# Petition — Simmons v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 428 U.S. 903

## Text

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975

No .

ERNEST RAY SIMMONS,

Petitioner,

STATE. OF NORTH CAROLINA,

Respondent.

PLTITTON FOR WRI OP CERTIORARI
7O THE SUPREME COURT OF NORTH
CAROLINA '

THOMAS W. HENSON
Ezzell & Henson
2373 Sunset Avenue
Rocky Mount, Nor.a Carolina
27801

JAG! CREEN DERG

JAMES M. NABRUY, ITT

PEGGY C. DAVIS

DAVID E, KeliDALL
10 Columbus Circle
New York, New York 10019

ANTHONY G. AMSTERDAM :
Stantord University Law School _
Stanford, California 94305

ADAM STEIN
CHARLES L. BECTON
Chambers, Stein, Ferguson &
Becton
157 East Rosemary Street
Chapel Hill, North Carolina
27514

ATTORNEYS FOR PETITIONER ; i

_

INDEX

Page

Citation to Opinion Below ..ccccccccccccccccisccccccece 1
JUTISGICCION woccccdecccccccccscseccscccccssecsecsececece 1
Questions: PreBented ...scccccccccccccsessccesessecsesece 2
Constitutional and Statutory Provisions Involved ....ee. 2
Statement Of the Case cocccccccccecscccccesesscsessesece 3

How the Federal Ouestions Were Raised and Decided

Below “ene vnenoeneeenerewneeneeneneeneneeneenreeeeeneeeneeeee ee ee ee *# © © & © 14
Reasons for Granting the Writ

I. The Court Should Grant Certiorari To
Consider Whether The Imposition And
Carrying Out Of The Sentence Of beath
For The Crime Of Murder Under The Law
Of North Carolina Violates The Eighth
Or Fourteenth Amendnent To The Consti-

Gueion OF The United States ccccccesoesocceses 17

II. The Court Shovld Grant Certiorari To
Consider Whether The Exclusion For Cause
of Three Veniremen On The Grounds Of Their
Lxpressed Attitudes Toward The Death Penalty
Violated Petitioner's Rights Under The Sixth
And rourteenth Amendments To The Constitution
Of The’ United States ciccccceccccccccccesceces 18

A. The Test of Exclusion Applied by the
Court Below Did Not Meet the Minimum
Standards Required by the Constitution
As Constrved in Witherspoon v. Tllinois,
391 U.S. 510 (1968)... ccccccccccccccccecce 23

B. The Exclusion of Veniremen with Con-
scientious Scruples Against Capital
Punishment Deprived Petitioner of His
Sixth Amendment Richt to a Representative

Jury e*eeevreeeeeveeeeeeveeneeeewneeeveewn een eeeeeeeeee 28

IIt. The Court Shovld Grant Certiorari
To Consider Whether The Admission
Of A Law Enforcement Officer's
Recapitulation Of Petitioner's
Oral Confessions, When This Recapit-
ulation Was Partially Based Upon The
Officer's Reeollection Of A Composite
Story kelated By Both Petitioner And
A Co-Defendant (Who Did Not Testify
At Petitioner's Trial) And Partially
Upon Petitioner's Apparent Acquiescence
In The Statements Of His Co-Defendant,
Violated Petitioner's Right To Be Con-
fronted With The Witnesses Against Him,
Guaranteed Py The Sixth Amendment ‘to
The Constitution Of The United Stites,
To Be Free From Compulsory Self-Incrin-
ination, Guaranteed By The Fifth
Wween@ament And Yo Be Afforded Due Process
Of Law, Guaranteed By The Fourteenth
AMENAGMENC. cccccccrccccvcesesecessssseese

Conclusion “ee eeeeeeeeeaeeeneaee ewe eeaenwmweerenwnwneweereneer rr err ere

Appendix A: State Lo Simmons, oC , 213 S.E.2a

280 (1978S) cccccccceeceeseeeceseceereeseesesesese

Appendix B: Pp. 11-51, Petition for Writ of Certiorari
to the Supreme Court of North Carolina, Dillard
v. North Carolina, No. 73-6875 (filed June 1l,

ee re en ee ee ee ee ee

EOFS) cccceseceseseeseesesecsesdeseseecroewmesneeseces

Appendix C: Pp. 72-78, Petition for Writ of Certiorari
to the Supreme Court of Florida, Hallman vy.

