Petition — Armstrong v. North Carolina
Supreme Court brief1976
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MICHAEL RODAK, dn.cuEnt
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
No. 75- 5076
ERNEST FRANZILLE ARMSTRONG,
Petitioner,
Yo
STATE OF NORTH CAROLINA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
JACK GREENBERG
JAMES M. NABRIT, III
PEGGY C. DAVIS
DAVID E. KENDALL
ERIC SCHNAPPER
10 Columbus Circle
New York, New York 10019
f ANTHONY G. AMSTERDAM
Stanford University Law School
if Stanford, California 94305
| ADAM STEIN
CHARLES L. BECTON
Chambers, Stein, Ferguson & Becton
157 East Rosemary Street
Chapel Hill, North Carolina 27514
WILEY F. BOWEN
P. O. Box 151
Dunn, North Carolina 28334
ATTORNEYS FOR PETITIONER
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TNDEX
Page
Citation to Opinion Below .....ceeeeeeecees ecvccccceces l
Jurisdiction .cccoccccccccecece TEPTTEETITILILILE TTT ° 1
Question Presented ......cceeeeees ecccccccccececoscceses 2
Constitutional and Statutory Provisions Involved ...... 2
Statement Of the CaSE ccccccccccccccccscscesesesssesees 3
How the Federal Question was Raised and Decided Below . 12
Reasons for Granting the Writ
The Court Should Grant Certiorari to
Consider Whether the Imposition and
Carrying Out of the Sentence of Death
i for the Crime of Rape Under the Law
of North Carolina Violates the Eighth
or Fourteenth Amendment to the Consti-
tution of the United States .....cc.ccecceces 13
!
| Conclusion ....cceceeces TETTITULITILITL LITT 14
TABLE OF CASES
| Dillard v. North Carolina, No. 73-6875 (filed June 11,
UOTE) ccccccccccceccececeeceece soececccocsococeboese 13
' Fowler v. North Carolina, No. 73-7031 (cert. granted
Seteied BG, BGG i056 den ccadoesesess ab eedeceedsens 13
Noell v. North Carolina, No. 73-6876 (filed June 11,
1974) cccccccccceces eeccecececcces ecccccccecceseos eccs 13
State v. Waddell, 282 N.C. 431, 194 S.E.2da 19 (1973)... 2,3,4
| State v. Williams, _N.C. __,212 S.E.2d 113 (1975)..... 4,5
Statutes:
'
| N.C. Geng Stat. §14-2l(repl. vol. BOSD) cccwccccesececse ee 2
§14-21(1974 supp.) “eevee eee eneneeneeneeanenenee - 3
| §15-187(repl. vol. 1975)........ coccces 2
615-188 (repl. vol. 1975) ...ceeeeeceees 2
H.B. 953, c. 749 (N.C. Leg. Sess. 1975).....-ee-- oeeese 5
28 «U.S.C. §1257(3)....... ere" pibenebeentsnesseoec ae 1
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
No. 75-
ERNEST FRANZILLE ARMSTRONG,
Petitioner,
i,
STATE OF NORTH CAROLINA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of the State of North Carolina
entered on April 14, 1975.
CITATION TO OPINION
BELOW
The opinion of the Supreme Court of North Carolina is
reported at N.C. _, 212 S.E.2d 894 (1975), and is set out in
Appendix A hereto, pp. la-5a, infra.
JURISDICTION
The judgment of the Supreme Court of North Carolina was
entered on April 14, 1975, and is set out ih 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 secured by the Constitution of the United States.
QUESTION PRESENTED
Whether the imposition and carrying out of the
death for the crime of rape under the law of North C
sentence of
arolina
violates the Eighth or Fourteenth Amendment to the Constitution
of the United States?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. This case involves the Eighth and Fourteenth Amendments
to the Constitution of the United States.
2. This case also involves the following provi
the General Statutes of North Carolina:
NsC. Gen. Stat. §14-2l(repl. vol. 1969):
“Punishment for rape.-- Every person who is
sions of
convicted of ravishing and carnally knowing
any female of the age of twelve years or more
by force and against 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
shall so recommend at the time of rendering its
verdict in open court, the punishment shal
l be
imprisonment for life in the State's prison, and
the court shall so instruct the jury." 1/
N.C. Gen. Stat. §15-187 (repl. vol. ‘1975):
“Death by administration of lethal gas.--Death by
electrocution under sentence of law is hereby
abolished and death by the administration of lethal
gas substituted therefor."
N.C. Gen. Stat. §15-188 (repl. vol. 1975):
“Manner and place of execution--The mode of
executing a death sentence must in every case
be by causing the convict or felon to inha
lethal gas of sufficient quantity to cause
le
death, and the administration of such lethal
l/ As construed in State v. Waddell, 282 N.C. 431,
(1973).
194 S.E.2d 19
a
gas must be continued 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 jurisdiction to be so
executed, such punishment shall only be inflicted
within a permanent death chamber which the super-
intendent of the State penitentiary is hereby
authorized and directed to provide within the
walls of the North Carolina penitentiary at
Raleigh, North Carolina. The superintendent
of the State penitentiary shall also cause
to be provided, in conformity with this article
and approved by the Governor and Council of State,
the necessary appliances for the infliction of the
punishment of death in accordance with the require-
ments of this article."
STATEMENT OF THE~CASE
This is a petition for a writ of certiorari to review the
judgment of the Supreme Court of North Carolina, entered on
April 14, 1975, affirming petitioner's conviction and death
sentence. Petitioner, Ernest Franzille Armstrong, a black man,
was sentenced to die on March 21, 1974, in the Harnett County
Superior Court of North Carolina upon conviction for the rape
2/
of Mrs. Roena Massey, a black woman.
2/ Petitioner's sentence of death was imposed under N. C. Gen.
Stat. §14-21 (repl. vol. 1969), as construed in State v. Waddell,
282 N.C. 431, 194 S.E.2d 19 (January 18, 1973). The North Carolina
Legislature subsequently enacted a statute, S.B. 157, Chap. 1201,
1973 Sess. (2nd Session, 1974) effective April 8, 1974, which
imposes the death penalty for certain “first degree" rapes. This
statute, ‘now codified as N.C. Gen. Stat. §14-21 (1974 supp.),
provides:
“Rape; punishment in the first and second degree.--
Every person who ravishes and carnally knows any
female of the age of 12 years or more by force and
against her will, or who unlawfully and carnally
knows and abuses any female child under the age of
12 years, shall be guilty of rape, and upon convic-
tion, shall be punished as follows:
Mrs. Massey, who was the 69 year old aunt of Sherill "Pem
2/ cont'd.
(a) First-Degree Rape--
(1) If the person guilty of rape is more
than 16 years of age, and the rape
victim is a virtuous female’ child under
the age of 12 years, the punishment shall
be death; or
(2) If the person guilty of rape is more than
16 years of age, and the rape victim had
her resistance overcome or her submission
procured by the use of a deadly weapon,
or by the infliction of serious bodily
injury to her, the punishment shall be
death.
(b) Second-Degree Rape--Any other offense of rape
defined in this section shall be a lesser-included
offense of rape in the first degree and shall be
punished by imprisonment in the State's prison for
life, or for a term of years, in the discretion of
the court."
However, the Supreme Court of North Carolina has expressly
‘held that the enactment of this statute did nct affect death
sentences for rape imposed under the State v. Waddel] procedure.
In State v. Williams, _N.C.__, 212 S.E.2d 113 (1975), the Court
affirmed a death sentence for “rape” which had been imposed under
the Waddell procedure for a crime committed on May 16, 1973, which,
if it had been committed after April 8, 1974, would appear to have
been non-capital second-degree rape. The Court ruled that the 1974
rape statute was nowise retroactive:
“In clear, explicit terms the Legislature provided
‘This act shall become * * * applicable to all
offenses hereafter committed.' Had these words been
omitted, the Act would, nevertheless, apply .o all
offenses committed afte its effective date, 8 April
1974. Consequently, these words were not used for
the purpose of giving the Act that effect. It is
a well established principle of statutory construction
that a statute must be construed, if possible, so as
to give effect to every part of it, it being presumed
that the Legislature did not intend any of its pro-
visions to be surplusage ... . We construe the pro-
vision in the 1974 Act, ‘This act shall become * * *
applicable to all offenses hereafter committed’ as a
saving clause, showing the intent of the Legislature
to leave the preexisting statute in effect as to the
elements of and punishment for the crime of rape
committed prior to 8 April 1974."
212 S.E.2da at 119-120. Chief Justice Sharp, 212 S.E.2d at 123-125,
ee meet
Pam" Stewart, first saw petitioner when he visited her home in
2/ cont'd.
and Mr. Justice Exum, 212 S.E.2d at 121-122, dissented from this
construction of the 1974 rape statute and would have applied it
retroactively to invalidate a death sentence which was imposed
“for a crime which is not now punishable by death," (212 S.E.2d
at 125 (dissenting opinion of Chief Justice Sharp)).
In the decision announced in petitioner's case, a majority
of the North Carolina Supreme Court declined to vacate petitioner's
death sentence and to consider whether the evidence would have sus-
tained only a non-capital seconde degree rape conviction in a post-
April 8, 1974 case. Chief Justice Sharp, Mr. Justice Exum, and
Mr. Justice Copeland dissented from this ruling for the reasons
stated in the State v. Williams dissents. 212 S.E.2d at 898;
App. A, infra, at 5a.
On June 24, 1975, the North Carolina General Assembly enacted
H.B. 953, c. 749 (1975 Sess.), effective immediately, which provides
that any defendant sentenced to death for a rape occurring after
January 18, 1973, and prior to April 8, 1974, whose death sentence
was sustained on appeal may apply to a trial judge of the judicial
district in which the rape trial was held “to determine whether
the defendant could have been punished by death had the rape been
committed by him after the ratification of Chapter 1201, Session
Laws of 1973," (Section 2(a)). Section 2 of this law provides:
“(b) Said judge shall review a certified transcript
of the evidence presented at trial (or if such transcript
is not available, the record on appeal), make such in-
dependent investigation as he deems necessary to deter-
mine the age of the defendant or of the rape victin,
and hear arguments or accept briefs in behalf of the
defendant and the State.
(c) Thereupon, the judge shall determine the following
question:
Is the evidence presented at the defendant's
trial, plus additional evidence of the age of
the defendant or the age of the rape victim,
sufficient to submit the defendant's case to a
jury on the charge of first degree rape as
defined by G.S. 14-21l(a), had the date of the
rape been after April 8, 1974?
(a) If the question is answered in the affirmative, the
defendant shall remain subject to the sentence of death.
If the question is answered in the negative, the judge
shall forthwith schedule a hearing for the presentation
of evidence relative to resentencing the defendant; after
the hearing, the sentence of death for rape previously
imposed shall be vacated,and the defendant shall be re-
sentenced as if he had been convicted of a second degree
rape fo a rape cummittec afte: April &. 2974.°* (Baapiie
added).
~ 2
Coats, North Carolina, with Mr. Stewart at 7:30 p.m., November 10,
7
1973. Mrs. Massey “laughed and talked", R. 10, with her
nephew (who, she later testified, appeared to her to have been
drinking, R. 18) for about an hour; but petitioner, who said
his name was “David", ibid., said nothing else and she said
nothing to him. Stewart said he was going to his brother's
surprise birthday party, R. 19, and told her that petitioner was
“in the family," R. 11, because he was married to Stewart's wife's
first cousin. Petitioner remained standing during the entire visit,
although Mrs. Massey and her nephew were seated. R.18. The two
men left about 8:30 p.m., and Mrs. Massey went to bed about
9:00 p.m. or 9:30 p.m. Ibid.
About five minutes after midnight on November 1l, Mrs.
Massey was awakened by the ringing of her doorbell. Thinking the
caller was her granddaughter, she opened the door. Petitioner,
who was wearing a pair of brown pants and a brown shirt with
ruffles on it, R. 16, stepped into her house, telling her that
“*'Ppem Pam said send him one of your stockings.'" R. 12. She
was “positive” petitioner had been drinking because he smelled
of alcohol. R. 20. She asked petitioner where her nephew was,
3/ The State's evidence consisted of the testimony of four
witnesses (Mrs. Massey; L. R. Doffermyre, a medical doctor who
examined Mrs. Massey on November 11, 1973; and two policemen,
Ronald V. Peters and Charles L. Beegle) and three exhibits (the
pants and shirt petitioner was wearing on the night of the rape,
and a statement which the police took from Mrs. Massey. ) However,
no chemical tests were performed on the clothes and Mrs. Massey's
statement was introduced for corroboration and not as substantive
evidence. The presentation of the State's case occupies 22 pages
of the 74-page record on appeal.
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since petitioner appeared to be alone. He did not respond
to her question but simply repeated that “Pem Pam said...
to send him one of .. . fher]) stockings,” ibid. Petitioner
followed Mrs. Massey into the den of the house:
“I told him I weren't going to do it and
after a while he said ‘you ain't going to
send him the stocking then?' I said ‘No.’
I said ‘Go tell Pem Pam I said go home to
his wife and family and go to bed because
I am not going to send it ['] and I meant just
that, and by that time he was just staring
at me so fearless until I saw there was
something in him that weren't right and I
got frightened and I began to back off from
him and as I was backing off. [sic] I just had my
gown on. When I got frightened, well, I
begin to back back [sic* towards my kitchen
sink and he was advancing up on me, and he
just kept advancing up on me as I was walking
backwards.
eo
He says ‘I tried to talk nice to you [']Jand says
{'}] you wouldn't listen but I bet you will.'‘"
R. 12. Petitioner then seized Mrs. Massey and put his arm around
her neck and his hand over her mouth; he declared “‘'do like I
tell you and I won't hurt you.'" Ibid. He repeated ""'and you
ain't going to send the stocking?'", R. 13, and when she said
no, he gagged her with a pair of nylon hose which were lying on
a chair:
“He didn't say why he did this, only he just
said ‘I'm going to do something, I am going
to do somethibg [sic], do something like Pem
Pam is doing over there in that white house.
I'm going to do something, that is all. Do
like T tell you and I won't hurt you, do
like I tell you and I won't hurt you.’
After he put the panty hose in my mouth
there was nothing I could do. I sure was
frightened then, you know I was. He just
kept pulling on me and seesawing me and
zigzagging me until he got me in my bed-
room and he said ‘be nice now and I won't
hurt you, be nice now and I won't hurt you.
I am going to do like Pem Pam is doing over
yonder in that white house. I am going to
do something.' He didn't say what he was
goiny to do. No, he didn’t, and
there beside of my bed I had a scatter rug
when Ll gov
EN A ee et en ET RR oT EE eee Petey ey et ae litete emer 6 Oe ren pers: EE OI A te te
e . . os . ae .
there beside the bed on the floor and
when I stepped on that rug I slipped to
my knees and he told me then to [' ]get
up and get on the bed, get up and get
on the bed. Be nice and I won't hurt
you.*”
R. 13-14.
Petitioner maneuvered her onto the bed and had sexual inter-
course with her. He carried no weapon of any kind and Mrs. Massey
testified that he did not strike her. R. 21. She “did not at any
time scream out on this particular night," R. 20, because "I ain't
' never been no scareder since I have been born in the world than
I was then." R. 14.
Petitioner said nothing while he put his clothes on. As
he left, he inquired, “"You ain't going to put the law on me is
you?'", R. 15, and Mrs. Massey said she would not. He asked if
she had a telephone and she said that she did not. Ibid. He then
said: “‘If I come back here and knock the door lightly and say,
It's David, will you open the door and let me in?'” Ibid. She
said she would, and petitioner left, carrying the nylon hose with
him. Mrs. Massey immediately went to her granddaug}l.ter's house,
about a block away, and told her what had happened. Her grand-
daughter then called the police. Ibid.
