arrived shortly and placed peti-

tioner under arrest. This deputy testified that petitioner

inquired about his wife's condition and upon being told that

she was dead, replied, “Ha, I'm dann glad of ~~. ll. This

officer asked petitioner where the knife was, and petitioner

replicd that it was behind the television set, where the police

subsequently discovered it.

Y/ Mrs. J. D. Sheppard confirmed this account, R. 7-8, adding

that she heard petitioner say, "Where is that little white

headed bitch?", referring to his daughter, when he came to the

Shepp.rd house. R. 8.

B/ Petitioner testified in his own defense that he had "family

problems," R. 15, with his wife “because of the fact that he

was not making enough money and wanted a better job." Jbid.

He statcd that he went to the trailer on the carly morning of

June 6 “in a desp:rate attempt to talk with Brenda Honeycutt

and try to make her see how much he loved her and wanted to

make her a good husband." Ibid.

"She told him that she did not ever intend

to live with him again and that she was going

to take his kids away and make sure that he

did not cee them again. His wife came out of the

kitchen with a knife in her hands. He tried to

take it away from her and a struggle followed.

His child started screaming at him, He did not

remember stabbing his wife. He only remembered

seeing her on the floor." R. 15-16. |

He admitted that he drank alcoholic beverages “on frequent

occasions.” R. 16.

Petitioner was determined to be indigent and was de! nded

by court-appointed counsel at his trial. During the selection

of the jury, the veniremen were examined on voir dire concern=

ing their conscientious and religious scruples against the

death penalty. This examination was not recorded, although

the questions asked on voir dire were stipulated in the

Statement of Case on Appeal (see note 3, supra) in the Supreme

Court of North Carolina. The veniremen's answers to there

9/ “Tt is stipulated and agreed by counsel for

the defendant and the solicitor for the State,

that the following questions are true and

accurate questions asked by the State in the

selection of the jury that tried Billy Honeycutt.

1. Do you have any moral or religious seruples

about capital punishment?

2. On account of these moral or religious

scruples, would it be impossible, under any

circumstances, and in any event, for you to

return a verdict of guilty as charged even though

the State proves the defendant guilty beyond a

reasonable @oubt?

3. Would you automatically vote against the

imposition of capital punishment without regard

to any evidence that might develop at the trial?

4. You would not vote in favor of the death

penalty under any circumstances, no matter how

aggravated the case was and no matter what the

facts were?

It is further stipulated and agreed that no

objections were interposed at the time the above

questions were asked the jury during the jury

selection of this case. It is further stipulated

and agreed that the defendant did not exheust his

peremptory challenges to the jury in the jury

selection in this case."

R. 2-3.

vuestions were not stipulated nor was it stipulated whet! or

} i

any venircmen were excluded for cause on the basis of thir

answers, although the briefs of both parties in the Supreme

Court of North Carolina assumed that such exclusions had

occurred.

At the conclusion of the evidence, the court instructed

the jury thet it could return @ verdict of not guilty, guilty

of involuntary manslaughter, guilty of second degree murder, or

guilty of first degree murder. The jury found petitioner

guilty of first degree murder, and the court thereupon

sentenced him to die.

On April 19, 1974, the Suprane Court of North Carolina

affirmed petitioner's conviction ana sentence of death, with

three Justices dissepting in regard to the death penalty. On

April 23, i a Chief Justice William A. Bobbitt of the Nos th

Carolina Supreme Court stayed execution of the judgment in order

to allow a petition for certiorari to be filed in this Court.

HOW TUE FEDERAL OULSTIONS WHERE RAISED

AND DECIDED BULOW

1. Petitioner's Grouping of Exceptions and Assignments of

Error (R. 44-45) in the Record on Appeal assigned as error

the death sentence in this case because “the death sankey

constitutes cruel and unusual punishment which is prohibited

by the Eighth Amendment of the Constitution of the United States

of America made incumbent by the States by application of the

due process clause of the Fourteenth Amendment of the United

States Constitution.” (Assigninent of Error No. III, R. 45)-

The Supreme Court of North Carolina rejected this contention

on the merits, citing its decisions in State Vv. Waddell, 282

N.C. 431, 194 S.E.2c 19 (1973); State Vv. Jarrette, 284 N.C. 625,

202 S.E.24 721 (1974); State v. Nocll, 284 N.C. 670, 202 S.E.2¢

ore me

—_—=

750 (1974); State v. Dillard, 265 N.C. 72, 203 S.E.2d 6 (1974):

State v. Crosder, 285 N.C. 42. 203 S.E.2d 38 (1974); State v-

10/

Henderson, 205 N.C. 1, 203 S.E.2d 10 (1974). 203 S.E.2a at

10/ A dissenting opinion stated: "“BeBPITT, C.J., and HIGCINS

3JJ., Gissent as to death sentence and vote to rerand

ton of a sentence of life imprisonment for the reasons

and SHAR?,

for imposit

stated in the dissenting opinion of Chief Justice Bobbitt 2n

State v. Jarrcttc N.C. 202 S.F.2d 721 (1974) ." 203 S.E.2d at

‘

849 (App. A at Ga).

e 10 -

2. Petitioner assigned as error in the Record on Appeal “the

state's challenge for cause of jurers who had conscientious

objections to capital punishment and who stated that thir

objection to capital punishment would not allow them to

return a guilty verdict in this case." (Assignment of Error

No. I, R. 45). Petitioner specifically excepted to the

stipulated questions asked on voir dire concerning conscientiour

and religious scruples against capital punishment. R. 3. The

Supreme Court of North Carolina noted that “[t)his record

does not disclose the answers given by any juror" to the

questions concerning conscionkigne and religious scruples agaimt

mpital punishment and that it does not “reveal that any juror

was excuscd for cause because of his opposition to capital

punishment." 203 S.E.2d at 647 (App. A at 4a). The Court

thereupon found that the record showed no error under

Witherspoon v. Tllinois, 391 U.S. 510 (1968). Ibid.