TABLE OF CASES

!
|
|
i

Alecorta v. Texas, 355 U.8.° 28 (1957) ..ccccecsescccssses
Boulden v. Holman, 394 U.S. 478 (1969)... cccccccccccecs
Bruton v. United States, 391 U.S. 123 (1968)... ceeeee

Dillard v. North Carolina, No. 73-6875 (filed June

BL, 1974) cccccccccccccccccessescccsccececceooeses
Fowler v. North Caroiina, No. 73-7031 Ce cccccccccccccce
Giglio v. United States, 405 U.S. 150 (1972) ..c.ceeeees
Hallman v. Florida, No. 74-6168 (filed March 1l, 1975).

‘

ii

Page

28

33

la

lb

Te

23,27

Harris v. Texas, 403 U.S. 947 (1971), rev'g 457 S.W.2d
903 (Tex. Ct. Crim. App. 1970) (sub nom. Harris

Vv. State “ese enevreneneeeeneeneenreeeeewneeeneeeeeeevreeneeeeeeeeneeeen eee

Hovila v. State, Texas Ct. Crim. App. No. 49,396
(April 30, LOTS} choccccccecesvspecsdeceeseoccesoce

Jaggers v. Commonwealth, 439 S.W.2d 580 (Ky. Ct.

App. 1968), rev'd per cur. sub nom Jaggers

Ve Kentucky, 403 i? 946 bg} ae rrr rrr rrT Te ee
Marion v. Beto, 434 F.2d 29 (CAS BUTS) Gocceeevecetbecss
Mathis Ve New Jersey, 403 v.88. GAG CAGED os 0u6 a0 6 aess ae
Maxwell v. Bishop, 398 U.S. 262 (1970). ..ccccccesccccoecs
Mesarosh v. United States, 351 U.S. 1 (1956)... cccccece
Miller Ve Cox, 457 ¥.2d 700 (CA4 BOE ce weedtensbdene 6%
Miller Ve Pate, 386 * 1] SONS. wa cde kone tense cese
Miranda Ve Arizona, 384 U.S. 436 (1966) “*ee ee een neneeenee
Moone y Ve Holohan, 294 a os 103 FSS SS) cccsuceocedéccesed
Napuc Ve lllincis, 360 U.S.264 CEORO catoncaseeeeeesses
People v. Speck, 41 111. 24 177, 242 N.E.2da 268 (1968),

rev'd per cur. sub nom. Speck v. Illinois, 403

WeBeo Gd CREAR) 66066060000606066606660600H08 050686

Pyle v. Kansas, 317 U.S. 213 (1942) .ccececeecoeeccccees

State v. Adans, 76 Wash. 2d 650, 458 P.2d 558 (1969),
rev'd per cur. sub nom. Adams v. Washington.......

‘s

State v. Jarrette, 284 N.C. 625, 202 S.E.2da 721 (1974).

State v. Mathis, 52 N.J. 238, 245 A.2d 26 (1968), rev'd
per cur. sub nom. Mathis v. New Jersey, 403 U.S.
946 CROPS nec 6006 4 666606065006 066506000608 60069%

State v. Silver, _N.C.__, 213 S.E.2d 247 (1975)....06-
State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973)...
State v. Williams, __N.C.__, 212 S.E.2d 113 (1975).....

t

State v. Young, N.C. Sup. Ct. No. 46 (Mecklenburg
County, Spring Term 1975) (June 6, 1975). ...cceeees

444

Page

eee

United States ex rel. Staino v. Brierly, 387 F.2d
597 (CA3 Pee eheédedsacudechsawoeted6acessed sé cuedeeke

United States v. Hale, 43 U.S.L.W. 4806 (U.S.,1975)....