Doctor L. R. Doffermyre testified that he had performed
an internal examination of Mrs. Massey at 11:00 a.m., November
11, 1973. She told him that she had been raped about ten hours
earlier by a black male whose name she did not know but who had
we te Pree -—- — — ~er 6 RD OR Re FN FER” orem gt rete: Sore the & me OP Pe me PEO Y RR mer lien Meat aad Dette ~1 Et oo
visited her home with her nephew the previous evening. The mucus
membrane of the vagina exhibited a slight tear, but there was no
bleeding. Sperm were found in the vagina and Dr. Doffermyre con-
cluded that “she had definitely had intercourse.” R. 26.
The Coats Chief of Police, Ronald V. Peters, testified
that he had conversed with Mrs. Massey at her house at 1:15
a.m., November 11, 1973. She told him she had been raped and he
wrote out a “verbatim” statement, R. 29, of what she told him.
Mrs. Massey signed this statement, ibid., which was introduced
at trial to corroborate her testimony. Chief Peters testified that
he knew the “general character and reputation" of Mrs. Massey |
in the community in which she resides and that it was "very
good." R. 31. Another Coats policeman, Charles L. Beegle,
testified that when he arrested petitioner at his house at 2:00
a.m., November 11, 1973, he saw clothing described by Mrs.
Massey on petitioner's couch. R. 32. Beegle seized a pair
of brown trousers and a brown shirt with ruffles. R. 27, 32. Mrs.
Massey identified these items as the clothes petitioner wore
on the two occasions when he visited her house. R. 27.
Petitioner testified in his own defense and did not deny
having sexual intercourse with Mrs. Massey in the early morning
of November 11, 1973. He claimed, however, that on his first
visit to Mrs. Massey's house, she had spoken to him while her
nephew was in the bathroom and had invited him to return alone
later that night. R. 38. Petitioner testified that, when he
0 eh UR OD ewe eer POR OT Le OR RREE * 10» 8 tm for ~~ ew erent AO, genie ant nee tillen waa a
ts be £ - —- ' - %s -
returned shortly after midnight, she knowingly let him into the
house, voluntarily disrobed, and acquiesced in his desire to
4/
have intercourse. Sherill “Pem Pam" Stewart testified as a
4/ Both petitioner and Stewart testified that they had been
drinking heavily before and after their visit to Mrs. Massey's
house. R. 34, 41-42. Petitioner testified that during Stewart's
brief absence to go to the bathroom, Mrs. Massey “asked me could
I come back and I told her I didn't know if I would come back
later because I works and I didn't know if I could come back that
night due to that was my first time at her home, but I would see
about it." R. 37-38.
"After I arrived the second time I rang the
doorbell and she came and opened the door, and
seen who I was and she said ‘Come in‘. So, I
walked in and we walked to the kitchen area
or rather the den area where we had -- which we
had a conversation there and that is where we
came up with about sex. She told me that she
could fool a lot of men, lot of young men and
I told her if she could I would like for her
to fool me. So, and then we talked and I just
can't remember all exactly what we said then
and then we moved into the bedroom.
After moving into the bedroom she sit on the
bed and stood at the foot part of the bed
and she laid down, after she had layed down then
I sit on the bed and while talking to her I
leaned over and placed my hands on her shoulder
and we talked. So, I got up and she asked me
then ‘What are you going to do?' And, I said
‘I can't do nothing with my clothes on.' So
she begin to pull up her gown and I stood near
the foot of the bed and opened my pants and
my underwear and after that -- well, proceeded
in the bed. I had intercourse with her at that
time.”
R. 38. As petitioner started to leave,
“[s]Jhe asked me ‘Would you be coming back?'
I said I don't know whether I will get back
soon or not and after that I started to walk,
I left off the porch and went to the -- I got
in the yard between her porch and my car and
she told me saic ‘I don't want to hear any-
thing else about this.' So, I said, ‘I can't,
I'm married too.' So, she asked me before I
got to my car, she said 'Do you have any money
defense witness, corroborating several details of petitioner's
testimony, although he stated that he did not hear petitioner
and Mrs. Massey conversing while he was in the bathroom. R. 34-
35.
Petitioner was committed to the Dorothea Dix Hospital in
Raleigh, North Carolina, for a competency examination before
trial. Although he was found to be “somewhat retarded,”
R. 7, with a history of “blackout spells", ibid., and although
he was determined to be “functioning at a sub-normal intelligence
level," ibid., he was pronounced “Not insane" and “competent to
5/
stand trial at the present time" R. 8.
4/ cont'd.
on you?' and I said ‘No, I don't have any [, ]
not right now.' I said I don't have any
right now because the money that I was using
I got that from Pem Pam which he had borrowed
and I got in my car and left."
R. 39. According to petitioner, he weighec 236 pounds and was
five feet, nine inches tall: "I really couldn't say how much
Roena [Massey] weighed . . . I suppose she does weigh considerably
less than I do. She did not tell me she was 69 years old." R. 40.
Petitioner admitted that he had been convicted of “destroying
State property," ibid., jumping off a train on the hood of a
police car," ibid., “white slavery," ibid.,"shooting [a pistol
illegally]," ibid., “robbery,” R. 41,"attempt to commit robbery,"
ibid., and “escape,” ibid. A great deal of the State's cross
examination was spent delving into the facts of these criminal
convictions and other alleged criminal activity, and to
establishing the amount of time that petitioner had spent in
jail and in prison. See R. 39, 40-41, 43, 48-50.
5/ The psychiatric report prepared after petitioner's examination
concluded:
"Mental Status and Physical Examination: Upon
admission he seemed somewhat retarded but was
cooperative. Again he complained of occasional
dizzy spells and voices calling his name. He
gave rational answers most of the time, but he
is circumstantial [sic] for moments. He is oriented
with memory defect for some events, doing poorly
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A tye ounere bnebite & <n Oey e’ Be ng nr ete ce et ie tee 6 ee OR GREET Le STEVE Re ow He Ce eA ta ed + ree Fopmamen = |
- - ~~ - - —
At the conclusion of the evidence, the trial court charged
the jury that it could find petitioner guilty of rape, R. 65,
guilty of assault with intent to commit rape, R. 65, guilty of
assault on a female, ibid., or not guilty, ibid. The jury returned
a verdict of guilty of rape, R. 67, and the court thereupon
sentenced petitioner to death. R. 69.
On April 14, 1975, the Supreme Court of North Carolina,
with three Justices dissenting in regard to the death penalty,
&/
affirmed petitioner's conviction and death sentence.
HOW THE FEDERAL QUESTION WAS RAISED
AND DECIDED BELOW
After the jury's verdict was announced, petitioner's counsel
moved “that the death penalty not be imposed inasmuch as being un-
constitutional in this case." R.68.This motion was denied.R.69.Peti-
tioner's Assignment of Error Number 5 contended that there was errr
“la]s to the imposition of the death penalty in this case being
cruel and unusual punishment." R. 74. The Supreme Court of North
Carolim rejected this claim:
5/ cont'd.
in simple calculations. He had very limited
general knowledge and seems to be functioning
at a sub-normal intelligence level. His
physical examination was essentially normal
limits [sic)."
R. 7.
6/ On April 28, 1975, Chief Justice Sharp granted a stay of
execution “pending further orders of this court" to enable
petitioner to file a petition for a writ of certiorari,
"[d]efendant contends that imposition of the
death penalty is legally unauthorized and
constitutes cruel and unusual punishment
prohibited by the Eighth and Fourteenth
Amendments to the Constitution of the United
States. This contention has heretofore been
considered and determined to be without merit
in various cases, including State v. Henderson,
285 N.C. 1, 203 S.E.2d 10 (1974); State v.
Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974);
State v. Noell, 284 N.C.°670, 202 S.E.2d 750
(1974); State v. Jarrette, 284 N.C. 625, 202.
S.E.2d 721 (1974); State v. Waddell, 282 N.C.
431, 194 S.E.2d 19 (1973). Defendant's...
assignment of error based on this contention
is overruled."
State v. Armstrong, _N.C.__, 212 S.E.2d 894, 897 (1975); App.
A, infra, at 4a.
REASONS FOR GRANTING THE WRIT
THE COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE IMPOSITION AND CARRYING OUT OF THE
SENTENCE OF DEATH FOR THE CRIME OF RAPE UNDER
THE LAW OF NORTH CAROLINA VIOLATES THE EIGHTH
OR FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES.
In order to avoid burdening the Court with lengthy and repe-
titious matter, petitioner adopts the "Reasons for Granting the
Writ" sections, respectively, of the Petition for Writ of Certiorari
to the Supreme Court of North Carolina, Dillard v. North Carolina,
No. 73-6875 (filed June 1l, 1974), at 11-51 (attached as Appendix
B, infra) and of the Petition for Writ of Certiorari to the
Supreme Court of North Carolina, Noell v. North Carolina, No. 73-
6876 (filed June 1l, 1974), at 19-22 (attached as Appendix C, infra).
On October 29, 1974, this Court granted certiorari in Fowler v. North
Carolina, No. 73-7031, to consider a similar question.
o 89 «
CONC LUSION
Petitioner prays that the petition for a writ of certiorari
be granted.
Respectfully submitted,
Q 8. alsa
JACK GREENBERG
JAMES M. NABRIT, III
PEGGY C. DAVIS
DAVID E. KENDALL
ERIC SCHNAPPER
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ADAM STEIN
CHARLES L. BECTON
Chambers, Stein, Ferguson & Becton
157 East Rosemary Street
Chapel Hill, North Carolina 27514
WILEY F. BOWEN
P. O. Box 151
Dunn, North Carolina 28334
ATTORNEYS FOR PETITIONER
Appendix A
State v. Armstrong, __N.C.__.,
212 S.E.2a 894 (1975).
STATE of North Carolina
v.
Ernest Franzille ARMSTRONG.
No. 10.
Supreme Court of North Carolina.
April 14, 1975
Defendant was convicted in the Superi-
or Court, Harnett County, Hamilton H.
Hobgood, J., of rape, was sentenced to
death, and he appealed. The Supreme
Court, Huskins, J., held that force necessary
to constitute rape need not be actual physi-
eal force but fear, fright, or coercion could
take its place; that the evidence was suffi-
cient to support the conviction; that the
imposition of the death penalty was legally
authorized and did not constitute cruel and
and that where the
only dispute between the State and the
unusual punishment;
defendant was whether the act of inter-
course was accomplished by consent or by
foree, there was no necessity to submit the
lesser included offenses of assault with in-
tent to commit rape and assault on a fe-
male.»
No error.
Sharp, C. J., and Copeland and Exum,
JJ., dissented as to the death sentence and
filed opinions.
1. Rape co]
Rape is carnal knowledge of female
person by foree and against her will
2. Rape 6
Actual physica! force is not necessary
to constitute rape, but fear, fright or coer-
cron may tuke its place
3. Rape 1]
Although consent by female is com-
plete defense to charge of rape, there is no
legal consent when it is induced by fear of
violence
212 SOUTH EASTERN REPORTER, 24 SERIES
4. Rape &51(4)
Evidence, including testimony of victim
that she did not consent to intercourse, and
that she resisted to best of her ability but
that her struggle ceased when she realized
that she was helpless to protect herself and
was in fear of death or serious bodily harm,
was sufficient to sustain conviction of rape
and to warrant denial of motion to set aside
verdict as being contrary to weisht of evi-
dence.
5. Criminal Law ¢=935(1)
Motion to set aside verdict as being
contrary to weight of evidence is addressed
to diseretion of trial judge.
6. Criminal Law ¢#970(1)
Motion in arrest of judgment is made
after verdict is designed to prevent entry of
judgment, and is bused upon insufficiency
of indictment or some other fatal defect
appearing on face of record
7. Criminal Law ¢@ 1088.1
Record proper in criminal case ordinari-
ly consists of organization of the court, the
charge, i.e., information, warrant or indict-
ment, arraignment and plea, the verdict,
and the judgment.
8. Criminal Law 972
Where face of record proper in rape
prosecution revealed no fatal defect, denial
of defendant's motion in arrest of judgment
of conviction was proper
9. Criminal Law o 1213
Rape o> 64
Imposition of death penalty for rape
was leyally authorized and did not consti-
tute cruel and unusual punishment. USC
A.Const. Amends. 8, 14
10, Rape O>59(20)
In rape prosecution, wherein only dis-
pute between State and defendant was
whciher admitted act of sexual intercourse
Was sccompished by consent or by force,
there was no necessity to submit lesser in-
{la}
STATE +. ARMSTRONG
Cite as 212 5.0.20 94
cluded offenses of assault with intent to
commit rape and assault on female.
11. Criminal Law ¢=795(1)
Lesser included offenses must be sub-
mitted only where there is evidence to sup-
port them.
12. Criminal Law @1165(3)
Error favorable to defendant did not
warrant reversal.
Defendant was tried upon a bill of indict-
ment, proper in form, charging him with
the rape of Roena Massey on 11 November
1973 in Harnett County.
The State offered evidence tending to
show that Rocna Massey is the aunt of
Sherill Donald Stewart. At approximately
5 p.m. on 10 November 1973 the defendant
Ernest Franzille Armstrong and Sherill
Donald Stewart were together in the town
of Benson drinking scotch and beer. About
7:30 p.m. they went to the home of Roena
Massey in the nearby town of Coats where
they remained for approximately one hour.
Roena Massey did not know defendant and
had never seen him before. Both men stat-
ed that Stewart's wife and defendant's wife
were first cousins. They left about 8:30
p.m., and Roena Massey went to bed around
9:30 p.m.
The two men toured several night spots
in. Harnett County and separated after re-
turning to Benson. Defendant returned to
the home of Roena Massey about midnight,
and she was awakened when he rang the
doorbell. She arose, turned on the light,
unlocked the wooden door and then un-
locked the storm door. Defendant stepped
inside. Mrs. Massey said she thought it was
her granddaughter and opened the door
without paying much attention
Defendant followed Mrs. Massey into the
den. She asked him what he was doing
there, and he replied: “Perm Pam [Sherill
Donald Stewart} said send him ene of our
stockings.” Mrs. Massey informed defond-
ant she would do nothing of the sort. De-
[2a]
A A tse
N.C. 895
fendant was staring at her and she com.
menced to back away while defendant .-a«
advancing upon her. Defendant said, “!
tried to talk nice to you and you wouldn':
listen but I bet you will.” He threw his
arms around her neck, placed his hand over —
her mouth and said, “Do like 1 tell you and
1 won't hurt you.”
Defendant gagged Mrs. Massey with her
panty hose, forced her into the bedroom and
raped her. Defendant thereupon left after
exacting a promise from her that she woule
not “put the law on him.” Mrs. Massey
then ran to the nearby home of her grand.
daughter, told her what had happened, anu
she called the police.
Mrs. Massey was examined by Dr. Dof
fermyre at 11 a.m. on 11 November 1973
She gave the doctor a history of havinp
been raped the night before by « colored
man whose name she did not know. The
examination revealed the presence of sperm
in all microseopic fields, and Dr. Doffer-
myre stated that unquestionably the pa
tient had had intercourse. The bottom wall
of the vaginal vault revealed a split in the
mucous membrane one and one half inche:
long, and the injury appeared to be recent.
The State's evidence further shows that
Mrs. Massey was sixty-nine years of age
and weighed approximately 110 pounds.
She had lived in and around the town of
Coats for approximately twenty years and
had no criminal record. The police chief
testified that her general reputation in the
community was very jrood.,
Defencant, testifying in his own behalf,
stated that he and Stewart were drinking,
and while they were at Mrs. Massey's home
he told her his name was “Cherry” and she
asked him to return later. In response to
chat invitation he returned about midnight
and wus admitted to her home. They en-
paged in sexual relations by mutual con-
sent. Thereafter they talked for a while
and she accompanuw«l him to the front door
when be departed.
On cross-examination defend>nt stated
that he was thirty-one years old and
896 N.C.
weighed 236 pounds; that he had heen con-
vieted of destroyings State property in Ben-
ton, Louisiana, and of other crimes in Fl
Paso, Texas, Montgomery, Alahama, Jack-
sonville, Florida, Texarkana, Arkansas, and
New Orleans, Louisiana.