—— ee ee me

e ti «

| =

i REASONS _FOR GRANTING THE WRIT

} re

|! I. Tin COURT SHOULD GPANT CERTIORARI TO

i! CONSIDER WHITHER THE IMPOSTTION AND

| CARRYING OUT OF THL SENTENCE OF DEATH |

ts FOR TH CRIME OF MURDER UNDER THE LAW

, {| OF NORTH CAROLINA VIOLATES THE EIGHTH

ir OR FOURTOENTH AMENDMENT TO Tif CONSTI-

TUTION OF THE UNITED STATES.

" In order to avoid burdening the Court with lengthy and

repetitious matter, petitioner adopts the "Reasons for Grant-

ing the Writ" section of the Petition for Certiorari to the

| Supreme Court of North Carolina, Dillard vy. North Carolina,

No. 73-6875 (filed June ll, 1974), at pp. 11-51, and each

H of the issues set forth there:

| (A) Whether the decision of the lorth Carolina

Supreme Court reinstating the death penalty

—* j

| in that State following Furman: Georcia,

i 408 U.S. 228 (1972), is an impermissible

evasion of the Furman holding;

(B) Whether such a reinstatement of the death

penalty by judicial decision violates the

Eighth and Fourteenth Amendment commands

of lawfulness in criminal punishments;

sentencing discretion in North Carolina's

administration of the death penalty

|! following Furman violates the constitutional

i rule of that case;

(Dp) Whether the death penalty is so inconsistent

with contemporary standards of decency as to -

violate the Eighth and Fourteenth Amendments.

~— > 2

Since the Dillurd certiorari petition was filed on June

ll, 1974, 18 additional persons have been sentenced to dic

in this country, making a national total of 121 defendants

presently condcmned to death as a result of a sentence imposed

subsequent to the date of the Furmin decision. In North

Carolina, 12 additional persons have been sentenced to dic

under the procedures approved in State v. Wadtell, 282 N.C.

431, 194 S.£.2d 19 (1973), making a total of 41 persons now

under sentence of death in North Carolina.

ll/ The following death sentences should be added to those

listed in footnote 28, pp. 29-31, of the Dillard petitions:

State v. Sterrann, Cumberland County Superior Ct., No. 73-

Cr-30527, 73-Cr-30615 (May 16, 1974); State v. Gordgg,

Mecklenburg County Superior Ct., No. 73-Cr-56187, 73- Cr-SG)8e

(May 29, 1974) ;Etete v. -, Guilford County Superior Ct.,

No. 74-Cr-19574, 74-Cr-19771 ‘(Hay 31, 1974): State v. Thorpscn,

Rutherford County Superior Ct., No. 74-Cr- 1222 (June L, 1974)3

State v. Folcre!l, Caswell County Superior Ct., No. 73-Cr-143%

(June 7, 1974); State v. Rovell Mmt, Anson County Superior Ct.,

No. 74-Cr-1538 (June Pe 1974); ‘St ate V, | Lo. vOry » Alamance

County Superior Ct., No. 73-Cr-8716 (June 13, 1974); State v.

Simmons, Nash County Superior Ct., Ne. 74-Cr-194 (June 13, 197-

State v. Fornindo Hunt, Vance County Superior Ct., No. 74-Cr-

55 0, 74-Cr-551, 74-Cr-552 (June 14, 1974); State v. Davis,

Lenoir County Superior Ct., No. 74-Cr-1102, 74-Cr-1103 (June

16, 1974); State v. Foster, Lenoir County Superior Ct., No. 74=

Cr-1248, 74-Cr-1249 (June 16, 1974); State v. Strickland,

Onslow County Superior Ct., No. 74-Cr-3671, 74-Cr-3672, 74-Cr-

10568 (June 29, 1974).

Robbiz ne

Since June 11, 1974, the Supreme Court of North Carolina has

vacated death sentences in State v. Anthony Carcy, _N.C.__.

oe F) Ty North Carolina Supreme Court No. 16 (Me :cklenbure)

Quly 1, 1974) and in State v. Albert Carey, _N.C.__. __S.E.2d

__» North Carolina Supreme Court No. 19 (Mecklenburg) (July -

1974) and has remanded these cases for new trials.

There is soces sce 5 a delay between imposition of a sentence cf

death and commitment of the condemned prisoner to Death kow in

Central Prison, Raleigh, North Carolina. This delay account

for the fact that come of the sentences listed supra were me-

posed before June 11, 1974, the date the Dillard petition was

filed.

-13-

Il. TRE COURT SHOULD GRANT CERTLORART TO

- CONSIDER WHETNER THE STSTH OR FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF ‘THY UNTYLD

STATES REQUIRNS THAT A TRANSCRIPT BE MADE

OF THE VOTE DIRE EXAMINATION OF PROSPECTIVE:

TRIAL JUROLS IN A CAPITAL CAsn, SO AS TO

ASSURE A RECORD OF SUFFICTENT COMPLIETINESS

YO PRESERVE AN INDIGENT DEFENDANT'S RIGHTS

AGAINST UNCONSTITUTIONAL METHODS OF JURY

SELECTION SUCII AS THOSE CONDEMNED BY

WITHERSPOON Ve ILLINOIS, 391 U.S. 510 (1968).