White Ve Ragen, 324 U.S. 760 ee

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

Statutes:

28 U Be Pky yg) Ree “vee ee eee ener eneeeeeune ewe een eer eenenee
B.C. Gon. Stats Baerare tec Was BOOP) 66s eessoesese

614-17 (1974 Supp.) ne © ® @ ee @ rf © © ©

18,23,25,

§15-187 (repl. vol. 1975)...... eevvece

615-185 (repl. vol. 1975). “ee # © oe

iv

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975

No. 75-

ERNEST RAY SIMMONS,
Petitioner,
oe. *
STATE OF NORTH CAROLINA,

Respondent.

rn ve * ) wer 7? Gn BF “is ih oe bP Oe 4k a
DTITION FOR WRIT Ci 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 f£ North Carolina is
reported at __N.C.__, 213 $.E.2a 280 (1975), and is set out in’
Appendix A hereto, pp. la-1l2a, infra.

JURTSDICTION

The judgment of the Supreme Court of North Carolina was
entered on April 14, 1975, and is set out in Appendix A hereto.
Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3),

petitioner having asserted below and asserting here deprivation

of rights secured by the Constitution of the United States.

oo. oe eee

QUESTIONS PRESENTED

=

1. Whether the imposition and carrying out of the sentence
of death for the crime of murder under the law of North Carolina
violates the Eighth or Fourteenth Amendment to the ConstituLlion
of the United States?

2. Whether the exclusion for cause of three veniremen on
the grounds of their expressed attitudes toward the death penalty
violated petitioner's rights under the Sixth or Fourteenth
Amendment to the Constitution of the United States?

3. w#&rmether the admission of a law enforcewent officer's
recapitulation of petitioner's oral confessions, when this recapi-
tulation ware partially based upon the officer's recollection of
a composite story related by both petitioner and a co-defendant
(who did not testify at petitioner's *rial) and partially upon
petitioner's apparent acquiescence in the statements of, his co-
Gefendant, violated petitioner's right to be confronted with the
witnesses against him, guaranteed by the Sixth Amendrent to the
Constitution of the United States, to be free from compulsory
self{-incrimination, guaranteed by the Fifth Amendment and to be
afforded due process of law, guaranteed by the Fourteenth
Amendment? |

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

l. This case involves the Fifth, Sixth, Eighth und Four-
teenth Amendments to the Constitution of the United States.

2. This case also involves the following provisions of
the General Statutes of North Carolina:

614-)7 (repl. vol. 1969): “Murder in the first and
second degree defined; punisiuwent.--A murder which

shall be perpetrated by means of poison, lying in

wait, imprisonment, starving, torture, or by any
other kind of willful, deliberate and premeditated
killing, or which shell be committed in the perpetra-
tion or attempt to perpetrate any arson, rape,
robbery, burglary or other felony, shall be deemed
to be murder in the first degree and shall be
punished with death: Provided, if at the time of
rendering its verdict in open court, the jury shall
£0 recommend, the punislurent shall be imprisonment
for life in the State's prison, and the court shall
so instruct the jury. Ali other kinds. of murder
slall be deemed murder in the second degree, and
shall be punished with imprisonment of not less:
than two nor more than thirty years in the State's
prison." 1/

§15-187 (rep). vol. 1975): “Death by adminietration _

t
of Jethal gas.--Death by electrocution under sentence

of law is hereby abolished and death by the adminis-
tration of lethal gas substituted therefor."