Sherill Donald Stewart testified that he
and defendant went to the home of Roena
Massey about 7:30 p.m. on 10 November
1973 and stayed about forty-five minutes;
that he left the room on one occasion while
they were there and, of course, heard no
conversation between defendant and Mrs.
Massey during his absence. He stated that
defendant said nothing about returning to
Mrs. Massey's home but said he was going:
home when they parted about 9:30 p.m.
The trial court instructed the jury to
return one of the following verdicts: Guilty
of rape, guilty of assault with intent to
- commit rape, guilty of assault on a female,
or not guilty. The jury convicted defend-
ant of rape, and he was sentenced to death,
From that judgment he appeals to this
Court assigning errors noted in the opinion.
Robert Morgan, Atty. Gen and William
F. O'Connell, Asst. Atty. Gen., Raleigh, for
the State of North Carolina.
Wiley F. Bowen, Dunn, for defendant-ap-
pellant.
HUSKINS, Justice:
The defense in this case is based on con-
sent.
lied upon by the State to show resistance on
Defendant contends the evidence re-
the part of Mrs. Massey is inconclusive and
the trial judge failed to declare and explain
the law, as required by G.S. § 1-180, rela-
tive to Mrs. Massey's conclusion that resist-
ance on her part would be useless. This
constitutes the basis for defendant's first
assignment of error
The court charged on this point as fol-
lows:
“Now, I charge you for you to find the
defendant guilty of rape the State must
prove three things beyond a reasonable
doubt:
*
212 SOUTH EASTERN REPORTER, 24 SERIES
First, that the defendant had sexual
intercourse with Roena Massey.
Second; That the defendant used or
threatened to use foree sufficient to over-
come any resistance she might make.
Now, in reference to force the court in-
structs you that force necessary to consti-
tute rape need not be actual physical
foree. Fear, fright or coercion may take
the place of force. While consent by the
female, Roena Massey, is a complete de-
fense for the defendant, consent which is
induced by fear of violence is void and is
not legal consent.
Consent of the woman for fear of per-
sonal violence is void. Even though a
man lays no hand on a woman yet if by
an array of physical force he so overpow-
ers her mind that she dares not resist or
she ceases resistance through fear of
great harm, the consummation of the un-
lawful intercourse by the man is us a
matter of law rape.
The third point that must be proven to
you by the evidence and beyond a reason-
able doubt is that Roena Massey did not
consent and it was against her will.”
[1-3] The quoted portion of the charge
clearly enunciates the law of this State.
Rape is the carnal knowledge of a female
person by force and against her will. State
v. Flippin, 280 N.C. 682, 186 S.B.2d 917
(1972). Fear, fright or coercion may take
the place of actual physical force. State v.
Williams, 275 N.C. 77, 165 S.B.2d 481 (1969).
Although consent by the female is a com-
plete defense to a charge of rape, there is
no legal consent when it is induced by fear
of violence.. State v. Carter, 265 N.C. 626,
144 S.B.2d 826 (1965).
[4] Mrs. Massey testified, among other
things, that she was terribly frightened,
that “he had done throwed his arm around
my neck like that and was choking me
(indicating) and hand come oyer my mouth.
I sure wus frigheotb.
He was holding me hy my neck !
began io give up because | didp’t know
where he was going to kill me or what he
{3a}
STATE v. ARMSTRONG
Cte as 212 S24 894
was going to do to me and | was there
alone in that house by myself. . . . 1
couldn't get away from him beeause he had
me around the neck like this choking me
and his hand ever my mouth there weren't
no way for me to. He just kept
pulling on me and scesawing me and zig-
zagging me until he got me in my bedroom
I ain't never been no scareder
since I have been born in the world than I
was then. . Weren't no way in this
world for me to yell for help no way.”
There is nothing in the testimony of Mrs.
Massey to support the suggestion that she
consented. The only reasonable inference
to be drawn from her testimony is that she
did not consent and that she resisted to the
best of her ability. Her strugyles ceased
when she realized she was helpless to pro-
tect herself and was in fear of death or
serious bodily harm at the hands of a thir-
ty-one year old man weighing 236 pounds.
Hence, in accordance with well established
legal principles, there was ample evidence
to support defendant's conviction for rape.
State v. Henderson, 285 N.C. 1, 203 S.E.2d
10 (1974); State v. Primes, 275 N.C. 61, 165
$.E.2d 225 (1969). Defendant's first assign-
ment of error is overruled.
Failure of the court to set aside the ver-
dict and arrest judgment constitutes de-
fendant's second assignment of error. We
find no merit in this assignment for the
reasons stated below.
[5] A motion to set aside the verdict as
being contrary to the weight of the evi-
dence is addressed to the discretion of the
trial judge. State v. Arnold, 2%4 N.C. 41,
199 S.E.2d 423 (1973); State v. Henderson,
276 N.C. 430, 173 S.E.2d 21 (1970). The
evidence amply supports the verdict. No
abuse of discretion is shown.
[6] A motion in arrest of judgment is
made after verdict, designed to prevent en-
try of judgment, and is based upon the
insufficiency of the indictme... or some oth-
er fatal defect appearing on the face of the
record. State v. McCollum, 216 N.C. 737, 6
S.F.2d 593 (1940). “In « er: tinal prosecu-
i4a]
N.C 897
tion, however, judgment may be arrested
when—and only when—-some fatal error or
defect appears on the face of the record
proper.” State v. Kirby, 276 N.C. 123, 171
S.F.2d 416 (1970); State v. Higgins, 266
N.C. 589, 146 S.E.2d 681 (1966).
[7,8] The record proper in criminal
cases ordinarily consists of (1) the organiza-
tion of the court, (2) the charge, i. e., the
information, warrant or indictment, (3) the
arraignment and plea, (4) the verdict, and
(5) the judgment. State v. McClain, 282
N.C. 357, 193 S.E.2d 108 (1972); State v.
Tinsley, 279 N.C. 482, 188 S.£.2d 669 (1971).
Here, the face of the record proper reveals
no fatal defect, and denial of defendant's
motion in arrest of judgment was proper.
Defendant's second assignment of error is
overruled.
{9} Finally, defendant contends that im-
position of the death penalty is legally un-
authorized and constitutes cruel and un-
usual punishment prohibited by the Eighth
and Fourteenth Amendments to the Consti-
tution of the United States. This conten-
tion has heretofore been considered and de-
termined to be without merit in various
cases, including State v. Henderson, 225
N.C. 1, 203 S.B.2d 10 (1974); State v. Dil-
lard, 285 N.C. 72, 203 S.B.24 6 (1974); State
v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974);
State v. Jarrette, 284 N.C. 625, 202 S.B.2d
721 (1974); State v. Waddell, 282 N.C. 431,
194 S.E.2d 19 (1973). Defendant's third as-
signment based on this contention is over-
ruled.
[10-12] It should be noted that all of
the evidence in this case reveals a complet-
ed act of sexual intercourse. The only dis
pute between the State and the defendant
is whether the act was accomplished by
ecnsent or by foree. Under those cireum-
stances there was no necessity to submit
the lesser included offenses of assault with
intent to commit rape and assault on a
female. Lesser included offenses must be
submitted only when there is evidence to
support them. State v. Watson, 2&3 NLC.
383, 196 S.B.2d 212 (1973); State v. Bryant,
898 N.C.
280 N.C. 551, 187 S.E.2d 111 (1972). Sub-
mission of the lesser included offenses, how-
ever, was error favorable to the defendant
and affords him no grounds for relief.
We have carefully examined the entire
record and conclude that defendant re-
ecived a fair trial, free from prejudicial
error. The trial, verdict and judgment
must therefore be upheld.
No error.
SHARP, Chief Justice, dissents as to the
death sentence and votes to remand for
imposition of a sentence of life imprison-
ment for the reasons stated in her dissent-
ing opinion in State v. Williams, 286 N.C.
422, 434, 212 S.B.2d 113, 123 (1975).
COPELAND), Justice, dissents as to death
sentence and votes to remand for imposition
of a sentence of life imprisonment for the
reasons stated in his dissenting opinion in
State v. Williams, 286 N.C. 422 at 437, 212
$.0.2d 113 (1975). ,
EXUM, Justice, dissents from that por-
tion of the majority opinion which affirms
the death sentence and votes to remand this
case in order that a sentence of life impris-
onment can be imposed for the reasons stat-
ed in his dissenting opinion in State v. Wil-
liams, 286 N.C. 422, 212 S.B.2d 113 (1975).
James T. SPEIGHT and Maggie
Ib. Speight
¥.
Plijah H. GRIFFIN and Pdith V. Griffin.
No. 7418SC899,
s
Court of Appeals of North Carolina
March 19, 1975.
Plaintiff brought action against de-
fendants, the owners of an adjoining lot, to
212 SOUTH EASTERN REPORTER, 2d SERIES
recover for trespass and diversion of sur-
face water onto plaintiff's property. The
Superior Court, Guilford County; James M.
Long, J., allowed defendants’ motion for
judgment notwithstanding the verdict in
favor of plaintiff and entered judgment in
favor of defendants. The plaintiff appeal-
ed. The Court of Appeals, Vaughn, J., held
that defendants, whose land was higher
than plaintiff's adjoining property, were
not liable to plaintiff for damage caused by
the flow of surface waters that occurred
when defendants’ old gravel driveway, that
tended to absorb and drain surface waters
away from plaintiff's property, was re-
placed with a conerete driveway that did
not absorb and drain water away from the
lower lot.
Affirmed. e
Waters and Water Courses @=119(1)
Defendants, whose land was higher
than plaintiff's adjoining property, were
not liable to plaintiff for damaye caused by
the flow of surface waters that occurred
when defendants’ old gravel driveway, that
tended to absorb and drain surface waters
away from plaintif{'s property, was re-
placed with a concrete driveway that did
not abserb and drain water away from the
lower lot.
This is an action to recover for trespass
and diversion of water onto plaintiff's prop-
erty.
Plaintiff and defendants are adjoining lot
owners on Willow Road in a subdivision in
Guilford County. Defeadants’ property is
on higher ground than plaintiff's. Defend-
ants formerly had a gravel driveway which
ran from the strect towards the rear of the
lets and was located newr the property line
©! the partics. There was no problem with
water from defendants’ higher lot. The
water generally flowed down the gravel
droweway to the rear of the lots. Plaintiff
5a)
7
Appendix B
Pp. 11-51, Petition for Writ of
Certiorari to the Supreme Court of
North Carolina, Dillard v. North
Carolina, No. 73-6875 (tiled June
ll, 1974).
——<--
REASONS FOR GRANTING THE WRIT
I. 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 FOURTLENTH AMMNDMENT TO THE CONSTI-.
TUTION OF THE UNITED STATES. pe
6/
This case and four contemporary cases present the question
of the constitutionality of the death penalty as that penalty
was resurrected inthe State of North Carolina by a four-to-three
vote of the North Carolina Supreme Court following Furman v.
Georgia, 408 U.S. 238 (1972). A brief review of post-Furman
developments relating to the death penalty in the United States
generally and in North Carolina particularly sets the question
in perspective.
The nearly universal response of state courts in obedience
to Furman was to hold that death sentences could no longer be
meted out under the capital punishment laws which had been in
effect prior to June 29, 1972, and which the Furman decision
6 / Crowder v. North Carolina, O.T. 1973, No. 73-
Henderson v. North Carolina, O.T. 1973, No. 73-
Jarrette v, North Carolina, 0O.T. 1973, No. 73-
Noell _ v. North Carolina, O. T. 1973, No. 73-
e &2 @
[1]
a eae
ee ee ee ee -
O O
VV
of that date declared unconstitutional. Subsequently, statutes
7/ See, c.g., United States v. Lee, 489 F. 2d 1242 (CA pc 1972); J
United States _v. Woods, 434 F.20a i27, 138 (CA4 1973) ("Since the
decision in Furmon v. Georgia, ... the statute under which
defendant was convicted of first degree murder, 18 U.S.C. 6111,
provides as the only possible sentence imprisonment for life”
at 138); United States v. McNally, 435 F.2d 398 (CA8 1973); |
Hubbard v. “State, 290 Ala. 118, 274 S0.2a 298 (1973) ("There is |
{
H
no question that Furron has, as of now, eliminated the death
penalty from our statute. The climination of the death penalty
docs not destroy the entire statute. The only sentence which
can now be imposed upon conviction of the crime of murder in the |
first deqree is life imprisonment." 274 So.2d at 300); State v. |
Endreson, 109 Ariz. 117, 506 P. 2a 248 (1973) ("In view of [tho
Formtn ruling) we hold that the death penalty provisions of [the ;
Arizona murder statute} are unconstitutional." 506 P.2d at 254) 5:
O'Neal v. State, 253 Ark. -574,-487°S.W. 2d 618-(1972); People |
v. Murphy, & Cal. 3d 369, 105 Cal. Rptr. 138, 503 P.2d 694 (1972);
State v. Aillon, Conn. _.» 295 A.2d 666 (1972); Anderson, et
al., v. State, 267 So. 24 8 (Fla. 1972); Sullivan ct al. v.
State, 229 Ga. 731, 194 S.E. 2d 411 (1972); People v. Spock,
52 111. 2a 234, 287 N.E. 2d 609 (1972) (“The Supreme Court of
the United States has now held that a defendant could not be
validly sentenced to death under [pre-Furman Illinois capital
statutes)." 287 N.E.2d at 700; Adams v. State, Ind.
284 N.E.2d 757 (1972); State v. Rando), 212 Kan. 461, 513 P. 2a
248 (1973) (". . .court is of the Opinion that the death penalty
provision of our present statute is constitutionally impermis-
sible. The 1972 Legislature of Kansas considered but failed to
enact amendatory legislation.” 513 P.2d at 256); Caine and
McIntosh v. Commonwealth, 491 S.W.2d 824 (Ky. 1973), cert. den. |!
414 U.S. 876; State v. Flood, 263 La. 700, 269 So.2d 212 (1972) |
(“the Furman case has eliminated ‘capital offenses’ in Louisiana.”
269 So.2d at 214); Bartholmey v. State, 267 Md. 175, 297 A.2d
696 (1972); Commonwealth v. beh lance Mass. _-_, 299 N.E.2d 719
(1973); Capler v. State, Miss. _, 268 So. So. 26 338 (1972)
(". . . the harsher penalty of eect" may not be lawfully imposed.,
The remaining part of the statute is complete. . . -We hold that
because of Furman v. Georgia, the death penalty cannot be in-
flicted, that the remainder of the statute is valid and the only |
other punishment for murder is life imprisonment." 268 So.2d at |
339-40); State v. Scott, 491 S.W.2d 514 (Mo. 1973) ("The sole and
only punishment for first degree murder in thisstate is now life
imprisonment." at 521); State v. Alvarez, No. 27435, Dist. Ct.
Lancaster Cty., Neb. Oct. 4, 1972; Walker v. State, 88 Nev. 539,
o9Ui pP.2d G51 (1972); State v. Martincau ‘and Nelson, 112 N.H. 278,
293 A.2d 766 (1972); People v. Fitzputrick, 32 N.Y. 2d 499, 300
N.E. 20d 139 (1973), cert. den. 336 L.Ed. 2a 338, 94 S.C. 554
(1973); State v. Johnson, 31 Chio St. 24 106, 285 N.E.2d 751
-o—— --
(1972) (“Under [the Furman] holding, which we are required to
follow, the infliction of the death penalty undcr the existing
law of Ohio is now unconstitutional [with possible exceptions
not relevant here])." 285 N.E. 2d at 755); Pate v. State, 507
P.2€ 915 (Oxla. 1973) (“After an exhaustive study of the
{Furmon)opinions . . . this court reluctantly finds that
it is ampermissibl¢, under said decisions, to impose
a sentence of death on any convicted person until such time as
were enacted in slightly more than half the States (and by the
—— ee -—-—-— ——— ————o _—--
federal government), authorizing the use of.the punishment of
en
death in diiforingly cefined categérice of cases. The statutes
vary widely in their temas and forms, and consequently vary
‘ - eo . 7 e ° larigg e
Vf cont'd ..-- Mets Pbbeebce ee
the laws have been duly enacted conforming to the standards set
forth in Furmoiniv. Ceorgia,” at°916); Commonwealth v. Bradley,
449 Pa, 19; 295 Al2ad B42 (1972); Hunter, ect al, v. State,
___. Tenn, _"_, .496-S$.W.2d 900. (1972). ("Tho effect of [Furman]
-'. « is to render void the penalty of death as it exists under
the statutes of Tennessec." 496°S.W.2d at 902); Lopez v. Stite,
500 S.W.2d 844 (Tex. Crin. 1973) (",-. . we find the inescapable
conclusion to be that the ‘holding “in ‘Purman and Branch rendcred
it impermissible under the Constitution of the United States to
impose the death penalty under our ten existing statutes.” At
846); Wood v. Commonwealth, 213 .Va. 346,°192 S.E.2d 808 (1972);
Stote v. Vidal, 82 Wash.2d 94, -508 P.2d 158 (1973) ("The recent
case of Purman v. Georgia. ... has the effect of preventing the
imposition of the death penalty under -the existing statutes of
the State of Was shington."> - 508 24 at 162).