Petitioner was tricd in forma pauperis on a capital charge.

At his trial, no transcript was made of the voir dire examina-

tion of prospective jurors, although the jurors were interrogates

concerning their conscientious and religious seruples against

capital punishment. A stipulation was later entered as to the

12/

form of the questions asked cach veniremen, but the record

does not reveal the responses ef the prespective jurers to there

questions nor whether other questions were asked them on voir

dire. Petitioncr assigned as error in the Supreme Court of

North Carolina the trial court's allowance of “the State's

challenge for cause of jurors who had conscientious objections

to capital punishment and who stated that their objection to

capital punishment would not allow them to return a guilty

verdict in this case." R. 44-45. The record does not reveal

whether or how many veniremen were excluded for cause on that

ground ner the precise bases of their exclusion.

_—_ -

12/ See note 9, supr.

In Wither: poon v. Wlinois. 39] U.S. 510, 522 n.21, 515

no (1968), this Court ruled that a death sentence cannot

be carried out unless the record makers it “unmistakably clear"

and “unambiguous” that the selection of the jury meets the

minimum standards of Witherspoon. See also Bovlden v. HNolinane

394 U.S. 478, 482 (1969); Maxwell) v. Bishop, 398 U.S. 262, 265

— ~<

(1970); Mathis _v. New Jersey. and companion cases, 403 U.S.

946-918 (1971). The Court held that:

"If the voir dire testimony in a given case

indicates that veniremen were excluded on any

broader basis than {that countenanced by With«r-

spoon} . . - the death sentence cannot be carricd

out even if applicable statutory or case law

in the relevant jurisdiction would appear to

support only a narrower ground of exclusion.”

Witherspoon Ms Tilinois, supra. at 522 n.21. ‘The Court has

accordingly reversed death sentences, citing Withersporn, where

‘

no record of voir dire was made, Mathis v. Alabama, 403 U.S.

———

946 (1971), rev'? 283 Ala. 308, 216 So.2d 286 (1968), and

where the court reporter's voir dire notes had not been trans-

—_

eribed and made part of the appellate record. Funicello Vv.

New Jerecys 403 U.S. 948 (1971), rev'gq State v. Forcello.

—- -— —

52 .N.J. 263, 245 A.2d 181 (1968).

The question which this Court should now resolve is whether

any alternative to an actual transcript of yoir dire testinony

can provice an adequate record for the resolution of an in-

@igent capital defendant's claim that yeniremen were excluc

on a “broader basis” than that countenanced by Wither: pocn.

Petitioner: contends that the nature of a condemned defendant’

Witherspoon claim, depending as it docs on the responses of

each juror interrogate? and excluded on the voir dire, clearly

establishes “a colorable need for a complete transcript” and

that “the burden . « « fis therefore] on the State to show that

only a portion of the transcript or an ‘alternative .. .- *(will]

suffice.” Mayer_v. City of Chicrao, 404 U.S. 189, 195 (1971).

The necessity of an actual yoir dire transcript for

rerolving clairs that capital trial jurors were improperly

excluded becavee of their sentiments concerning the death

penalty has been recognized by a number of courts. [OGr C.Ges

arrison_v. Patterson, 405 F.2d 696 (CcA10 a

ex_ rel. Neston v. Sicler_, 308 F.2d 946, 947 (CAS 1962); State

Vv. Pinkney, Crim. No. 2490 (Cir.ct. of Palm Beach, Fla., July

9, 1971) ("Justice requires that the failure to properly record

the procecdings be weighted against the State of Florida, and

not against the indigent defendant.") Cf. Evans ve State, 430

S.W.2d 502, 505 (Tex. Ct. Crim.App. 1968). Subsequent to

Mathin v. Alabom:, supra, the Supreme Court of Alabama held

that in order to determine whether the requirements of Wither-

spoon were met, a transcript must be kept of the portion of the

voir dire proceedings pertaining to the qualification of

jurors concerning capital punishrents

"This Court is of the opinion that it is

implicit in the Witherspoon holding that a

—_—

13/ “The Federal District Court did not have an opportunity

to consider the jury voir dire necessary to determine the

Sixth Amcadment issue raised [the permissibility of exc) uding

for cauce jurors with conscientious and religious seruples

against the death penalty), nor docs the record or transcrip*

available to us contain the voir dire examination, It is

necessary to review such a transcript before the court can

2-< ‘hth. Sivth Amendment aucstion. We cannot the reiore

os hre

ful) and complete transcript adequate for

the purposes of appellate review must contain

the proceedings incident to the selection and

qualification of the jurors pertaining to

Capital punishment. Therefore, in order to

dctermine whether the requirements of Wither-

spoon are met, neither this Court nor the

trial courts shold give force to any statutory

authority, rule of court, or prior decision o!

this Court which would authorize the omission

from the transcript of that portion of the pro-

ceedings pertaining to the qualification of

jurors concerning capital punishment.®

14/

Edwards v. State, 267 Ala. 583, 253 So.2d 513, 520 (1971).

The practice of stipulating the question asked veniremen

on voir dire, as a basis for justifying exclusions for cause

on the ground of conscientious or religious scruples against

the death penalty, will not pass muster under Witherspoon

for a number of reasons. First, a summary of the gucstions

asked ignores crucial features of a Witherspoon claim:

13/ cont'd.

say that the test established by [Witherspoon v. Jilinois) hac

been applied nor can the district court determine whether the

principles of the Witherenoon decision were violated. We

therefore remand to the trial court . .. .* 405 F.2d at 695

(footnote omitted). .