§15-158 (repl. vol. 1975): “Manner and place of
execution.--The mode of executing a death sentence
must im every case be by causing the convict or
felon to inhale lethal gas of sufficient. quantity
to cause death, and the administration of such
lethal vas must be continued until such convict
or felon is dezd; and when any person, convict

or felon shall be senteaced by eny court of Ure

State having competent jurisdiction to he so

executed, such pun!’ shment 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
Carclina. 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 dezth in accordzence with’ the
reguirenents 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

*

l/ As construed in State v. Waddell, 282 N.C. 431, 194 S.E.2d
19 (1973).

“_

April 14, 1975, affirming petitioner's conviction and sentence
of death. Petitioner, Ernest Ray Simmons, an indigent black

male, was sentenced to death in the Nash County Superior Court
on June 13, 1974, wpon conviction for the first degree murder

2/
of Mrs. Mary C. Powell, a white female.

2/ .Petitioner's sentence of death was imposed under N.C. Gen.
14-17 f(repl. vol. 196%) (murder) as construed in State v.

Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). The North Carolina
Legislature subsey.cntly enacted a statue, S.B. 157, Chap. 1201,
1°73 Scss. (2nd fess. 1974), effective April 8, 1974, which
slightly altered the definition of first Cegree murder. The
new: first degree murder etatute, now codified as N.C. Gen. Stat.

€14-]7° (1974 supp.), provices:

"A murder which shall be perpetrated by means ‘

of poison, lying in wait, imprisonment, starving,
torture, or by any other kind of willful, @clibcrat
and premeditajyed killing,’ or which shall be committca
in the perpetration or attempt to perpetrate any
arson, rape, robbery, kidnapping, burglary or other
felony, shell be deemed to be murder in the first
decree and shell be punished with death. All other
kindr of murder shall be deemed murder in the second
degree, and shall be punished by imprisonment for a
term of net less than two years nor more than life
imprisonment in the State's prison.”

The 1974 legislation, however, is not involved in this case.
Por the North Carolina Supreme Court has expressly held, with
three Justices dissenting, that the enactment of that legislation
did not affect death sentences imposed under the anterior State
v. Waddell procedure. State v. Williams, _ N.C... 212 S.E.2d
113, 119-120 (1975) (affirming a death sentence for rape). .
Subsequent to its Wiliams opinion, the court hps affirmed death
sentences imposed for YWirst degree murders comuitted before
April 8, 1974, with Chief Justice Sharp dissenting on the grounds
expressed in her dissent in State v. Jarrette, 284 N.C. 625,
202 S.F.2d 721, 747-750 (1974), and with Mr. Justice Copeland
and Mr. Justice Rxum dissentina on the grounds expressed in
their dissefits in State v. Williams, N.C... 212 S.E.2da 113,
121-123 (1975). See, e.g., State _v. Wetmore, N.C. Gup. Ct. No.
47 (Rowan County, Spring Term 1°75) (June 6, 1975); State v.
Young, N.C. Sup. Ct. No. 46 (Mecklenburg County, Spring Term
1975) (June 6, 1975).

Petitioner was indicted on January 28, 1974, for the murder
of Mrs. Powell “in the perpetration of the felony crime of
burglary and the attemptee perpetration of the felony crime of

a/
robbery.” R. 3. The last person to see the 8&5 year old Mrs.
Powell alive was a neiahbor who had cut wood and set it on her
front porch; he saw her at 5:00 p.n., December 13. R. 34.
Another neighbor had been in her farmyard at 9:00 a.m., December
14, to cut wood but had not seen her. R. 42. A motorist recalled
passing Mrs. Powell's house between 6:90 p.m. and 9:30 p.m.,
December 13, and seeing a parked car fifteen to twenty feet off

7 . . ™ . L _ . _ »* 7? 2 y * 7 — 7
Line soda si @ Geave way jbo. Let a2itah mite. Poweia'S Grave Weiy e KR. 44

45. Two other passersby also novliced a car in this driveway at
A
a/
approximately 9:00 p.m. R. 46, °49. None of these witnesses
saw anyone in or near this parked car. A neighbor who drove hy

Mrs. Powell's house between 11:00 p.m. and 12:00 p.m. the nex

night, December 14, remarked that the house was “all lit up."