.
a-n.-+oe- s-ecettrcroe :¢
-
87: ‘Some.of these -new ‘statutes: provide ‘that © a court or jury must
make a separate determination as to whether a defendant should
be, sentenced to life or. death independently of its finding the
defendant guilty ofa capital crime; conviction of a particular
offense does. not, “therefore, 1 necessarily result in a death sen-
tence.. Some of- these laws provide a~ single verdict proceeding,
in which the trial judge or jury must return a general verdict
finding a defendant - guilty of a. capital degree cf the offense.
Del.* Code, tit. 11, § 636 (1974), as amended by Del. H.B.
No. 429, 127th Gen. Ass. (1974);_N. Il, Rev. Stat. Ann. § 630:1(1)
(1973), as_usiended by N.H. S.B: 27, Chap. 34, Acts of 1974,
N.u.- Gen, Ct.; N.Mex. Stat. §§ 40A-2-1, 40A-2-1(A), 40A-29-2
(1974): N.C. Gen. Stat. §§ 14-17, 14-21, as amended by S.B. 157,
Chap. 1201, 1973 Sess. ‘laws (2nd Sess.-1974); Tenn. Code Ann,
§§ 39-2402 (as amended by Pub. Chap. 462,-Tenn. Laws 1974),
39-3702 (as amended by Pub. Chap. 461, Tenn. Laws 1974) (1974).
Others of these statutes provide a unitary proceeding where a
jury must return a verdict finding special facts to justify the
death sentence,. Ind. Code § 10-3401 (1974); Ky. Rev. Stat.
Chap. 507, as amended by Ky. H.B. No.° 232, Reg. Sess. 15974;
La. Rev. Stat. §§ 14:30, 14:42, 14: 44, (14:123 (1974); La. Code
7
~~
! 0 O
| somewhat in the questions they present regarding their compliance
- 2+ =
'
, with Furman and with the Eighth and Fourteenth Amendments to
8/ cont'd
Crim. Proc., Art. 557, 598, 817 (1974); Miss. Code §§ 97-3-19,
_ 97-3-65 (1974), as amended by Miss. S.B. No. 2341, Reg. Sess. ;
1974; Mont. Code ¢§ 94-5-102, 94-5-103, 94-5-105, 94-5-304
| (as amended by Mont. H.B. No. 643, Mont. Gen. Law5 1974) (1974);
' Nev. Code § 200.030 (1974); Okla. Stat., tit. 21, §§ 701.1,
701.3, 701.6 (1974); Wyo. Stat. § 6-54 (1974). Among the new '
| laws which provide a bifurcated proce. “ing to make this separate
' @etermination as to sentence, some aliow imposition of sentence
without any particular finding identified by the legislature as
a prerequisite for imposing either a sentence of death or lite
; imprisonment. Ga. Code § 27-2534.1 (1973), as amended by
' No. 74, Ga. 1973 Sess. Laws at 162-172; Utah Crim. Code §§ 76-
3-206, 76-5-202, 76-5-302, 76-3-207 (1974). Others of these
; bifurcated trial] statutes require the imposition of a death |
sentence when a certain finding is made at the sentencing pro-
| ceeding; some identify a particular circumstance which jwtifies :
, Imposition of a @eath sentence. Cal. Penal Code §§ 190, 190.1,
“4190.2, 209, 219, 4500 (1974); Ill. Code §§ 5-8-la, 9-1 (1974);
I Tex. Pen. Code § 19.02 (1974); Tex. Code Crin. Proc., Art. 37.071
, (1974); others identify such circumstances but provide that such
| “aggravating” circumstances may be counterbalanced by the finding |
of “mitigating” circumstances in some unspecified fashion, Ariz. |
) Rev. Stat. §§ 13-452 - 13-454 (1974; Ark. Code §§ 41-4702 - 41-4713
| Pla. Stat. §§ 782.01, 794.01, 792.141 (1974); Neb. Code §§ 28-401,
| 29-2522, 29-2523, 29-2524 (1974); still others provide formulac i
| for the weighting of “aggravating” against “mitigating” circum- j
stances to determine which defendants shall be sentenced to death.!'
' Conn. Gen. Stat. § 53a-45 (1974); Ohio Rev. Code §§ 2929.03,
2929.04 (1974); Pa. Stat., tit. 18, § 4701 (1974), as amended by
\-Pa, H.B. 1060, Act. 46, 1974 Sess. :
i’ -
I; Another group of statutes provides for the imposition of a
' death sentence by operation of law pursuant to a jury's or trial
|| Judge's conviction of a certain crime. Idaho Code §§ 18-4003,
| 18-4004 (1974); R.I. Code § 11-23-2 (1974); New York: Ass. Bill
y- 21474, 1974 Sess. Laws.
; ~ " Phe following States have not enacted legislation authoriz-
: ing the death penalty since Fumsan: Alaska, Alabama, Colorado,
Hawaii, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan,
|, Minnesota, Missouri, New Jersey, North Dakota, Oregon, South
|| Carolina, South Dakota, Virginia, Washington, West Virginia,
' Wisconsin, Vermont.
——_—_——- -
—_— -_—-——— -
— — Soe. ee eo
—— ee ee ee
*
-_
-
os
—
—
; 9/
| the Constitution. It is a fair although gross generalization
, that, in most States, the new statutes authorize capital punish-
ment for a narrower category of offenses than those that were
punishable by death in the same States before Furman. Of the 103
| men and women who have been sentenced to die in the United States
) 10/
- gince June 29, 1972, and who are presently on death row,
roughly two-thirds were condemned under the new post-Furlwin
statutes.
tt . ll/ - -
Virtually all of the remainder -- 31 men and women, to be
hd - - -- . —
9/ The first decisions by the highest court of any State affirm-
ing death sentences imposed under’ one of the new post-Furman
statutes were handed down in a Georgia murder case, State v.
House, Ga. Sup. Ct. No. 26678 (April 4, 1974) (rehearing denied,
April 25, 1974); and in a Georgia rape case, State v. | Eberheart,
Ga. Sup. Ct. No. 28776 (April 30, 1974) (rehearing 1q denied, May 21,
1974). Counsel for Mr. House and Mr. Eberheart (who include
some of the counsel for petitioner Dillard) are presently pre-
r
4
‘|
i!
|
'
|
4
a
!
\
| paring to seck review by this Court of the Georgia Supreme Court's
@ecisions. .
.
|
t
10/ We cxclude from this computation a nunber of persons sentenc
to death since Furman whose convictions or death sentences have
been reversed or vacated on appeal. The 99 figure represents
_ persons presently committed under unreversed and unvacated
sentences of death. ae i
11/ Seven persons have been sentenced to die since Furman
under the provisions of pre-Furmian_ statutes. The cases of
| six of these persons (in Massachusetts, Montana, Pennsylvania,
and South Carolina) are described in note 14,infra. The remaining
case arises under a Virginia statute which the Virginia Supreme
Court held distinguishable from the statutes invalidated in
Furman. State v. Jefferson, Va. $.C., No. 730370, decided April
22, 1974. A petition for rehearing is presently pending in
Jefferson. Should it be,denied, counsel for Mr. Jefferson (who
are easociated with some of the counsel for petitioner Dillard)
anticipate that review will be sought in this Court .
" - 15 -
it [5b]
i
|
!
pS
ed
ee @s- oe + oe oe
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exact -- are on death row in North Carolina, where post-Ffurman
developments took a markedly different turn by the margin of a
single vote cn the North Carolina Supreme Court in the case of
State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). Prior to
1947, North Carolina law had required the imposition of the
death penalty upon all convictions for the ‘crimes of first-degree
murder, rape, first ines burglary, and arson. By enactments of
1947 and 1949, the North Carolina General Assembly en that, |
in the case of convictions ‘for any of theso four offenses, the
jury might spare the ac fendant 's life by a recommendation of life
12/ ;
imprisonment. An unanimous Supreme Court of North Carolina
12/ The jury was given the power to recommend life imprisonment
in arson and burglary cases in-1947, and in murder and rape cases
-in 1949. We, have found no legislative history dealing directiy
with the 1947 enactment.
- “-
-~- —< —_—-—-. ~—-.
. The limited legislative history available for the 1949
North Carolina legislative action reflects a clear and considered
abandonment of a general mandatory death penalty. As noted in
State v. Pugh, 250 N.C. 278, 168 S.E.2d 649, 642 (concurring
opinion of Denny, J.), the 1947 General Assembly created a
Special Commission for the Improvement of the Administration of
Justice. That Comnission recommended, inter alia:
_ “We propose that a recommendation of mercy
by the jury in capital cases automatically
carry with it a life smtence. Only three
other states now have the mandatory death
penalty and we believe its retention will be
definitely harmful. Quite frequently, juries
refuse to convict for rape or first degree
murder, because, from all the circumstances,
they do not believe the defendant, although
yoss == ss» guilty, should suffer death. The result is
that verdicts are returned hardly in harmony
with evidence. Our proposal is already in
effect in respect to the crimes of burglary
- eee and arson. There is much testimony that it
has proved beneficial in such cases. We think
the law can now be broadened to include all
capital crimes.
{footnote continucd])
—--———_— ——- ee mem ee we mw
‘
Se ee
'
\
}
|
POPULAR GOVERNMENT (January 1949) (published by tl Inctitgie
O ©
concluded in Waddell’ that, as amended in 1947 and 1949 and opera
tive for nearly a quarter-century between 1949 and 1972, the
North Curolina statutes inflicting capital punishment for first
degree murder, rape, first degree burglary and arson were un-
constitutional under Furman. Three Justices of the court there-
fore would have held that the death penaltics provided by North
Carolina law on the dates of the Furman and Waddell decisions
were constitutionally unenforceable then and thenceforth until
(at the least) the enactment of new capital punishment legisla-
tion by the General Assembly. But a majority of four Justices
12?/ cont'd.
of Government, University of North Caroli:
North Caroline), p. 13. The North Cero’
-commented on the leyislative intent in’.
measures in Stete v. McMillan, 233 N.C.
(1951). .
"The language of this amendment’ stands in
- * ““bold relief. It is plain and free from 4
ze ambiguity and expresses a single, Getinite >.
‘and sensible meaning, - a meaning which under
the settled law of this State is conclusively
presumed to be the one intended by the Legis-
lature.
"It is patent that the sole purpose of the
act is to give to the jury in all cases
where a verdict of guilty of murder in the
first degree shall have been reached, the
right to recommend that the punishment for
the crime shall be imprisonment for life in
the State's prison . .. . No conditions
ioe <alibow soe are attached to, and no qualifications or
: limitations are imposed upon, the right of
the jury to so recommend. It is an unbridled
discretionary right. And it is incumbent
upon the court to so instruct the jury. In
this, the defendant has a substantive right."
ee re ee ee ee mee
mee ee ae ee
— eee ee em +
- — «
———s ———=- =
oo
-the Waddell decision) North Carolina law reverted to its pre-
-—--- —-- be returned. Upon the return of a verdict of guilty
a — sentence of death.” (State v. Waddell, 282 N.C.
‘inhabiting North Carolina’ Ss death row were sentenced to die
a new North Carolina death penalty statute on April 8, 1974.
held that the only portion of North Carolina law invalidated
by Furman was the 1949 “recommendation” provision, with the
result that (prospectively from the January 18, 1973, date of
———_—_———— oe
_«- - - -_—<— —— or oe . ~o° @. _ .- — o- -
1949 state:
"(T)he effect of the Furman decision upon
the law of North Carolina concerning the punish-
ment for rape, murder in the first degree, arson
and burglary in the first degree is this: Upon
the trial of any defendant so charged, the trial
judge may not instruct the jury that it may in its
discretion add to its verdict of guilty a recommenda-
tion that defendant be sentenced to life imprisonment. '
~ =~ The trial judge should charge on the constituent
elements of the offense set out in the bill of in-
et dictment and instruct the jury under what circum-
stances a verdict of guilty or not guilty should
of any such offense, the court must pronounce a
"431, 194 S.E.24 19, 28-29(1973).)
Under these procedures , petitioner and the other 30 persons now
-between the date of Waddell and the date of the enactment ea
13/
The question presented here is the hedeuai constitutionality
of death sentences imposed in North Carolina pursuant to the
Waddell procedures and without new legislative authorization
after Furman. Most immediately, that question is potentially
decisive of the lives of the 31 condemned inmates in the State
13/ See note 2, Supra.
- 18 - ;
[e)
posed death penalties after Furman under the purported author-
© O
It may also have direct implications for death sentencing in
Ma
four other States. Depending, of course, upon the grounds
|
!
which now has the largest death row papulation in thé Nation.
. n . *“- . _- - . — _- |
i
i
$
on which thir Court elects to consider the question, it may '
or it may not have implications -- of narrower or broacer |
scope -- for the death penalties enacted by post-Furmin
~~. - -~*- _—_—-* - ere -_—.s* * ~_-—*- =- — -_-—-*
'
legislation. — ct a ees ; |
!
- -* ~ . ~~. - ‘ - =+ee « * =
14/ The only other state appellate court that has dealt with
Furman in the fashion of Waddell is the Supreme Court of Delaware,
in State v.Dickerson, _Del.__, 298 A.2d 76) (1972). The Dickerson
opinion was announced prospectively on November 1, 1972. No !
capital convictions were returned in the State of Delaware
between that date and the dates upon which, successively, (1)
a new criminal code enacted before Furman but effective July
1, 1973, came into effect, repealing the statutory provisions
upon which Dickerson rested, and (2) the Delaware legislature
enacted a post-Furman statute effective-March 29, 1974. There
is presently pending litigation in the Delaware Supreme Court
raising the issues of the effects upon Dickerson of the super
vening codé and post-Furman enactment. State v. Smith, Del. S.C.
Mo. 52,1974. ~"“ ~~ * st Pg cect gs peek Po
|
|
!
“~*=" mya] courts” in Massachusetts and South Carolina”have im- |
ization of pre-Furman statutes and in apparent’ reliance upon i
the rationale of Waddell and Dickerson. Commonwealth v. Brown,
Clinkscales, and Johnson, Superior Ct., Suffolk Co. (Mass.),
Nos. 745C2-3-4 and 74516-17-18; State v. Speiqhts,Ct. of Gen.
Sess., Florence Co. (S.C.), No. 5053. It is also possible that
three post-Furman death sentences imposed hn Montana and Pennsyl-
vania under pre-Furman legislation rest upon the same rationale,,.
although the trial judges' reasoning in these cases more likely
stands upon other grounds. State v. Rhodes & Shields, Mont. 5S.
Ct. Nos. 12596 and 12597; Commonwealth v. Martin, Pa. Sup. Ct.,
No. 44 (March Term, 1974). All of the cases just mentioned are
presently pending in the respective Supreme Courts of the
States in which they arise. ~ ~ — ached pi fre
——— ee eee ee eee
_
———_—
A. Evasion of the Furman Decision
The narrowest issuc raised is simply whether the majority
of the North Carolina Supreme Court in Waddell read Furman
correctly and applied Furman permissibly in holding that
Furman invalidated only the 1949 “recommendation" provision
of North Carolina law, rather than the underlying death penalty.