14/ In Liddcl! _v. State, 287 Ala.299, 251 So.2d 601, 612

(1971), the Alaboma Supreme Court reemphasized its requirement

that “[t]he trial court should . « « make certain that the

court reporter takes full notes from which a transcription

can be made of the examination of the jurors relative to

qualifying them.” See also Beecher v. States 288 Ala. 1, 256

60.24 154, 165-166 (1971). rev'd on othr grounds. 4068 U.S.

234 (1972). Streng ve. State, 47 Ala. App. 238, 252 So.2d 659

(1971). Pitxington vy. State, 46 Ala. App. 716, 24% So.?d 755,

cert. denis i, 287 Ala. 73% 248 So.2d 757 (1971).

S\ «=

e 47 «

—

ee eae

"{tphe critic: question{. « «)is not

- how the phrases enployed in this area

have been construed by courts and commen=

tators. What matters is how they might

be understood - or misunderstood - by

prospective jurers. Any ‘layman . « -«

(might) say he has scruples if he is

somewhat unhappy about death sentences

. e « « (Thus) a gencral question[. - -]

is far from the inauiry which separates

those who would never vote for the ultimate

penalty from those who would reserve it for

the direst cases.*"

Witherspoon v. Illinois, supra, at 515 n.9. The practice

followed here ignores the necessarily factual underpinnings

of a Witherspoon claim. An abstract summary of questions

asked docs not reveal the views of an individual juror with

the specificity necessary to make it “unmistakably clear,”

id. at 522 n.21, that he was properly excluded for cause,

because such a summary does not convey the nuances and un-

certainties which well might qualify an affirmative answer.

It is not even clear whether any veniremen excluded for cause

gave affirmative answers to all of the four questions asked.

15/ The absence of veniremen's answers from this record is

exacerbated by the misleading nature of some of the stipulated

questions. unless these questions are qualified py further

examination. For example, each venireman was asked whether it

would be impossible for him to return a verdict of guilty cven

though “the State proves the defendant guilty beyond a reasonable

doubt?” Question 2, R. 2-3. In Witherspoon, the Court clearly

stated that “a prospective juror cannot be expected to say in

advance of trial whether he would in fact vote for the extreme

penalty in the case before him.” 391 U.S. at 522 n.21l. On this

record, it is simply impossible to tell how veniremen understoc:

the import of Question 2. Furthermore, the stipulation indicate

that petitioner did not object tothe tour questions when they

were asked and that petitioner had peremptory challenves re-

maining at the end of jury selection. Neither of these facts

bars the raising of Witherspoon claims on appeal, however, sinc

this Court has reversed death sentences where a defendant has

not objected to exclusions, has not inquired further concerning

the attitudes of excluded veniremen, and has not expressed

dissatisfaction by exhausting his own peremptories. See, C+Gee

This Court has vacated death sentences for Witherrspoen crror,

despite the finding of a state appellate court that the

“atmosphere” of voir dire was consistent with Witherspocn

standards, Speck v. Illinois, 403 U.S. 946, rev'g 41 111.2d 177,

242 N..2d 208 (1968), that a trial judge had conscientiously

tried to follow Witherspoon, Pructt v. Ohio, 403 U.S. 946 (1971),

rev'g 18 Ohio St.2d 167, 248 N.E.2d 605 (1969), and that the

“spirit” of Witherspoon was not violated, Aiken v. Washington,

403 U.S. 946, rev'gq 75 Wash. 421, 452 P.2d 232 (1969).

Second, the stipulation of questions here does not clearly

indicate whether veniremen who may have been excluded for cause

from the panel were properly instructed as to their duty to

subordinate their personal views to the commands of the la

as explained by the court. As the Court declared in Rouldon |

Mv. Molicin, 394 U.S. 478, 483-484 (1969): “[Ij}t is entirely

possible that a person who has ‘a fixed opinion against' or

who docs not ‘believe in' capital punishment might nevertheless

be perfectly able as a juror to abide by existing law -- to

follow conscientiously 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

15/ cont'd.

Pructt v. Ohio, 403 U.S. 946 (1971), rev’q 18 Ohio St. 2d 167,

248 N.E.2d 605 (1969); Wiaglerworth v. Ohio, 403 U.S. 947 (1971),

rev'q 18 Olio St.2d 171, 245 .%.2d G07 (1969); Harris v._

Texas, 403 U.S. 947 (1971), rev'q 457 S.W.2d 903 (Tex.Cr.

App. 1964); Quintana v. Texes, 403 U.S. 947 (1971) rev'q

441 S.W.%d 191 (Tex.Cr.App. 1970); Whan_v. Texas, 403 U.S.

946 (1971), rev'g 4386 S.W.2d 9 (Tex.Cr.App. 1969).

e 19 -

——

—— —

403 U.S. 946 (1971), rev'g State v. Nudson, 253 La, 992, 22)

So0.2d 484 (1969).

Fourth, the requirement that the yoir dire of prospective

jurors be recorded and transeribed imposes no significant

burden on the State, since voir dire in North Carolina is

frequently recorded and transcribed with the remainder of the

trial testinony. Capical defendants are often indigent and

thus unable to hire a reporter to record and transcribe the

voir dire hearing. Purthermore, six years of experience with

Withersncon has surely afforded the States sufficient experience

with Witherspoon issucs to give notice of the importance of

see eee

a complete transcript.