3/ the jury was instructed, however, that:

“Ti you are satisfied beyond a reasonable
Goubt that the defendant Ernest Ray Simmons,
while either in the course of an attempted
armed robbery or while comitting a burglary
and that either of these proximately caused
the death of Mary C. Powell [sic], it would be
your duty to return a verdict of guilty of

murder in the first degree."

R. 168 (emphasis added).

4/ The lone motorist described the parked car as “[s)omething
like a ‘68 or ‘GY Roadrunner, orange with a light top... .
{with} fluorescent stripes going down the sides of the car."

— 2

=

Mrs. Powell's dead body was discovered lying on the floor
of the Powell home by a neighbor at 6:00 a.m., December 15, 19737
death had been caused by blood loss due to a shotgun wound in
the right buttock, R. 51. A pathologist concluded that Mrs.
-owell nad been dead for at least» one day at the time of the
December 16 autopry,.and perhaps es many as two or three dayé.
R. 53. Investigators discovered a hole “about the size of a
quarter or just a mite larger,” R. 57, in one of the glass panes
of the front door. There was glass on the floor of the front
room, and Mrs. Powell's body was lying by the fireplace in this
+ . - » . .
room. The wedding from ea .12 gauge shotgun shell was discovered
mroximately six to eight feet from the body, and a spent blue
_2/
~L2 geuge Reminglon Pelers Vielury sholyun sheil Was iound on
c,

the drivewzy about 150 feet. from the house, R. 58, 73, 141.

Severul rooms of the house hed been ransacked: drawers had been

4 / cont'd.

R. 44. Also, the rear end of the automobile “might have been
raised up just a little." Ibid. The other driver testified that
“it looked like a Roadrunner to we and it was jacked up behind
. « « « The car was sort of an orange color and [sic] a beige
top." R. 46-47. This motorist’s passenger described the parked
cur as “an orange Roadrunner with a beige looking top, beige
streaks on the side and it was jacked up behind.” R. 49.

5 / The investigator who found this described it as a “very
cownon brand” of shell: “people hunt on the farm ail the time."
R. 59.

7 .
opened, a metal chest had been uncovered and papers had been

strewn on the floor. P. 69-70. A December 14, 1973, newspaper
was discovered in the mailbox, and check stubs were found in the
‘kitchen with dates as late as December 13. R. 77-78.

Whe chief uiidiieie against petitioner was a series of three
oral confessions which he made to Sheriff Glenn Womble, who

testified tiat he warnec petitioner of his caostitutional right
to silence and to the assistauce of counsel on each occasion

before, interrogation ‘and that petitioner orally waived these
rights each time. Sheriff Womble recapitulated petitioner's
December 20, 1973, confession from memory:

"Ke [petitioner] told me that he went to
Martha Jones’. That Frank James Silver [6/}
cane to Martha Jones’, brought his wife, his
Sister and his brother. That he -- and that
Simaons [petitioner] and Silves left on [sic]
Silver's car and went out tou Mrs. Powell's
home, Grove by the house, parked on the rightr
hand side of the road, got down, walked across
the highway, clumb over a fence, walked through
a lot -- and she had a fence running parallel
with the north driveway -- they clumb over the
fence there. When tley clumb over the fence
there, Silver stayed there. . Simmons went up

eee ee

6/ Frank James Silver was also indicted and tried for the murce
of Mrs. Powell, and at.a separate trial from petitioner's, he
was found guilty of first*degree murder and sentenced to death.