As tortured as that holding may seem -- being the lethal equiva-
lent of a state-court holding that Brown v. Board of Education
required the closing of the public schools instead of their
desegregation -- it is not entirely unprecedented. Twice in
recent years this Court has corrected similar manipulations of
state-law severability doctrines designed to emasculate a
constitutional decision of the Court forbidding the imposition
and carrying out of impermissible death sentences. Funicello
.
v. New Jersey, 403 U.S. 948 (1971) (alternative ground); Thomas
v. Leeke, 403 U.S. 948 (1971).
These two cases involved provisions of New Jersey and
South Carolina law which allowed capitally-charged defendants
to avoid the possibility of a death sentence by pleading non
vult (in New Jersey) or guilty (in South Carolina), and thus
affronted the rulings in United States _v. Jackson, 390 U.S.
570 (1968), and Pope v. United States, 392 U.S. 651 (1968).
The South Carolina Supreme Court in Thomas recognized the
incompatibility of its statutory guilty-plea scheme with
the constitutional principle of Jackson, but held that the
result was to invalidate and sever the guilty-plea provision,
leaving the death penalty standing. The New Jersey Supreme
—-<— — — <--
O O
Court attempted to distinguish Jackson but held alternatively
that, if Jackson did invalidate New Jersey's non yult provision,
that provision rather than the death penalty would be rendered
| inoperative. In both cases, then, the state-court reaction to
. Gecisions of this Court invabidating a composite statutory death-
sentencing procedure under which unknown numbers of capital
| defendants had escaped the death penalty while others had uncon-
, stitutionally been seitenced (and many sent) to their deaths, was
to sever the escape clause, treat it as though it had never
li existed for constitutional as well as state-law purposes, and
condemn those denied its benefits to die. In both cases, this
'
)) Court declined the gambit.
.
: What a majority oe the North Carolina Supreme Court has
Gone~here,* albeit by a somewhat —different mechanism, is much
iy - -- —- = . . - — -
‘
the same thing. Dur ing a | quarter of a century between enactment’
| of the legislative "recommendation" procedure in 1949 and enact-
ment of a new post-Furman death-sentencing procedure by the North
'
; ,
Carolina legislature in 1974, countless men died and others
| guilty of identical crimes were spared death pursuant to an
| .
arbitrary sclective procedure which -- as the North Carolina
Supreme Court itself has concluded ~~ falls unmistakably within
the ban of Furman. The response of four Justices of that court
is to say essentially that, because the persons spared should
| not have been spared (under an appropriate manipulation of state
M severability theory), the fact that they were spared is to be
| @isregarded in determining whether the continued application of
the pre-Furrein North Carolina statutes authorizing capital
— << oe oe ee © ee ee ee ore
———_———_ meee
——_—— <a eee
———s
ES
punishment would be arbitrary and selective, and hence a
constitutionally cruel and unusual punishment, in the wake of
Furman. Thirty-one more persons are thus tossed into the death
column as opposed to the now closed and hence forgotten column
of the spared, upon the capital punishrent ledgers of North
Carolina since 1949. Whether the particular state-luw contri-
vance by which that calculation is accomplished makes the
deaths of these 31 persons any less selective, arbitrary, crucl
- -
a — -_-
and unusual in federal constitutional contemplation is, we
suggest, an issue that this Court should address, if its Furman
Gecision is to have the vatality and respect that the Supremacy
Clause rightly commands.
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14 '
1
'B. Th: Lawless Imposition Of Death Penalties
The second issue presented is whether the re-institution of
i
lthe death penalty which the North Carolina Supreme Court achieved
‘by amputating life from that State's life-or-death sentencing '
\
statutes is a result that can constitutionally be effected by any
\.
‘device of judicial decision wholly ungoverned and undirected by
‘}
itleqislative action. It is, of course, generally true that the fed-
eral Constitution is not concerned with how a State divides it law-
making functions between its judicial and legislative organs. But
‘that generalization cannot be permitted to sweep away the funda-
ee
1 '
|; judicial imposition of harsh criminal punishments unauthorized by .
S 22 H
|; law and in excess of the penalties provided by “the valid laws of
| se
~
: ,
|the land." Giaccio v. Pennsylvania, 382 U. S. 399, 403 (1966). |
|| ~ “Recent scholarship has underscored that the English Bill of
Rights, from_which the Eighth Amendment's prohibition of “cruel
Jana unusual punishments" was derived, was in large measure directed
. 15 :
‘toward preventing the exaction of unauthorized penalties. That
'15/ Granucci, “Nor Cruel and Unusual Punishments Inflicted:" The
Original Meaning, 57 CAL. L. REV. 839, 845-847, 852-860 (1969). It |
(3s true that Granucci also finé that the American Framers im-
li perfectly understood the English background of the cruel-and-upr
‘usual-punishment clause, and that they themselves were principally
‘concerned with the problem of intrinsically barbaric penaltics.
‘But this does not support a conclusion that the Framers meant to
‘diminish the scope of a guarantee that they believed basic to their
j traditions (see 3 ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS
|\ON THE ADOPTION OF THE FEDERAL CONSTITUTION 447 (1863)), or to re-,
,ject protections of the citizen long preserved by their English
-heritage. Indeed, as early as 1635, American settlers had “con-
‘ecived great danger . .. in regard that .. . magistrates, for
‘want of positive laws, in many cases, might proceed according to.
, their discretions," and had therefore agreed “that some men should
| be appointed to frame a body ef grounds of laws, in resemblance to.
l'a Magna Charta, which being allowed by some of the ministers and
| the general court, should be reccived for fundamental laws."
i
'
-—
WIITMONI:, COLONIAL LAWS OF MASSACIITUSETTS 1630-1686, at 5 (1889).1t
should hardly be surprising chat the cruel-and-unusual-punishment
clause, like many of the other basic guarantees of the Bill of
Rights, is woven of several strands and protects against more than
a single evil.
| Oo ©
function remains a vital office of the cruel-and-unusual punish-
i 16/
,ment clause today, although it certainly is not the exclusive
: Ly :
; focus of the clause. As this Court pointed out in Weems v.
‘United States, 217 U. S. 349, 376 (1909), the Framers were cager
to assure “that government by the people, instituted by the
Constitution, would not imitate the conduct of arbitrary monarchs.
it *.* --
i
i The conjunction of the words “crucl" and “unusual” in the Eighth
|; Amendment can hardly be regarded as accidental if one appreciates
{"
|, the relationship, within a basically popular and democratic gov-
ernmental structure, of the dangers of lawlessness, irregularity,
i as/ Te ota i
t arbitrary selectivity, and cruelty. For, in such a structure,
|
‘harsh and unsufferable criminal penalties are most likely to
spring from devices that evade the rule of law or subvert the or-
~-- +4
~-
:
| ainary protections afforded by its regularity and generality.
'
- Duc Process of Law, too, insures aguinst the imposition of
; criminal sanctions that are not decreed in strict accordance with
'the regular course of law.
| '
| “(T]he terms ‘due process of law’
| - « « come to us from the law of England,
from which country our jurisprudence is
to a great extent derived, and their re-
quirement was there designed to secure
the subject against the arbitrary action
of the Crown and place him under the pro-
tection of the law. They were deemed to
be equivalent to ‘the law of the land.‘"
Dent v. West Virginia, 129 U. S. 114,
123 (1888).
—
8 ee ee eee ee ee eee
16/ See Wheeler, Toward a Theory of Limited Punishment: An
Examination of the Eighth Amendment, 24 STAN L. REV. 838, 855-856
| (1972).
F 17/ See Weens ve United States, 217 U. S. 359 (1909); Robinson
Vv. California, 370 U. S. 660 (1962); Furman v. Georgia, 408 U. S.
238 (1972). And see note 15, supra.
| 18/ See section I1(C), pp. 28-44, infra.
las This relationship is developed in Brief for Petitioner,
| Rikens v. California, 406 U. S. 613 (1972) [No. 68-5027], pp. 13-
1) 27, 39-56.
- 24 -
lian)
r
<a See Ge- cee ewase as—e-q <-
!
~——-+-—
O O :
'
4
i" }
"The essence of [the] . . . principle of legality is limitation on
i!
j penalization by the State's officials, effected by the prescription
29/
‘and application of specific rules. So rudimentary has this
principle been to American notions of Due Process, that unauthor-
‘ 2Y/
‘ized criminal penalties have rarely been imposed in this country;
but, on the rare occasions when they have been examined by this
‘Court, the Court has treated them as self-evidently void to the
‘extent that they exceeded what was authorized by valid legislation.
Ex parte Lange, 83 U. S. 163 (1874); Ex_parte Mills, 135 U. S.
I;
| 263 (1890); In re Bonner, 151 U. S. 243 (1894). In this century, |
{;'the root principle has been most commonly cheerves in its off-
ij |
l'shoots: the vagueness doctrine as applied to penalties, Giuccio ;
'v. Pennsylvania, 382 U. S. 399 (1966); the lenity principle,
22/
‘Ladner v. United States, 358 U. S. 169 (1958); and this Court's
-_-—- ro
\20/ HALL, GENERAL PRIWCIP LES OF CRIMINAL Law 28 (2d ed. 1950).
i <—/
!
!01/ put see-Ashton v. Kentucky, 384 U. S. 195 (1966).
'22/ “(w)hen choice has to be made between two readings of what
\conduct Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress should
‘have spoken in language that is clear and definite. We should net!
‘derive criminal outlawry from some ambiguous implication. [Cita-
+tions omitted.] . . . ‘When Congress leaves to the Judiciary the
| task of imputing to Congress an undeclared will, the ambiguity
should be resolved in favor of lenity.' . . . This policy of lenity
} means that the Court will not interpret a federal criminal statutc ©
|
ee ee ee ee ee
50 as to increase the penalty that it places on an individual when
such an interpretation can be based on no more than a guess as to
What Congress intended." Id. at 177-78.
——— re ee ee
O O
‘adamant refusal to undertake either the judicial fashioning of
— — wee wece coe one
criminal punishments, United States v. Evans, 333 U. S. 483 (1948),
,or the judicial fashioning of procedures for the imposition of
criminal punishments, United States v. Jackson, 390 U. S. 570
-_—-——--
23/
(1958). Under the rule of law guaranteed by Due Process, the
, creation of criminal sanctions is, quite simply, “no part of
[judges'] . . . duties." United States v. Reese, 92 U. S. 214,
221 (1875).
The question here is whether the North Carolina Supreme
‘Court has infringed that principle, or whether the state-law
|
characlerization of what was done in Waddell as a mere applica-
oo ee oe ee ee ee ee ee
tion of severability doctrine saves palpable judicial promulgation
| 24/ !
| of the harshest penalty known to mankind from the constitutional |
| 23/ "It is one thing to fill a minor gap in a statute -- to extra~ |
| polate from its general desiym details that were inadvertentliv
‘omitted. It is quite another thing to create from whole cloth a _ ,
| complex and completely novel procedure and to thrust it upon un-
‘willing defendonts for the sole purpose of rescuing a statute from |
| 2 charge of unconstitutionality." id. at 5380.
'24/ See the opinion of Mr. Justice Sharp, dissenting in State v.
|Waddell, 262 N.C. 431, » 194 S.E.2a 19, 48 (1973):
E "This Court, which has consistently
deplored the encroachment of other
courts upon the legislative preroga-
tives during the past decade, now fol-
lows suit and sets its own example of
judicial overreaching by changing the
penalty for rape, first degree murder,
arson and first degree burglary ‘from
death or life imprisonment in the
discretion of the jury to mandatory
ti death.'"
I _tinniniein
—-
bee
~
~
.
—)
ee
f O e)
7
1!
}
charge of lawlessness. The question is not, of course, whether
‘four or three Justices of the North Carolina Supreme Cart more
\
mearly guessed what the North Carolina legislature might have
wanted in the wake of Furman, in light of the fact that its last
' pronouncement on the subject -- a quarter-century old -- was long
_ sealed together with the irremediable fates of those who had been
chosen to live or to dic under the discretionary sentencing regime
25/
for which it then unmistakably opted. kather the question is
whether judicial fiat, with nothing more than the profession of
H
i!
| method of providing by law for the punishment of crimes, can with-
‘stand seratiny under federal constitutional guarantces designed as
!
| Sami tations upon the lawless exaction of overbearing and unauthor-
‘ized criminal penaltics.
——— eee ee
’
\25/ State v. Waddell, 262 N.C. 431, ___, 194 S.E. 24 19, 26
. ’
Ries kind of guesswork to connect it with the regular and accepted -
~———— oee eeen e
<—+ Senne He se eee ee
i
| © ©
C. The Perpetuation of Arbitrary Discretion in the
TD pomp ng:
The third issue presented is whether the capital trial
—_————
procedure approved for North Carolina by the Waddell decision
|<: violates Furman's prohibition of arbitrary selectivity in the
administration of the death penalty. Although the prevailing
Ne opinions in Furmon differ somewhat regarding the qvestions leic
unanswered by the Furman holding, they all condenm at least any
i" . systom of capital punishment in which some persons are chosen to
ii live and others identically situated are consigned to dic by
| 26/
‘ ° jrregular and erratic selective processes. The form of those
| ~.26/. ~The concurring. Furman opinions of Mr. Justice Brennan (408
) U.S. at 257-306) and Mr. Justice Marshall (408 U.S. at 314-374)
to ghared the view that the death penolty is unconstitutional per
‘| ge, regardless of the presence or absence of discretion in the
' precedural system whereby it is applied.
| Mr. Justice Douglas did not reach the question "[w]) hether
' a mandatory death penalty would... be constitutional,” 408
U.S. at 257, but held the death sentences under review in Furmin
f and companion cases unconstitutional under the Eighth and four-
if teenth Amendments because they were the result of a procedure
which discriminated against certain defendants upon the basis
| of “race, religion, wealth, social position [and] class” and
which “[gave] room for the play of such prejudices.” 408 U.S.
at 242.
‘
!
Mr. Justice Stewart found it “unnecessary to reach the
| ultimate question [whether "the infliction of the death penalty
: is constitutiopally impermissible in all circumstances"), 408
; U.S. at 306, since he found that the death sentences under re-
1 view were "wantonly and... freakishly imposed," 408 U.S. at
2: 310, and therefore in violation of the Eighth and Fourteenth
Amendnents. “[O} f all the people convicted of rapes and murders
ioe e 2 » Many just as reprehensible as these, the petitioners are,
I among a capriciously sclected random handful upon whom the
“ gentence of death has in fact been imposed." 408 U.S. at 309-
i 310 (footnote omitted).
i! Mr. Juatice White declined to consider the question of
whether “the death penalty is unconstitutional per se,” 408 U.S.
at 311, and held only that capital punishment was unconstituticn-
\ gl when it “is exacted with great infrequency even for the most
atrocious crimes and... [when] there is no meaningful bast.
for distinquiching the fe. cases in which it is imposed from the |
many cases in which it is not.” 408 U.S. at 313.
fi = ¢4
wbien tom mtr heey eae hs be 6 tee 0 Mee AG SLE Oh ORAL SAE, AB OTR AO OO * ra ed le
ee ee ee ee ee OR Se See ee one
; processes can hardly be thought constitutionally dispositive.
=
See Commonwealth v. A Juvenile, 1973 Mass. Adv. Sh. 1199,. 300
2/
N.E.2d 434 (1973). What is important is their result: a
co aeessee—eeese aoc © cose oe
Jawless and capricious dispensation of life and death, in
which death sentences are "freakishly imposed.” Furman v.
Georgia, supra, at 310 (Mr. Justice Stewart, concurring).
In considering whether the Waddell procedures comply with
.