Fifth, the procedure followed here violates the presumplic..

that, where an appeal is provided, a transcript should be

afforded to an indigent appellant as a matter of due proccess

and equal protection unless for some reason it is impossibic

to do so. Griffin_v. Jilinois, 351 U.S. 12 (1956). This Court

has recognized that in many instances the practice of relying

on the memorics of participants at a trial may not provide

a record of sufficient completeness for review purposes

where beiter evidence is available. See,e.g., Draper Vv.

Wachington, 372 U.S. 487 (1963); In Long vy, Nistrict Covrt of

preference for transcripts as opposed to other accounts of

trial procecdings:

wee ee eee

"The State suggests that there may be

alternative ways of preparing, for purposes

of appeal, an account of relevant proceedings

at the trial level . .. . In the present case

a transcript is available ... . We need not

consider a possible situation where a transcript

cannot reasonably be made available ... ."

Denial of an adequate transcript in the circwustances of this

case is itself a denial of due process of law and the equal

protection of the laws. See Boykin v. Alabari, 395 U.S. 238,

242-243 (1969); Carnilcy v. Cochran, 369 U.S. 506, 516 (1°52).

Cf. Brookhart_v. Janis, 384 U.S. 1 (1966).

Finally, since by definition the Witherspoon issue

involves a matter of life and death, any doubts as to the

legitimacy and sufficiency of a practice that affects the

ability of a condemned defendant to adequately raise an issue

which might cave his life must be resolved in favor of the

condenned deindant. "What is at stake for an accused facing

death . . . demands the utmo*t solicitude of which courts

are capable." Boykin v. Alabama, 395 U.S. 238, 243-244 (1969).

Such a demand is consistent with the frequently expressed

principle that courts treat cases involving the death penalty

with extraordinary care to insure that all proper procedures

have been followed and that no error has occured in the trial.

Furman v. Georcia, 408 U.S. 238, 287 n.34 (1972) (Brennan J.

concurring); Williams v. Georgia, 349 U.S. 375, 391 (1955);

———— ee ee

Stein v. Now York, 346 U.S. 156, 196 (1953); Reid v. Covert,

354 U.S. 1, 77 (1957) (Marlan J. concurring) ;_Andres_v. United

States, 333 U.S. 740, 752 (1948). “The magnitude of a decision

eee eee

to take a hunan life is probably unparalleled in the human

expericnce of a member

434 F.2d 29, 32 (CAS 1971), cort. denied 402 U.S. 906 (1971);

a civilized secicty.

therefore, “doubts concerning the ability of a venireman to

subor linate his persenal views to his oath as juror to obcy

the law of the state should be resolved against exclusion.

Id. at 31. Placing the burden ef providing and preserving a

record of voir dire

by the nature of the

life itself - and by the respective positions of the parties.

testimony on the State is clear ly@warrant: q

right at stake - which is no less than

CONCLUSION

Marion v. Me

Petitioner prays that the petition for a writ of certiorari

be granted.

BPRCT! rhe soso,

RUS SEI LL. eR LANIER, IR.

P. O. Box 87

Kenansville, North Carolina 28349

ADAM STIIN

Chambers, Stein, Ferguson & Lanning

157 mint’ Rosemary Street

Chapel Hill, North Carolina 27514

JACK GRIUENBERG

JAMES M. NABRIT, III

DAVID EVAN KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

JACK HIMMELSTEIN

435 West 116 Street

New York, New York 10027

ATTOIRILYS FOR PETITIONER

vel

“tA)

tall !

mood

wea

‘

LP a : } '

tte ’

Rats

of t!

tint

out’

city

- ~* »*~--F oV-7-- ee * —-* ~ -~-* - - _*-.- - _-*

APPENDIx A

‘ an) jie) ; spre i! A eo 2 ee

' eget. 1") hy 0 ' q mi fat 1!

4 :

ton ’ ' % 4 ‘

hav! ™ a ‘ ae ‘

' ' ‘ ' 2 : 1 F ' hoy = :

‘ ra y bt a ,

! . ton mot apoverye fact v1 ! of ‘

} ’ ' ! * ‘ 1 ; rt, ’

‘ t ' i ‘ Ay ‘ — :

. e ei ‘1 ! We to \ ta) y) e § got '

jadacnte tht at vice will net '

quate ] ! st ~ serd oof — .

of t! C.F ent | ttet Yue 1] U'eadet

{ t . e?

. n eeithe 1 i mer t

1 ® ‘ ,

i i!

‘ } ' i » att " +! =i ‘ lt

! ‘

i } Yee, ee? M4) ( i \ V2: }

' ! . "ea §

' ' Te ‘

; ts By i 4 cone! '

‘ a ’ -* y ci’

, '

~] t . fe? weve 1‘ cr }

othe ; , ( ’ ‘ ost

the ~- ’ 7 t Orie

‘ ity of tl ‘

i i

‘ 1 ’ i \v' t! _ oat J 2 ' “

; '% ‘ . 1 i! } ci us » « . i ‘

' ‘ ‘ a .: 4 ,

' ‘ ;

' " ‘ { toy P a? ‘ $9?

l % en 4 ‘ '

. ‘ P , yee ‘ ‘ , ws «t P ’ '

; } ‘

vias

’ ‘e

fe’

{ ‘ ¢ ‘,

, vs

= ’ GVA ef tore

! ’ ‘.

Biithy bee s vieliad.

No. i

, : hey ‘ ‘

’

, Ay : 3 vie *

° ‘ F

‘

" }) fe 1 ‘ ‘

‘ ° ‘

‘ ' ' Ss .