The North Carolina Supreme Court reversed this conviction on the ~

ground that the trial court had admitted Silver's December 22,
1973, confession without properly determining whether it had been
tainted by a possibly involuntary confession on December 20.
State v. Silver, _N.C.._,. 213 S.E.2d 247; (1975).

"

to the house, walked around the house, stepped
up on the back step to the back porch, looked

in the TV room and said that she was looking

at TV and said she had a big dog in there, He
left, came back and told Silver that she was
looking at TV but said she had a dog in there,

a big dog in there, and he wasn't going in there
without a gun; and they got on -- they went back
to the car, got on [sic] the car and went back
to Martha Jones‘ home to get Simmons’ gun.
Simmons said rid Martha wouldn't let him have
it, didn't want him to take it, so he asked
Silver if he knew where he could get a gun

and said that Silver said, ‘Come on.' Said

they went to Driver's store, Silver went in

and boucht four shells, it was raining,

Simmons set in the car. Said they got im the
car and went to Silver's father's home --

which Silver was living there [sic] with his
father, out on 43 -- drove up to the house and
both of them’ went in the hovse, went to the
front bedroom on the left, raised the mattress
up and got a single barrell [sic] -~- this single
barrel shotgun here -- from under the bed, and
the left gnd went back to Mrs. Powell's but they
stopped this time just before they got tober

house.

They pulied pp in a driveway at an old abandoned

house on the right-hand side of the road going toward

Hickory -- which would ke on the opposite side of
the road from Mrs. Powell's home. They walked down
the highway to the south drive. It is a circular
drive that goes up in her house, they cal) it the
south drive and “the north, it circles all the way
round and comes back out. Simmons said they walked

up the drives they got just a few steps up from the

highwey, that Silver was loading the gun.and said

it went off. He unbreeched it, a shell flew out.
Simmons said that both of them looked for the shed!,
that Silver struck some matches and they both looked
until Mre. Powell -- he said the lights » s on at
her house and they saw her come to the front door
and looked out the window and they left, walked

back up the highway toward where the car was parked
ana there's another @rive that turns to the right,
goes Gown to Almeta Mills' home.

They walked down that drive, crawled over the
fence, walked through the pasture, came up to her
south drive right in the front of the car shed --
that's a little water pump house there. They clumb
over the fence right there. Simmons said he was in

the front, Silver was behind thhim and Silver
had the gun, walked to the back porch step,
stepped up on the step, evoked in the Tv
room and did not see her, walked around the
back of the house, around to her bedroom
window on the north side of the house,
looked in the bedroom window, did not see
her; walked on around to the front of the
house, Simmons still in the front, Silver

right behind hin.

Simnons said he stepped up on the front
porch and that Silver was on the step right
behind him. Said when he stepped up on the
porch he stepped back and told Silver that
she was poking in the fire. He stepped back
on the step, Silver stepped up on the porch
and shot her. He said then that he was wear-
ing gloves and Silver did not have on any
gloves. The he opened the front door, it
waen't Jocked, taken hold of it and went
in. Said Mrs. Powell was lying in front
of the fireplace on her back with her face
vp and said that she was breathing but
she never moved or never spoke.

Ynat he went into the bedroom to the Jeft,
searched through some arawers in there and
came hack out in the room that she was in
and he and Silver both went into the den,
Looked through the den -= that's where the
TV was that they called the TV room -- walked
down # little hallway by the bathroom, went
into her kedroon. Simnons said he pulled
the little drawer open to the night table
setting besides of her bed; that Silver
reached Gown in there, picked up this little
o25 automatic, put it in his pocket. Simmons
said he piched up a box that had some 50/ pieces
in it and he gave the 50s pieces to Silver.
Silvgr put them in his pocket. Them Silver
went back in the room where Mrs. Powell was,
ana then he got a metal box ovt of her closet,
looked through the metal box. Told me he didn't
remember getting anything out of the metal box.