“3
a
is
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ad
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ct
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9
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e
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oa
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-
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—
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displaced the focus, lowered the visibility, diffused the
<a ee ee ee ee ee eee eee
responsibility, and thereby increased the predictable arbitrari-
'
| ness and discrimination of persisting discretionary processes
| 28/
for the administration of the death penalty, this Court will
ee A ee
| 27/ In this case, the Supreme Judicial Court of Massachusetts
ruled that Furman invalidated a death sentence under a “mandatory”
|; death penalty statute, if arbitrary procedures made it possible
| for some defendants to escape being subjected to the extreme
| punishment. The Court held that when a juvenile could be adjud-
|} dicated cither as an adult for rape-murder (in which case, the
death sentence was “mandatory” under Mass. Gen. Laws Ann. c.265
§2) or as a juvenile (in which case no death sentence could be
imposed), a death sentence imposed pursuant to the adult "“manda-
tory" statute could not be affirmed, since Furman invalidated
'
<< oases oe =
i “discretionary imposition of the death sentence,” 300 N.E. 2d
| at 442 (emphasis in original), regardless of where in the process
, this discretion was lodged. |
purportedly “mandatory” death-sentencing system is likely to be ,
i influenced by impermissible considerations to at least as great
an extent as the visible discretion that Furman found unconsti-
| «tutional. North Carolina's experience with a “mandatory” statute
' prior to 1949 reflects this point. Between 1910 and 1949, 757%
' of all persons received under sentence of death were non-white;
between 1950 and 1972, 63% of those so received were non-white.
Similarly, 80% of persons executed under the pre-1949 “mandatory”
system were non-white; 73% of executions under the post-1949
“discretionary” system were of non-whites. (Data compiled from
BUMRE, A BRIEF HISTORY OF CAPITAL PUNISHMENT IN NORTH CAROLII.4,
Tables 2? and 3, (North Carolina Office of Corrections, September
| 28/ The discretion which is concealed but inevitable in a
'
!
want to consider the following characteristics, among others,
of North Carolina law and practice:
_- - —
26/ cont'd.
1973)}. It appears that under the “mindatory"system created
by the Waddell decision similar forces we at work: as of June
1, 1974, 24 of the 34 defendants condemned to die for crimes
comeitted between January 18, 1973 (the date of Waddell) and
April 8, 1974 (the effective date of the new North Carolina
capital punishment statute), or 71%, are non-white, approximately
the percentage of those condemned to die who were non-white under
the pre-Furman "mandatory" system. Death sentences have been
affirmed or imposed under the Viaddel} procedures in the following
cases:
ce a ee ce Ae ass tt te tt LL LLL LO ee
: State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974);
State v. _ Crowder, 285 N.C. 42, 203 S.E.2a 38 (1974); State v.
la
Dillara, 285 N.C. 72, 203 S.E.2a 6 (1974); State v. Noell, 284
N.C. 670, 202 S.E.2a 750 (1974); State v. Poole, Moore County
Superior Ct., No. 73-Cr-2710 (August 17, 1973), rev'd.__ N.C.
__ ,. .93 SE. 24.786 (April 10, 1974); State v. Monk, New
Uanover County Superior Ct., No. °73-Cr-6476 (August 24, 1973);
State_v. Henderson, 285 N.C. 1, 203 S.E. 2a 10 (1974); State v.
Britt, Robeson County Superior Ct., No. 73-Cr-6567 (September '
G, 1973), rev'd ___ N.C. ’ S.E.2a@ _~_, N.C. Sup. Ct. No. |
36 (Robeson) (May 15, 1974); State v. Spicer, New Hanover County
Superior Ct., oy 73-Cr-8034 (September 12, 1973), rev'd ___
B.6. 2 -E.2a __, N.C. Sup. Ct. No. 25 (Hanover) (May 15,
1974); State. v. Ward, , Edgecombe County Superior Ct., No. 73-
Cr-6706 (September 19, 1973); State v. Fowler, _. N.C. __.
203 S.E.2d 803 (1974); State v. Honeycutt, 285 N.C. 174, 203
S.B.2d 844 (1974); State v. v. Bell, Robeson County Superior Ct.,
No. 73-Cr-12351 (October 18, 1972); State v. Sparks, Guilford
County Superior Ct., No. 73-Cr-19776 (November 1, 1973); State
v. Anthony Carey, Mecklenburg County Superior Ct., No. 73-Cr-
46179 (Novenber 6, 1973); State v. White, Alamance County
Superior Ct., No. 73-Cr-12672 (December 6, 1973); State v. Prown,
Edgecombe County Superior Ct., No. 72-Cr-7238 (December 9, 1°73);
State v. Hines, Edgecombe County Superior Ct., No. 73-Cr-7239
(pecember 9, 1973); State v. Walston, Fdgecombe County Superior
Ct., No. 73-Cr-7378 (December 9, 1973); State v. Albert Carey,
Mecklenburg County Superior Ct., No. 73-Cr-0150 (December ll,
1973); Stote_v. Vick, Beaufort County Superior Ct., No. 73-Cr-
5687 (December 12, 1973); State _v. Lampkins, Forsyth County
Superior Ct., No. 73-Cr-43023 (January 19, 1974); State v. Prui'*,
Cumberland County Superior Ct., Nos. 73-Cr-35545, 35546 and 35544
(January 29, 1974); State v. Williams, Wake County Superior ClLl., ,
No. 73-Cr-3252]) (January 3), 1974); State v. Woods, Catawba
rat
County Superior Ct., Nos. 73-Cr-20546 and 20545 (January 28, L9Os4)3
y i y
|
|
State v. Potterson, Porsyth County Superior Ct., No. 73-Cr-- 22457
(Pebruory 5, 1974); State v. McCall, Transylvania County Super.
Cleghorn. 73-Cr-1027R and hes (iebrucry %, 1974); State v. Avery.
pa 4 “. d . . mae Rare ary . , oy «
-- he ‘ ‘
1. Prorecutorial Discretion.
In North Carolina, the Solicitor is charged with the duty
to “prepare the trial dockets [and} prosecute in the name of
the State all criminal actions requiring prosecution in the
superior and district courts of his district," N.C. Gen. Stat.
§7A-61 (1971 Cum. Supp.). Me is thereby shines broad and
essentially unreviewable sabia tian to initiate and terminate
prosecutions, State v. lecsch, 237 N.C. 611, 75 S.E.2d 654, 656
(1953), including not only absolute diseretion whether and what
to charge, but also absolute discretion to bring an indicted
defendant to trial upon lesser charges than those set forth in
the indictment, State v. Allen, 279 N.C. 115, 181 S.E.2d 452
—
(1971); and see State v. Roy, 233 N.C. 558, 64 S.E.2d 640
(1951). The North Carolina courts steadfastly refuse to review
prosecutorial decisions. The leading case is State v. Casey,
159 N.C. 472, 74 S.E. 625 (1912), where an appellant, prosecuted
and convicted for second degree rarder by poisoning, argued that
28/ cont'd.
State v. McLaughlin,Robeson County Superior Ct., Nos. 73-Cr-]8024
74-Cr-228, 74-Cr-229, 74-Cr-230, 74-Cr-231, 74-Cr-232 (February
28, 1974); State v. Burns, Onslow County Superior Ct., No. 74-
Cr-1012 (March 1, 1974);
— eee
oe
—— ee a ee ee eens 8m ee ee
A TT
O ©
there was no evidence of this crime; that she wus either guilty
of first decree murder or not guilty of any offense. The Court
rejected this contention, commenting that “if the solicitor
erred, it is an error in favor of the prisoner, of which she
cannot justly complain.” 74 S.F. at 625. And the majority
opinion in State v. Jarrette, 284 N.C, 625, 202 S.E.2d 721, 742
(1974), flatly rejected the contention that either the Eighth
or the Fourteenth Amendment required any limitation of the
unfettered discretion of the Solicitor: “the Constitution of
the United States does not require a state, in the enforcement
of its criminal laws, so to hedge its prosecuting attorney about
with 'guidelines' that he becomes a mere automaton, acting on
the impulse of a computer and treating all persons accused of
criminal conduct exactly alike."
Without any guidance whatsoever, then, a Solicitor is free
to make the decision whether an indictment will be sought for
first or second degree murder, for rape or assault to rape. He
may thus “without violeting [his] trust or any statutory policy
. . .« refuse to [seek] the death penalty no matter what the
circumstances of the crime." Furman _v. Georgia, supra, at 314
(Mr. Justice White concurring). This prosecutorial discretion
doubtless accounts in considerable part for the striking fact,
29/
for example, that there have been only two convictions for
29/ State _v. Poole, Moore County Superior Ct., No. 73-Cr-2710
(Avaust 17, 1973), rev'd _ _— N.C. ___, ~203 S.F.2d 786 (April 10,
1974). State v. Kenderson, Alamance County Superior Ct.,
No. 73-Cr-777) (Septenber 5, 1973), aff'd 285 N.C. 1, 203 5.F.2¢
IC (March 13, 1974), petition for cert. filed, June, 1974
(No. 73- ). The petitioner in Henderson was also
convicted and sentenced to dic tor the'‘crime of rape.
i
first degree burglary during the past year of Waddell's imple-
----
rentetion in a State where there were about forty convictions
. 30/
annually for this crime in the recent past, and where 39,210
. 3Y/
“burglaries and houscbreakings" were reported in 1972. The
conclusion is inescapable that Solicitors ie ela not re-
garded first degree burglary as a crime deserving death, and
have not initiated first degree burglary prosecutions despite
Clear evidence of this crime.
A recent death penalty case, where the conviction and
sentence were vacated and a new trial ordered aon of ahi
cedural error, illustrates the Solicitor's charging discretion
under the regime of Waddell. In State v. Spicer,N.C. Sup. Ct.,
No. 25 (New Hanover), decided May 15, 1974, two persons were
trial and convicted for murder during the course of an armed
32/ 7 caeccan te iohaieemak aces
robbery. A third person, one Brailford, had helped plan the
30/ In 1955, the North Carolina Department of Justice ceased
keeping separate statistics for persons convicted of First
Degree Burglary and Second Degree Burglary. The Biennia? Report
of the Attorney Geueral,Vol. 32 at 515, reveals that in 1952,
there were 47 convictions for First Degree Burglary (with 15
“Other Dispositions” of First Degree Burglary charges); in 1953,
there were 33 convictions for this crime, with 10 “Other Disposi-
tions,” ibid.: in 1954, there were 35 convictions and 26 "OLlher
Dispositions,”"ibid., Vol. 33 at 377.
3Y YeEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF
JUSTICE, CRIME IN THE UNITED STATS 1972 (Aug. 1973) at 74. The
- FRI Uniform Crime Report statistics reflect reported crimes, not
| convictions, and the reported “burqlaries and housebreakings” are
not necessarily equivalent to the total number of statutory First.
Degree Lurglaries which occurred in the State during 1972.
32/ The conviction of Isaac Monk, also found aquilty of first
degree murder end sentenced to death in this incident, is pending
on apmol in the North Carolina Supreme Court. Monk v. State,
New Hinover County Superior Ct., No. 73-Cr-6476 (August 24, 1°73)
—-++ —
ss SS See ee we ---2ooome eo
.) ee ee ee ee ee
‘one ata
robbery and was to share in its proceeds, but he was not charged
in the murder although his testimony “permitted the jury to mike
a finding that he was an accomplice cither in the robbery or the
murder, or both." Jd., slip op. at @. The Court thus described
Brailford's role in the crime:
"[T) he State's witness Brailford made the
admission to the officers, ‘I stated that I
initiated the proposition concerning the hit
of Christian Brothers Poultry. It was my idea.’
He again stated that he expected his cut... .
The evidence discloses that the witness Brailford
originated the plan to rob his employer and ex-
plained the setup at the plant.”
— oe eee ee oe:
ae -
—_—_ ee ee
2. Pica Bargaining.
Under the Waddell procedures, there is no limit on the
power of a Solicitor to accept a plea of guilty to a lesser
included offense by a defendant charged with a capital crime,
or te nol pros a capital indictment entirely. It is unclear
how much plea bargaining in capital cases occurs’ in North
33/
Carolina, but the critical point is that it is utterly unregu-
lated: the discretion of a Solicitor to accept a plea toa
lesser offense in a capital case being quite as untrammelled as
the freedom of a jury to recommend mercy in a pre-Waddell capital
case. One instance of that discretion is State v. Wiggins,
Bertie County Superior Ct., No. 73-cr-2383, in which a 14 year
old aefendant was indicted for the rape ef a nine year old rirl,
a potentially- capital offense. On February 19, 1974, the defend-
ant was permitted to enter a guilty plca to charges of assault
with intent to rape and of assault with intent to kill, and
received sentences of fifteen years and five years.
33/ Guilt, pleas are said to account for up to 90% of all
Criminal convictions in the United States. PREUSIDENT'S
COMMISSION ON LAW ENPORCEMENT AND ADMINISTRATION OF JUSTICL,
TASK FORCE REPORT: THE COURTS 9 (1967).
ee RE ee
-
Such cases doubtless reflect the long-recoqnized function
of plea bargaining under a purportedly “mandatory” sentencing
statute: it “provides the opportunity to individualize justice:
. « « « Certain mandatery provisions of the statutes which in
a particular situation seem unduly harsh may be avoided and
punishment selected which is best suited to the defendant who
34
has already acknowledged his guilt."
34/ Ueath, “Plea Bargaining -- Justice Off the Record,"
9 WASHBURN U.L. REV. 420, 455 (1970).
3. Jury Discretion
Even when a North Carolina jury has no admitted sentencing
discretion, it still] retains power to spare a capital defendant's
life by finding him guilty of a lesser included offense. If i
there is any evidence to support the finding of such an offense,
a defendant may demand a lesser-included-offense instruction as
35/
“
a matter of right. N.C. Gen. Stat. §15-170 provides that:
“[ujpon the trial of any indictment ‘the
prisoner may be convicted of the crime
charged therein or of a less degree of
the same crime, or of any attempt to
commit the crime so characd, or of an
attempt to commit a less degree of the
same crime ...- e”
ae
i
" 25/ "Tf . . there is any evidence, or if any inference can be |
i fairly deduced therefrom, tending to show one of the iower grades
of murder, itis then the duty of the trial court under appropriate
| dnstructions to submit that view to the jury." State v. Knight, ,
| 264 N.C. 364, 391, 103 S.E.2d 452, 456 (1958) (quoting State ve |
| Spivey, IRN. C. 676, 686, 65 S.E. 995, 999 (1909)); State v.
| Childress, 228 N.C. 208, 45 S.E.24d 42 (1947). If there is no '
| evidence at all that a defendant was guilty of a lesser included
' offense, a defendant may not be able to demand such a charge as
' a matter of right, State v. Hicks, 241 N.C. 156, 84 S.E.2d 545,
| 547 (1954); State _v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971);,
State v. Roseran, 279 N.C. 573, 184 S.E.2a 289 (1971); State v. |!
Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Brown,
227 N.C. 363, 42 S.E.2d 402, 404 (1947); State v. Cox, 201 N.C.
357, 160 S.E. 358, 360 (1931), and a trial judge has diserction
to charge that a defendant is cither guilty of the capital crine
or not guilty of any crime. State v. Mrys, 225 N.C. 486, 35 S.E.2d
| 494 (1945); State v. Seales, 242 N.C. 400, 87 S.E.2d 916 (1955); |
| State v. Moirston, 200 N.C. 220, 185 S.E.2d 633, 642-643 (1972);
' State v. Beard, 207 N.C. 673, 178 S.E. 242 (1935); State ov.
Satterfield, 207 N.C. J18, 176 S.E. 466 (1934). However, if such
a charge is given and if a defendant is convicted of the lesser ;
included offense, the cenviction will nevertheless be affirmed
| on appeal, even if it appears irrational on the facts of the
| case. See State v. Mitthews, 142 N.C. 621, 55 S.E. 342 (1996),
and discussion, inir.:.
| And N.C. Gen. Stat. § 15-169 provides that:
any felony whatsoever, when the crime charged
includes en assault agninst the person, it is
Jawful for the jury to acquit of the felony and
to find @ verdict of guilty of assault against
the persom indicted, if the evidence warrants
i such a finding ....” |
H
| o n . -
rf “fo}]n the trial of any person for rape, or
ij
'
The right to a lesser-included-offense charged is considered
so iwportant in North Carolina that its omission is held to be |
‘reversible error even when the defendant fails to reguest such
o-oo
| 2 charge. State v. Wagoner, 249 N.C. 637, 107 S.E.2d 63 (1959);
ere ee
State _v. Ricra, 276 N.C. 361, 172 S.E.2d 535 (1970). See State
v. Moore, 275 N.C. 198, 166 S.E.2d 652, 661 (1969); State v.
DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130, 132 (1943). The
‘Supreme Court of North Carolina has frequently reversed convic-
-36/
tions for capital offenses because the trial court failed
37/
to give a charge on second degree murder, voluntary
|
!
|
:
|
~
36/ The rule in North Carolina is that “the Sudan" s failure to
ese the question of defendant's guilt of the lesser included
pewsgoree is not cured by a verdict convicting the @eferndant of
the highest offense charged in the bill," State v. Joe Freeman,
(275 N.C. 662, 170 S.E.2d 461, 465 (1969).
|37/ Stute_v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928); State
iv. Perry, 209 N.C. 604, 184 S.E. 545 (1936); State v. Gause,
,227 N.C. 26, 40 S.E.2d 463 (1946); State v. Knight, 264 N.C, 384,
103 S.F.2d 45? (1958). When the State attempts to prove “Will- |
\ful, deliberate and premeditated killing,” N.C. Gen. Stat. § 34-17,
iwhich did not occur during the course of a fclony and was not
committed hy poison or lying in wait, the jury may decline to
\return a first degree verdict and conyict instead for second
| degree murder, since “the jury before whom the offender is tried
'shall determine in their verdict whether the crime is murder in
ithe first deqree or secon? degree,” N.C. Gen. Stat. § 15-172, and
ginee “the jury alone may determine whether an intentional kill-
jing has been establisi. where no judicial admission of the fact
is made by the defendan State v. Todd, 264 N.C. 524, 529,
(142 S.E.2d 154, 158 (1965), See also, State _v. Phillips, 264
UN.C. 508, 142 S.BE.2d 337 (1965); State v. Drake, 8 N.C. App. 214,
(A74 S.E.2d 132 (1970).
——_— +=
-
eee ee eee -
2 eee oe eee a oe oe
= >
EE A
38/ 39/
manslaughter, or involuntary manslaughter in first degree
murder cases, or because it failed to charge on assault with
40/
intent to rape in rape cases.
Moreover, a jury may be charged on a lesser includec offense
where there is no evidence to support such a charge, and a con-
; 4i/
viction for the lesser offense will be sustained on appeal.
38/ State _v. Merrick, 171 N.C. 788, 88 S.E. 50] (1916); State
v. Robinson, 188 N.C. 784, 125 S.E, 617 (1924); State v.
Manning, 25] N.C. 1, 110 S.E.2d 474 (1959). Cf. State v. Joe
Freeman, 275 N.C. 662, 170 S.F.2d 461 (1969).
39/ State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Cf.
State v. Denny Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972);
State v. Joc Freeman, 275 N.C. 662, 170 S.E.2d 461, 465 (1969).
40/ State v. Williams, 185 N.C. 685, 116 S.F. 736 (1923). See
also, State v. Green, 246 N.C. 717, 100 S.E.2d 52 (1957); State
v. Roy, 233 N.C. 558, 64 S.E.2d 840 (1951); State v. Jones, 249
N.C. 134, 105 S.E.2d 513 (1958); State v. Webb, 20 N.C. App.
199, 200 S.E.2d 840 (1973). Cf. State v. Bryant, 280 N.C. 551,
187 S.E.2d 111, 116-118 (1972) (Bobbitt, CJ, dissenting). "An
assault with intent to commit rape is a lesser degree of the
felony and crime of rape. It is well settled with us that an
indictment for rape includes an assault with intent to commit
rape." State v. Green, 246 N.C. 717, 100 S.E.2d 52, 54 (1957).
41/ The Supreme Court of North Carolina has occasionally dis-
approved of this practice, State v. Bryant, 280 N.C. 551,
187 S.E.2d 111, 114 (1972); State v. Allen, 279 N.C. 115, 18]
a eee a
———
——<—s-«
S.E.2d 453, 457 (1971); State v. Bentley, 223 N.C. 563, 27 S.E.2d.
738, 741 (1943), but it has never reversed a conviction of a
lesser included offense on the ground that there was no evidence
to justify submitting such an offense to the jury.
ee ee
(+ Hall, 214 N.C. 639, 200 S.E. 375 (1939).
State v. Robertson, 210 N.C. 266, 186 S.E. 247 (1936); State v.
Benton, 276 N.C. 641, 174 S.E.2d 793 (1970); State v. Bryson,
—-———— -_—
. ee te eet ee ee
173 N.C. 803, 92 S.F. 698 (1917). In State _v. Matthews, 142 N.C.
621, 55 S.E. 342 (1906), for example, the appellant, who had been
convicted of second degree murder, Ccluimed that an indictment i
for murder by poisoning necessarily inplicd that -he was either
'
guilty of first degree murdcr or innocent of any crime. The
i
'
Court affirmed, stating that such a conviction was within the
power of the jury, 55 S.E. at 343, and that “whatever the reason-'
ing of the jury, the prisoner has no cause to complain that he
was not convicted of the higher offense." 55 S.E. at 344. In
State v. Quick, 150 N.C. 820, 64 S.E. 168, 170 (1909), the
oe
Court held that the giving of a manslaughter charge in a first {
degree murder case had been proper:
"Suppose the court erroneously submitted to
the jury a view of the case not supported
by evidence whereby the jury were permitted,
if they saw fit, to convict of manslaughter
instead of murder, what right has the defendant
to complain? It is an error prejudicial to the
state, and not to him." 42/
42/ “An error on the side of mercy is not reversible . .. «
State v. Fowler, 151 N.C, 731, 66 S.F. 567 (1909). Accord:
State v. Rowe, 155 N.C. 436, 7) S.E. 332, 337 (1911). See also
State v. Ratcliff, 199 N.C. 9, 153 S.E. 605, 606 (1930); State
. Johnson, 218 N.C. 604, 12 S.E.2d 278, 288 (1940); State v.
—-_——= {
Vestal, 283 N.C. 249, 195 S.E.2d 297, 299-300 (1973); State v.
»
7_——-_ => a oo
a
ee
In State _v. Rentley, 223 N.C. 563, 27 S.E.2d 738, 740 (1943), the
Court declared:
"If we are to understand the appellant to base
his denand for discharge merely on the fact that
ihe jury by an act of grace has found him guilty
of a minor offense, of which there is no evidence,
instead of the more serious offense charged, this
is to look a gift horse in the mouth; more especially,
since the conclusion that there is no evidence must
be reached by conceding that all the evidence, in-
cluding the admission of the defendant, points to
a graver crime. Such verdicts occur now and then
. « « {and} [wJhen they do, although illogical or
even incongrvous, since they are favorable to the
accused, it is settled law that they will not be
disturbed.”
To insure that the jury is aware of the consequences of its
decision in a capital case, the Supreme Court of North Carolina
recently ruled that if "the jury is confused or uncertain as
te vhplion ie ot oes permissive verdicts would result ina
mandatory death sentence . . . sufficient compelling reason
exists to justify . . . informing the jury of the consequences
of their possible verdicts." State v. Britt, N.C.Sup.Ct., No.
36 (Robeson), decided May 15, 1974, [Appendix D, infra ] slip
op. at 16, The Court also ruled that “[c)ounsel may, in his
argument to the jury, in any cse, read or state to the jury a
statute or other rule of law relevant to such case, including
the statutory provision fixing the punishment for the offense
charged . . . {He may] in his arguvent to the jury ... -«
inform or remind the jury that the death penalty must be im-
posed in the event it should return a verdict of guilty upon
a capital charge." Id. at 17-18. This holding implements the
power of the jury to avoid imposing the death penalty in a
ee meee eee
—eme es ~~ wen eee 2 ee ee eee ee oe
. =
+.
syupathetic case, cither by convicting of a lesser included
43/
offense or by returning a verdict of not guilty. Thus, under
North Carolina law, a double level of discretion may affect the
jury's choice of a life or Geath verdict in a case where al] the
evidence points to quilt of a capital offense or of nothing: the
trial judge has @Giscretion to submit such lesser offenses, and
the jury has discretion to commit for them,
—_— -
43/ Wicker, "Christmas on the New Death Row," New York Times,
Dec. 25, 1973, p. 18, col. 1:
“Raleigh, N.C. Dec. 24 . . . In January, 1973,
the North Carolina Supreme Court ruled that
the Federal Supreme Court had made it unconsti-
tutional for a jury to recommend mercy, hence
life imprisomaent rather then death, for an
“arbitrary number of those convicted of first-
degree wurder, arson, rape or burglary; .. .
Around here, some are still heaving sighs of
relief at the case of a black man charged with
breaking into a hovse and stealing about $10
worth of food. The house was occupied, the
break-in occurred at night, so the offense
was first-decree burglary. Perhaps influenced
by the only alternative available, the jury
acquitted him, thus sparing him Christmas on
the new Death Row but raising the question how
mandatory death sentences can be considered an
improvement on cruel and unusual punishment,"
—-
© C
4. Executive Clemency.
The North Carolina Constitution provides that:
[fT})he Governor may grant reprieves, Cc ommutations,
and pardons, after conviction, for all offenses
(cxcept in cases of impeachment), upon such
corditions as he may think proper, subject to
requlations prescribed by law relative to the
manner of applying for pardons. Article III,
G5 (G6).
Governors of the Slate have, by the exercise of this cicmency
prisoners. Between 1903 and 1963, the sentences of two hundred
thirty-five (235) of three hundred fifty-cight (358) condemned
prisoners were commuted. The chief executive has thereby commuted:
65.6 pereent of the death sentences imposed in the State over a
~~ cma e+ oo ow:
Sixty year period.
The Governor's discretion to spare the lives of condemned
felons is absolute. The Constitution ‘reserves to the legislature
the right to prescribe the “manner of applying for pardons" but
leaves the grant or denial subject only to “such conditions as
[the Governor) may think proper." Indeed, the Court of Appeals
has said with regard to the analogous executive power to grant
paroles (a power originally conferred upon the Governor by
Article III) that:
{iJn a matter which historically, in this
State at least, has been considered a function
of the executive branch and which by its nature
involves a large number of intangibles,
guide lines are neither necessary nor desirable.
Jernigan v. State, 10 N.C. App. 562, 179 S.E.2da
788, 792 (1971).
— <a =<
i
' Under a procedural system in which the death penalty is
i '
' purportedly “mandatory," the clemency authority has comnonly
' functioned as the aspect of the criminal jutice system that |
responds to “mitigating factors” -- factors which, while in-
|
\ sufficient to justify a verdict of not guilty, are neverthelcss ,
'
| viewed by society as meriting some mercy in the exaction of
' 44/
; -“- '
' punishinent. hh 1957 study of the imposition of capital punish~ |
i
; eae
, ment in North Carolina noted a pronounced decline in the nunber |
1 , }
f of commutations or death sentences after the 1947 and 1949
eR eee BE a |
statutory amendments giving juries the option of imposing life ,
|| sentences for the four crimes which had theretofore carricd
| 45/
mandatory death penalties. By withdrawing that option from
juries in 1973, the Waddell decision obviously displaced, but
equally obviously did not reduce, the operation of discretionary
ee
selectivity in North Carolina's death-sentencing practices.
!
|
\ 44/ Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.RIV.
) 136, 165-166 (1964).
| 45/ ‘Johnson, Selective Factors in Capital Punishment, 36 SOCIAL |
FORCES, 165, 166-7 (1957). Behre notcs that while 64 percent of
condemned persons escaped execution between 1910 and 1948, the
percentage of those cscaping exccution dropped to 38 percent for
the period between 1949 and 1962. Undoubtedly, a large propor-
tion of condemned persons who avoided the death penalty did '
s0 by commutation. BEMRE, A BRIEF HISTORY OF CAPITAL PUNISHMUNT
IN NORTI! CAROLINA, Tables 2 and 3. (North Carolina Office of
Corrections, September 1973).
ee eee
QO O
Dp. The Inconsintency Of The Death Penalty With Contemporary
Standaraus of Decency
Eighth Amcnér. nt standards are not static, and the prohibi-
-— —<—
tiomof the crucl-and-unusual punishment clause are not “confine[¢]
. « « to such penalties and punishments as were inflicted by the
. Stuarts." Weemn v. United States, 217 U. S. 349, 372 (1910). In-
“stead, the clause is “progressive, and is not fastened to the
obsolete but may acuuire meaning as public opinion becomes en-
i
‘
v6
'
|
eee ee oe ee eee
- -_—- _—-
— ee ee ee EE ee er ne
lightened by a humane justice," Id. at 378, and informed by “the
‘light of contemporary human knowledge." Robinson v. California,
370 U. S. 660, 666 (1962). There was no disagreement among the
‘Justices who reached the issue in Fumsan v. Georgia that this ecvo-
‘lutionary standard authorized the periodic Eighth Amendment re-
fevaluation of hoary criminal punishments. See Furman v. Georgia,
Ss
“~*
r
5
t, at 242 (opinion of Mr. Justice Douglas); at 264-269 (opin-
jion of Mr. Justice brennan); at 325-328 (opinion of Mr. Justice
|Marshall); at 383 (opinion of Mr. Chicf Justice Burger); at 409
(opinion of Mr. Justice Blackmun); at 429 (opinion of Mr. Justice
‘Powell). Such a re-evaluation of the penalty of death is partic-
ularly appropriate at this historical juncture, for three princi-
pal reasons:
st: The cruclty and inutility of the death penalty are
japparent in an age when “contemporary human knowledge," draws
upon advanced medical science and sciences of human behavior. We
are no longer so uninformed about the complex sources and motiva-
‘tions of anti-social behavior as to maintain the simplistic and
‘beyuiling notion that the threat of death deters serious crime;
nor can we ignore today the the truism that government remains
46/
“the potent, the omnipresent teacher" even wher. it chooses to
46/7 Olnstead ve. United States, 277 U. S. 438, 485 (1928) Justice
brandecais, dissenting).
+e oe
O © |
' teach the overriding lesson of capital punishment “‘that a man's |
41/
_ life ceases to be sacred when it is thought useful to kill him.’"
' '
While we have not abandoned the essential moral and social] propo-
sition that the citizen is responsible to society for his or her
conduct, new knowledge of the subtle springs of human behavior hur
' led to a reconsideration of the justifications for retributive
: 4n/
punishments, a partial diminution of retributive sentiment, and
- : '
a guarded, byt increased optimism about the possibilitics of
'
rehabilitation. At the same time, socicty has developed sophis-
| ticuted means for safely isolating dangerous criminal offenders.
. _.. To the extent that contemporary human knowledge casts doubt
on the utility of capital punishment in achieving the legitimate
i
!
| aims of criminal sunctions, it casts doubt’ on the legitimacy of
|
‘
capital punishwent in Eighth Amendment terms. If it cannot be
--—
established that the death penalty is a superior deterrent, and if;
-it cannot be shown that.the death penalty is necessary to isolate i
Gangerous offenders, reinforce moral standards of (if retribution
47/ Camus, Reflections on the Guillotine, in CAMUS, RESISTANCE,
REBELLION AND DEATH 173, 229 (1961).
|; 4B/ “. . . & cloud of doubt has settled over the keystone of
. ‘retributive’ theory. Its advocates can no longer speak with
, the old confidence that statements of the form ‘This man who has
broken a law, could have kept it’ had a univocal or aqreed mean-
ing; or where scepticism does not attach to the meaning of this
|! form of statement, it has shaken the coniidence thut we are gen-
r @rally able to distinguish the cases where a statement of this
«1 form is true from those where it is not." H.L.A. Hart,
PUNISIMENT AND RESPONSIBILITY (1908), at 1. :
——
LE TT
© ©
'
! ‘
ij
'is considered a legitimate aim of penal sanctions) a civilized j
secicty's measure of justice, then it is surely impossible for any
|
|. governmental organ to justify the decision made below by a single
vote of the North Curolina Supreme Court; to “extinguish, after
iy }
untellable suffering, the most mysterious and wonderful thing we
43/
know, hunan life." Mr. Justice White wrote in Furman that:
j '
"Tne imposition and execution of |
t the death penalty are obviously cruel |
tt in the dictionary sense. But the pen-
; alty has not been considered cruel and
rt unusual punishment in the constitutional
i} sense because it was thought justificd
i; ° by the social ends it was Geemed to serve.