‘ ' : ‘ | ,

—_-

: BTATH vy HONNVeUTT NC. tS

: five pee 1 ! ' wr fala yt a lors ft ’ (

' , } ~~ e ' . . , , , ;

‘ we eta , ! ' ‘ i "

;

' wy rt ; tt ts t Cae | ’ ‘ t ! '

torte y ' i ! wn mepeart bone tate i

‘ SC. A.Coust. Aun. ¢

. Aftu !

Ji, fs i t to ‘, (Miest 'o\ her def

He stalled wife was guitiy of fir

: moutder wos fer jrry

1. Crincinait Se ares) Q Crboieat tay ta {

i i ;

° ‘

hive : , atete ’ '

‘

o! ty of 1 ‘ ‘

2. 3

ili Const! as & 4 ' .

’ | aes | ‘ , $ }?

’ : !

pre }

eot ~

’ ah ; {

yiec at 9 ]

‘ et ’ , ‘ »* r oa :

° yt

a }

' ‘ ’ ef A ’ '

‘ ‘

' * 1 ' ’ 6

i & ‘ . ft: ' i ’ ;

| '

' + F P

' ‘ | i i

' i ‘

cut's ‘| i ‘

€. ders a

‘

, .

i 4 :

}! ;

} ' ' .

B. aris “Alls

} } ‘ '

ch ele :

1 ‘ Vi ne ‘

etary

6. Jue '

ee ee ee me ee ee ee nee re ee ee fete te ee ee

IG ONC 203 FOUTH NACTES

Prife {, vah grant

er as she welled deen te 1

cr. Ober wrnothos

ant get help.

wetted ber neath

Noof we tras

fen tlt her to

Vette Jean went fo tty

Sheps ad he nd ted them what hid

happened’. Ste farther tectified that her

mether bide pruner brofe,

ro ont

J. D. Sheppard ota frhot he was awak

erid hy Boalive Te it Dheete verte Saree Tere

after yiitncoht, swt after tater: wath her

he inevwedeancts ested tre Shorts Depart.

ment. Pater defestont core emte his

Sion re ib Wea 4 Rise eh onl a

eile s ral teen set ie of te tht

was @esd Bills Merrett «744 * to be

om ets

Decay Siceifl T 1 Ts cveer, of the

fe, he ie, PP '» Teg /TE's fi. | t %

OF 64 OS: G4 ee ts ee runt : Sis

hich bBo gecciwed at athett Peer a. fi on

Brant: Ponce. ts foutal les bavdy

fine of fn troiler

Me teed ad: Pe a hit

lying on ih

of Bont

protic, gid atv So hiss a fis gah

Siitiewlart ar othe! Hf feo wile wes

edad, aud woos ber tld that she was

deat. the ao featur g: *tt., Pec csr

ghd of

ha baat: Ges er a : ao, Wisi

@.-"% * Ba ' 1 .

on 1 bits of i Ob Stes y

eon ite teet of bee bate thier I :

feet amd tivo a a | , Qhrw ost the

wount. perced tas chest atal preced

Goverrc®: her sight Birg casing a he

Chit whith, te his tye, Bas tae pedal

mNe Cee of tics deal

These we

otis te-tininay to the effces

thet aiter bis » Carnity,

deleatast hed on at least hice Gecassans

told porto. that he was gous te hall bas

witic.

ceparations froc: be

At the clove of the ™t te’s evidence de

ferelont wioved for a directed sardrct, of

not purty. “be nrGtion Was Get J.

en eee Om ee rae

NOELVORTED, Td SERIES

testifvane in he own leh

aod has wife had be. 4

theee weels beder the

the ft heen tee tes te

get a hotter Duriny the mets of §

Juve 1773 awd the carly mieormine boone of

G June 1974, he had bean drunhine t

Liquor, Dh

separated fron hes femoly.

le ferent,

‘tated? that hi

fiatert Ser

ehiate

aloortt

of her death.

gels

was wotftied becuse 1 Wits

le wernt te the

tratler om the cotty merry hea of 6

June to tat te fas wife and te mele her

soe how wach he foved hes. Me wen eet

nrere : 9 wy Oe sgrivi’ 7 an tea « @

he Gob tat tent th dijon tit bee bh hans

Upon astivel, Dis wae tet tors

eae

Saale J

giet 73 nf te coer

& dsl vert Th

hie aren, and tat che wre pon: t

bis clin away t0 mit

would wot see Mots a teete,

ce sure i

Me firticr ¢

tifed thot Vienda Honcyeutt came ont of

the kachen with a insite on ber haw

Swith deco har a adtesp! tet *

he stray?

tire becuse frat deer, Die chat mot pen. '

stalicn hes wife, Wat he del sets cs

secitgs ber on the Moor,” Vie bet ret

picwtead te fet hi wire sighed te

tse gokertys faamet, Pee Statererts ihe te

mihi aeivate that be iwiemded te F530 bess

wails.

offer.d wa evideace ethers

Delon tout

than his ova tes titrate

the yt mets ta werdi-t of gous of

murder a: (he fet here Detc a

. 5 pS ;

‘ ; nity" r Senger

Atiy, teen Vreven sera by As t. tt

Ger. Veuoes UB. Weod gud Ase

Archic W. Anders, Ratiigsh, for the > ste.

Ruse 3. Lovier, Je,

Aefendint appcthint.

Kenatioville, fos

BRANCIL, Justue.

Defeutant by his first assignmecat of of

por contend, that the jury selects: pas.

in this ¢ <« deprived him of a truly ieyre-

sentative and impartial jury as ywarantoed

by the Sixth Amemtuent to the Uited

States Constitution.

ee ee my ee ee Str mer me ne mm . a

BTATE vo VONEVCUT?

Defemtant cect fer Sty aot? )

Micat of croton wath sowetal te peenate

micuts

Phe tecord cont only the f

Stiteriemt cot «rpyety,? yr caolect

UY SELLCTION

It is stipuletd ! cod by «

for the defendant amd the soheneor for

, P Our com cterat of this aeei

the. Seite. that the followaug: quest ; : ;

’ ersor tans therefore be hinted

are truce an! wate quettoons asted by

' a . fect of the wets te sirdrup ‘

the stats on ts mat of the yity th A

° concern thear yor ow cot

trict Vet VY '

; phicat,

1. De yor have ' ma. mn

4 ° ‘

ginws feraptes about capital pe sich [2] We fied mo ment ms

; o? ; d Contuniien thas o pures cannot?

wider chem tances hee

Z. On setoum of ti spel on teh Comvict e ii Capatal |

fricas seragels ‘ 14 at be anny 3 0 is now well estabtichod that 1

water any erronnet , and mm any cn » neor 4 be proper!

event, fer yor te retetn a verdit of for carioe Uf he imdecats he ee

guilty as charped even thawed thie Titseee turn e sere af gravity | Th

provis Te Eorencom ty beyoad a ty wont! leath, even 1!

%,° ’ ‘ . ‘

ben we proses te hiss bw the « ee i

'' Sst Ohne ¢

¥/ ' v decart ‘ H

3. Woull yer wytteeety J wie 7 oe

k ; .

ayant { th WH) thine P cCaiental poeta .. pilus of thy b: tps eh et elhts

: : ' , iva . S02 :

weed ' Wate onal ‘ . i ey rictns . ¥ y a .

thts hid Yon ot the tral? 770, 29 L.Ed 470, tea. |

- ‘ ‘ 5

£8, 9 $.Ca, i, 2) | 1 af

4. You sovtis yvuote im favor ef = Wasrinaten, 743 N.C. 175, 195 S

the « 1 }*" ¥ c } Strate v. A Oisn, oe? Ss | G42. }

Statice, Wer rw eal teil the Wt; State ¥ rozier, 2b) NA

cate was and 4 alien What tie facts SEA G2; State v Doss, 279

were ? 184 Sb ZIG; State ve Soudes

cyt 14 +4

, ‘ . . . 4?

a is favthow steyptictedd saan ceed that — .

naoh! ws ! “es ’ “th; , ts tite |. ; }? r} vt fusil ! cor

tes! sala re ashed t! ‘ 4 re oppo cd te

(usin Un pty ‘ north. « soe wid PA

és besther stipaitod tseseed Giat OU ropes tative ft He ore

defendant cid noi extant ins pore pto-: and ste etathietsy that a Jas

sy chalicnzes to the pry mm te py npmaty society has som

selection i tis case shout capital : Seoave-aet tai

EXCEPTION 2.1 ing a jury SChection process

“* . , * . ‘

such persens docs nott ta"

That the cout crref " th ,

’ mw COU cre wm wtowmy Oe * :

" . . tion of the cermimmunst fisi

al conscuntions object: to capital

h >t a ; ms * pe without ser ‘ is unl

ani ont and who stated tiat Unor ‘

i 4 : : : wen dhited toward convict et

objection to capital pure hoont would

not aliow then to return a j.ualty sverdiet The Uno 1 State Ssuiprene (

in this cae” dressed this sane qucstion im Wa

a sca 0 scent Gueantete ¢ O DELO! GO DOT eos

‘

it sl ! eee

' {2} Pha second a '

you answers piven ft )

it reves! that ary punt .

came because of hes ety

ae prunes Trense tit An apg thete

by the record as certitred

can judy be only os

secorn!. YN w 2d N

mimeet 8 42,

tal

roof

’

‘

put)

‘ on

—_--

— ee ees

ik Kc 203 SOUTH VASTLY

ve oi ss 1} rt Ae ee ere

conn * Pot: nly ’ sari it «. ‘ants ee

senontt ni free aes aie? at the

Commits, tert pees tue be f ! wm

favor of conviction, for the Sind of pore

who weld | posturled by the pre pect

of: ! . ’ tod deat’ the } }

of yur \ ‘ ts easel et

pre iit of ef i ‘ ,

accept tl tes wer af the facts atv

tolu a ty

(4) ‘Vhe mers of the wor Cire caso

Wisel tina Lan cuctorte of ¢ a*, ¢€

ther poreny voor fn cau is tes elene

Nate Exire OF | lio re

both the defecdant a: d the Stete shat

persons choccn to decuic the gukt or fmne

cence of the accused will roach taat desi

son solely wtoun the evita srosiced af

trial. Swain ve. Abdatia, 351 US, 2:2, B35

S.C¢. £24, 13 L.ibd.2d 78); Loszan +. Unite

PEVOrTEN, Mf SERIES

[%]} Po femtiot’s wey " sort

of thro ' eof ertonr cin er on

! a4 ‘ aft! te. epee ! "! ' y! thot ‘ gts

State and the dhfentont arejent df tea

trond bey are trpeertiat pry folevsiihe ¥,

Uoited States, 1° CLS App. § Jit

F.2d Ab, cert. dei 7 US, Hla I” See

NCR, SEMA

In the secent case of State vo Croy tor,

N.C, 203 SLO OS, we find the fol! i

Pertinent? statement:

bie ofeen io eae a taw tia To ‘

an wiliccod jury, tot entirely prop ne

a capital ¢ fer beth the State ore tte

defer ot te nuahe apprapriite

cuncer tt a prospective purot’s ovoral

er teat ! sf » begets, attitig s j

tudes tow ard ec. pital puoaedanent.”