At the moment it ceases realistically to
further these purposes, however, the
| emerging question is whether its imposi-
tion in such circumstances would violate
the Eighth Amendment." 408 U. S. at 312.
At a time when the death penalty is and inevitably will continuc
, to be rarely imposed, and when empiricel data fail to substantiate
Oe eee ee ee rere
that. its imposition is “of substantial service to criminal justice"
(id. at 313) in any case, the question is squarely presented wheth-
‘ i
er death as a punishnent for crime is consistent with any morality |
that our society can forthrightly accept.
today signifies repudiation of its regular use. The Court in
'
\|Furman confronted en accepted system which sent an exceedingly
50/7
!'small number of persons--who were, for the most part, members of
li
49’ Black,Crisis in Capital Punishment, 31 MD. L. REV. 289, 291
ft (1971).
| 50/ "The most salient characteristic of capital
punishment is that it is infrequently applied
« « « {A)11 avoilable data indicate that
ty judges, juries and governors are becoming in-
{; creasingly reluctant to impose or authorize
the carrying out of a death sentence.”
PRESIDENT'S COMMISSION ON LAW ENFORCIMENT AND
—— ——
OQ O i
\ 5i/
-powerless or despised minorities--to die in secret for crimes
———_
punished less severely in the vast majority of cases.
"[vJoday society will inflict death upon
only a srall sample of the eligible crim-
inals. Rejection could hardly be more
' cowplete without becoming absolute.” ‘
Furmon v. Georgia, supra, at 300 (Brennan,
tt J. concurring). H
r aoe ; ;
f Yhe Furman majority rightfully looked to what the public
‘conscience will allow the law to do, as opposed to_what it will
permit the law to threaten. In the words of Mr. Justice Brennen,
'
\
| “whe objective indicator of society's view of an unusually severe
lpunishmont is what society does with it." 408 U. S. at 300 (em- |
|
phasis added). A punishment which 1s tolerated only because it is
‘
j '
'
‘
. . .
‘rarely imposed, or because the facts and circumstances surrounding
its impos sition and the evidence of its inutility are generally
‘unknown, or because it is imposed only upon the powerless and mem-
bers of outcast groups, is not a punishment consistent with con-
¢
beeen morality. Even in those states which have enacted new
capital punishment legislation since Furman, the imposition of the .
50/ (Cont 'a)
‘ ADMINISTRATION OF JUSTICE, REPORT (THE
CHALLENGE OF CRIME IN A FREE SOCIETY)
; (1967), p. 143.
The extent to which this is true appears upon inspection of the
peenty reliable figures on executions maintuined by the Federal
Bureau of Prisons since 1930. Of the 3,859 persons ecxecutod |
‘under civil authority in the United States between 1930 and 1°68,
only 191 were executed during the 1960's and only 25 were exccutecd ,
jafter 1963. No one has been executed in the United States since
‘|1967. UNITED STATES DUPARTMENT OF JUSTICE, BUREAU OF PRISONS,
(NATIONAL PRISONER STATISTICS, Bulletin No. 46, Capital Punishyecnt
|'1930-1970 (August 1970). |
~
|
S1/ gustice Douglas quoted the conclusion of the President's '
Commission on Law Lnforecment and Administration of Justice that
"“*the death sentence is @isproportioniately imposed and carricd out
,on the poor, the Negro, and the members of unpopular yroups.'"
Furman, supra, at p. 249. See also the concurring opinions o-
{Justice Stewart, at p. ae and Justice Marschall, at pp. 364-306.
Justice Marshell noted a “American citivons know almrost nothing
about capital punishment. Indecd, aneneend 3 the details of
execution is insured by lav in that every American jurisdiction now
‘
© ©
'
i
;
: : , : |
death penalty remains, and must continue to remain, a freakishly |
rare occurrence. Indeed, even in the State of North Carolina, j
where for fourteen months a purportedly “mandatory” death sen-
tence was put into effect for four relatively common crimes, the
‘number of death sentences was so low that it is impossible to con- |
clude that the penalty was being in a fraction of the cases to
\
. . . . * . . . '
which it was theoretically applicable. The legitimacy of its ap- |
plication in a manner which no honest mind can doubt will continuc .
'to be freakishly rare in this country--if it continues at all--
iis therefore called into question.
‘|
i oon fe : .
1 Third: The growing reluctance to allow the state to take
li the life of any human being and the absolute refusal to require
i
‘lor tolerate general application of the death penalty reflect not
i
ionly an increased awareness of the inutility of the punishment,
i,
I
but also a moral development which has produced an increased re-
|
spect for lite and a concommittant revulsion against inflicting
———
|the physical and psychological torture of condemnation, inevitabiy |
) 52/
!
|;
| . ‘
lengthy death row confinement and execution. Increased respect for
| —
|} 51/7 (Cont'd)
forbids public executions. Movements to Abolish the Death Penalty ,
‘in the United States, 284 ANNALS 124, 127-130 (1952).
'52/ ", . . the struggle about this punishment has been one be- ;
,tween ancient and deeply rooted belicfs in retribution, atonement
‘oer vengeance on the one hand, and, on the other, beliefs in the
personal value und dignity ef the common mun that were born of the
democratic movement of the cighteenth century, as well as belicfs
,in the scientific approach to an understanding of the motive forcecs
of huwan conduct, which are the result of the growth of the scicn-
ces of behavior during the nincteenth and twenticth centurics.” i
SELLIN, THE DEATH PLNALTY (1959) 15. i
;
i
'
'
'
« @9 « '
‘life and increased respect for the diqnity of man inevitably in-
crease the awesomeness of the notion of condemnation and exccution.
yhus cxecutions, which were once routine occurrences, had ceased
fer a perio? of five years even p! ior to Furman as this nation
P ; . . '
nconin. ad over the prospect of their resumption and over the incvi-
} } } I
table and scbering possibility that human crror or a denial of cuc!
53/
process could send a man to his death.
the cnormity of the process forbids its resumption without
‘the prior juiqcment of this Court. If, aiter uw lapse of seven
lyears, the United States is going to return to killing people,
'
lithis Court shovld first consider under the relevant Eighth Amend-
iment standards all that that implics.
t It. is incontrovertible that an impending exccut ion inflicts
severe psychological anguish and mental pain upon a condemned mon.
! |
'
Under 2 leqal system which postpones execution for periods
.
measured in years in an attempt to assure its conformity with due
|
i
, , cas , : |
, process of law, the wait between the imposition of sentence anc '
|
ithe actval infliction of death exacts a severe toll.
!
i}
— ,
+} P ° ° '
1} As the California Supreme Court has pointed out," the process
; |
i !
. . . . '
|! of carrying out a verdict of death is often so degrading and
| |
. . . . '
!'brutalizing to the human spirit as to constitute psychological
|!
' torture." People v. Amicrson, 6 Cal.3d 62, 493 P.2d 880, 894
' (1972).
|
ect eater cmnemmmnnarena aN '
i '
i '
'-§3/ See Black, “The Crisis in Capital Punishment" 3] MD. L. REV.
rsa 290, at 295-300 (1971).
|
'
i’
!
'
) - §& Oe
I |
: © ©
Yhe condemned prisoner, even more than the expatriate, is
subjected to the “fate of ever-increasing fear and distress.
-
Trop v. Dulles, 356 U. S. 86, 102 (1958) (plurality opinion of
----
Chie! Justice Warren). The stress of awaiting execution fre-
quently produces insanity, see Solesbee v. Balhom, 339 U. S. %, 14
. (2950) (Justice Frankfurter, dissenting), or other extreme mani-
festations of psychological compensation.
| Moreover, existing data suggests what imagination intuits:
‘there is likely to be unmeasurable physical pain before con-
}'
sciousness is lost. “Although our information is inconclusive, it
i
appears that there is no method available that guarantecs an im-
eee and painless death." Furman v. Georgia, supra, at 267
‘sr. Justice Brennan concurring).
\ and there is, finally the enormity and irreversibility of
'
‘the act of condemning and terminating a‘human existence -~ an act
A ass denies absolutely the very thing which the Eighth Amendment
= created to protect: the dignity of man.
The moral development which has accompanied advances in
understanding of the causes and control of crime and which is re-
flected in the increasing world-wide disinclination to impose the
t ’ : .
‘punishment of death calls upon this Court now to consider the
'
Amendment's measure: “the evolving standards of decency that mark
! 54/
ithe progress of a maturing socicty.”
'
i
'
'
'
|
'
'
'54/ Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion
or Chicf Justice Warren).
o!
t
(D) Whether the death penalty is so inconsistent
with contemporary standards of decency as to
| violate the Eighth and Fourtcenth Amendments.
The remaining kighth Amendment issue presented by this case
( is whether the death penalty is an execssive, disproportionate
; ' and aberrational punishment for the crime of rape when that
crime results in no considerable bodily injury. The question
| |
' . . . *.
, &8 one on which a conflict apparently exists between the |
| ‘
'
I, , ° 4 .
North Curolina Supreme Court and the cognizant federal Court
‘| ; |
i! ' P —_ . , |
; Of Appeals. See Kalph v. Waracen, 438 F.2d 786, 793 (4th Cir. 1970)
. eT !
i }
| cert. denicd 408 U.S. 942 (1972).
i |
\! Restraints upon excessive punishment run deep in the Anglo- |
} lif |
} American tradition, and their cxpression in the Eighth Amend- !
I |
} ment was a principal ground of decision in Weems v. United }
|
) Staies, 217 U.S. 349 (1910). Although the punishwent involved ;
i |
'
. . ° . ° i
ban Weems was peculiar and outlandish in nature, condemnation |
i} :
{| . . . !
| of it rests expressly upon the oppressiveness of that punishment
'
'
i for the crime of talsifying public records, and its consequent
_
, ; lack of “adaptation of punishment to the degree of crime.” 217
t '
!
U.5. at 365. See also O'Neil Vv. Vermont, 144 U.S. 323, 337,
| 14/ |
! 339-340 (1892) (Justice Field dissenting); Mart v. Coiner, 483 i
|
een reo tae |
13/% Magna Carta contains three chapters requiring that amorce-
ments be proportioned to the measure of miaqnitude of offenses.
MAGNA CARTA, ch. 20-22 (1215), printed in ADAMS & STHI MENS,
SELECT DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY (1920)42,45.
a
MS Sustices Harlan and Brewer agreed with Justice Ficld that
O'Neal's Jows jail sentence was excessive “in view of the !
Character of the offence committed,” 217 U.S. at 366, 371,which
were liquor lev violations. The majority of the Court declined
to .reoch the morits of the question hecause it was not proporly
presented and becat the Kighth Amend nt was not then viacwed
ac a restraint upon the States. 217 U.S. at 333-332. :
'
i # } -
pe] :
36, 139 (4th Cir. 1973), cert. denied, __ U.S
‘a.2d 881 (1974)
This constitutional requirement of adaptation is not
tean: it does mot command a commensul ibility of crime
inislvecnt that neither legislaturesnor courts, nor the
Y informed to calibrate.
©, 77 HARV. L.
REV. 1071, 1078-1080 (1964). However, it would ignore the
entixe experience of our criminal law system to deny that the
grading of offenses by their seriousness 1s endemic to it;
and, in this context, the Eighth Amendment's prohibition of
cruel and unusual punishments must impose some restriction u on
a State to proceed aberrantly in affixing maximun
penalties to grades of crime.
In assessing the death penalty fox rape as that penalty
vas reinstituted in North Carolina by State v. Waddell, 282
N.C. 431, 194 S.E.2a 19 (1973), this Court is not left without
compelling benchmarks. For the fact is that such a punishinent
today is aberrant in the farthest extreme. Rape is everywhere
regarded as a serious offense, but it is punished by death in
only four countris outside the United States: Taiwan, Zambia,
15/
Malawi, and the Republic of South Africa. Prior to the
)'./ Wid Y NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL AVYFAIRS,
CAPITAL PUG MYT (ST/SOA/ED/9-10) (1868), pp. 40, BG. Thi:
survey Wa based u naenponses received from gov rnments or
"nat nal [United Nations) correspondcnts” ain 1609 countries
and coloni¢ 2 ! it 4-5.
Furman decision, sixteen American States and the federal
1G/
government authorized a discretionary death penalty for rape.
1y/
18/
However, as of June 1, 1974, only Georgia, North Carolina,
iv
and perhaps Louisiana impose the death penalty for the rape
i a a a
1G/ 18 ULG.C. §2031 (1971); Ala. Code, tit. J4 §395 (Recomp.
Vol. LOSE); avi DPtWIEe>s Ale 841-3403 (Sap
Ann. 6794.01 (1965); Ga. Code Ann. §26-20
}
O1 (1969); Ky.
>» 1969); Fla. St
ate
Rev
Stat. Ann. 6435.090 (1969); La. Rev. Stat. Ann. G614:42 (1950)
and La. Code of Crim. Proc., Art. 817 (1971): Md. Code Ann.,
art 27, 6461 (Repl. vol. 1967); Miss Code Ann. 62358 (Rec
VYol. 1956); Vernon's Ann. Mo. Stat. 6559, 260 (1953); Nev.
E0200. 363
vr f
1969); Oxia. Stat. Ann., tit. 21, 61115 (Supp. 1970); S.C.
Code Ann. 616-72 (1962); Tenn. Code Ann. 639-3702 (1955);
OTP.
Stat.
, 200.400 (1968); N.C. Gen. Stat. §14-2) (Repl. Vol.
Vernon's Tex. Pen. Code Ann., art. 1189 (1961); Va. Code Amn.
§18.1-44 (Repl. Vol. 1960).
17/ Wo. 74, Ga. 1973 Sess. Laws, at 164-165, amending Ga.
Code 627-2534.1. °
Me/ North Carolina's new capital punishment legislation imposes
the death penalty for “first degree rape," defined as rape
accomplished through use of a deadly weapon or attended by
sixteen years of age and the victim is “a virtuous female
under the ave of twelve years." N.C. Gen. Stat. §14-21, as
amended by See. 2, Chap. 1201, 1973 N.C. Sess. Laws.
jd 9/ Stit
‘scrious bodily injury" or a rape wher@;the defendant is over
child
ev. Selman, La. Sup. Ct. No. 54376 (June 10, 1974)
(the time to seek rehearing has not expired as of the date of
the filing of this petition for certiorari. See La. Sup.
Rule IX, 6 1).
Ct..
——— ee 0 ee - ae +
of an adult woman, while two other States make certain rapes of
children capital. Bleven of the sixteen States that punished
rape with death before Purman have now abandoned the death
21/
penalty entirely for this crime. And the North Carolina
General Assembly itself, acting after the affirmance of
petitioner's death sentence, has ceased to use death to punish
the wide range of rape offenses made capital by the State's
Supreme Court in Waddell.
-_---— —
20/ The new Florida statute imposes the death penalt for rape
LN I i y }
if the victim is under 11 years old and the defendant is 17 or
older. Fla. Stat. 6921.141 (1972). ‘the new Yennessee statutc
imposes the death penalty for rape, if the victim is under
twelve years of age. Tenn. Code 639-2402, as amended by Pub.
Chap. 462, “Wem. Luws 1974.
21f Arkansas, Yentuchy, Mississippi, levada, Oklahoma, and
Tosxas bave enacted new Geath penalty slatutes that do not make
rape a capital crime. Alabuma, Missouri, Maryland, South
Carolina, and Virginia have not enacted any death penalty
legislation after Furman.
ee
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.