1G} }! re, thy Gee ta eehed tow

spective qerats by the Solretionr were pea

gis hte qoutes beh badeoral ant State « j

Steps Tuer ery feo op ere ft ' hy

an napartiol sul representative jury

Shas ssa ‘ of crror is overrated.

(7) Although asstrted as error, de® oA

ae perm MH Gite . te hae Lite ti ‘ tris

Court erred in devyine his motes for a di

ected vere f met grat Vie a it

? .% tale tr ee g

et! ’ ¢" ee 9!

4, i ! ‘ of ds }

‘ ' ob the ; uses.

the { ¢ to carey the ¢ {G the

[6] bin ce fondant cor tes . that

the devth prvuits comstiintes csitel aud tn

usual opaaiclecent im wioldion of th

hoghth Amentinent te the United Stutes

This Court has declared thet pth ae

viction any porton who commits the erove

«?

of burglary in the first degree, first deytece

mundr, arson or cape after WB Janu ry

. , 1973 shall sufter the penalty of dooth,

Fd. 429; State v. Spence, 274 NC, $36, State v. Waddell, 2°2 N.C. 431, 1998 5.4.20

163 S.E2d 555 19. We fully considered the constitution

-— - o-—e i et oO A me Oe oneness cera eee

oP? atten’ tee

’ oof

pet etre

rita 7, ’

1 prs Te

i Mg pe dee

aw of Qriite ‘

‘, ve fold

+ te

® 1

tee 4

Croaitor,

fella z

; tes y S

BP, tah ot @

hi spetbeapets Me Mes

javier’ paper's monnl

' +.* — '

tal por hs

" ‘ ‘ ’ |

» Fe i Wie pea

r,t, ne j

ese oy te eure trill

Pe fErtative pry,

of error mw averiethad

yu ! errer, ce fein

mi he. | thet th

; ov, ote at

m4? ’ We thiel it

. ! ® .

¢% Pol Pe ats Pry

% : . :

. | % ‘ Or, a e4 ‘

’ ‘ |

. :

at? t a s th

; | ‘ cert ‘ i" ‘

eu? 4

. ,

m vielition of th

, : ‘ _

t te toc | Thi te Tlate

helsce ld thor 1 ; ce

, 4 ‘ ey

wad tae, tant

tape afar 8 } ' )

oA. Ah, Pt SB

tiemed the ces. tat i

-—_——--

STATE Ve SYUES °

oo '

ality of the Gooth ' ion Bile asf Of on 1 held that ef

Hag hth ant Vea ee tow , nf Sass ' | ,

Unoeted sco ‘ fertoot, om the exe ef eles beaut — oo

State vi Potiette, ae. 7 a is ’ ods eo "” '

721, awl hore neafin 1 ate dest ore 2 shee Ged

Wadd! See alua Stat 4 New Pl iN. ! \ lef] tt '

G7, APS tats v. Palbart, Ne aml te I ‘ D clad met oe

As SP Oa 6. State we Dbemdorscn, NO ment ’ aul thet ef

The het) m ! PIM, Savvette, Nell bee venge ave! taf I tatutory

Dillard, Meatless awh Crowder contre! } woh? take lareat! ty? i"

this assypamncut of errr rerder test resclts wu

tasrig t

Examination of each | racot of e¢

fur, cvety atpummom offored by ee I fu Alfie

Gefen int set a cael! peu fale «

tire record @: . & dofecutiot bas mt b. Crivtarts He eey

ceive? & fis tela, tae fiom pic} iil ;

error. W:. ; ‘ te Wt io rer

2 awl to o coumec) t t

Neo crn ond ; ; : _

BORWITT, CoP. end PGGINS ant deetedd bo cuistenta Dante

SdAG, Db. desevt as te Ceath sort . meet :

and woh to ix wl ier nt " ot a —— »'

sentence of fife ieopis * for the 1 The bploce ef '

SONS Shale P) the ch t of » of term bam contest of Hl

Chie! Jesticg Bobtin i ow. Jarrette, | Mate Stara su

a8t NM. G25, 4, A? SEZ 721, 747

1974). 3. Cebeedunt baw Costing)

OMficce’s asiang defer

beer «! t eeeri ers r

Ie. : ferelo it I ‘ Gxt

Ci7~ turtle “4

ot ad i I

to 1 " : ‘ hate a

SUAGE of Maas Ore na — = '

miosis. CLS. 3 )

Bee pa Ww Pe he

Sack Feéwire SVILLS for wth + ’ t4 tre

to. 5 ve!

April ie ras One wio is det: by pola

wreder a oe) roid , :

; ence of a iutosicant bas U

: Defeuloot was corn . Pin Sepories tuts ? and statutory eicht ‘

Court, Wayne Cownty, Morty Martin beef scene GS £0 W.2a)

@riving wha weer the idl of mmtor : ai ans

deatins dager The Coat of Ay . 20 §. Celminoe! Law C~-7%8

N.CLApp. Yer, SHS 114, fownd ne et Adi n of resul f Ye

sor aw) dh fen tint appeak ‘The Suprame test adronmtered tes tetas

arse.

Sore Beye were mee -cgmmenetys — — .

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.