He went into the front bedroom then,

looked through things in there and didn't

get anything in there, walked hack into the
room where Mrs. Powel! and Silver was, went

back in the room to the left, the first room
they went in and he got this double barrel. shot-
gun and this rifle. Said he cane out, came out
into the room where they were, that he and Silver
both went out the front door, walked around the
house to the car shed, went under the si.elter
where the car was, opened the door, looked
through the car, looked through the pocket of
the car end all and said they @id not find ,
anything there, and he left and went back down
the south drive and on back to the car, got in
the car and left, went back to Silver's hone,
put the gun -~ both of thu went in the house,

. put the gun back ander the mattress in the front
bedroom and left there, went to his house and
before he qot to his house that Silver had two
shells, thet he gave him the two ‘Shells; he put
them in the chotgun anda Jeft the shotgun and
the rifle at his howe,

Ne left. the shotgun and the rifle:.at Simnons'
bone, carried them beck to Simmons’ home, Weft that.
Then he anc Silver left there and went down to
Mertha Jones' howe and that Silver got his wife,
his sister and his brother md left and said he
left in a few minutes and walked back to his
home,"

R. 103-106. Sheriff Wonble testified that the next day, December
; , :
21, in the presence of Frank James Silver, petitioner "made tha
same statement” as he had made on becenmber 20. R. 107. On
December 22, pehitioner requested the police to allow him to
“re-run the route" he and Silver had taken on becember 13, and

during this journey, he gave a rambling statement that conformed

with his December 20 confession. R. 106-113.

2/ After a hearing conducted outside the presence of the jury,
the trial court ruled all three of these ctatenents admissible:

"All right. Let the record show then at the

end of the voir dire hearing, the Court finds
as a fact that on the dates of December 20, 21,

—"

On cross-exemination Sheriff Womble testified that he had
meade notes during the various interviews with petitioner and
Silver which, while "not verbatim," reflected everything "material"
that the two men said. R..121.

Wien defence counsel was permitted to read these notes,
it was determined thet only one entry, for December 20, referred

to petitioner. In its entirety, thib entry read:

"*Hecember 20, 1973, Exnest hay Silver [sic],

¢ ,
black male, 37, route five, Roc) Y Mount. TI
got with Fy: % Silver at Martha J s* housc.
We went to Ractiord Drug, got one-filt of wine,
thie went ¢ 1% house and @dranked a little whit:
whi ske — did not a in quite ‘ half a pal -
Frank Grenk a little. Frank said, ‘Co n, Jet's
go get e shelis.' We went to Drive s store.
Prank went in and got fovr shells. We then went
to Vrank's house, aot a single barre! shot«
£x« unacse the he im the left front roon Wwe
t} ’ t to Powell's hovse. Frank cteppedc vu;
on tie’front porch and shot her. Frank |siec} said
Lrne: gshet hej ae FO

rp. 123. Sheriff Womble admitted that his notes reflected a

22, 1973, at the time of questioning th 4a” .
gr3¢ 4 } >? ‘ 4 ‘3 ae c a I] 4 f
of Er NO. iV as rt i wf trial court } s @erzrec ims int
‘ . *
ang 4 $ c : } vol! 4 i are | ‘ ; AafHa ©eY iw\ie rA der--do vou understand i question: .

A. (No ans tC}.

THE COUNT: Well, let me phrase it anoth way.
If you should be satisfiec from the evidence beyon
a reasonablic dovbt that the defendant was guilty,

would you find him guilty in this cause?

As NO.

THE COURT ®? ow would not? And is the reason vou
would not belsic} because you would know that woul:
cz: hi to be sentenced to dic ian the das chem>er?
Do you understand the question?

. , . * . '
Ao «a ° mot definite jf don't.
THE COURT: Well, as I understood it, you saic

that even thovch all the evicencé conviuced you beyond

C Je Gowbt that the defendant was guilty, you
would not find hina guilty. Is that the way you
answered the question?

A. That is the way 1 uncerstood it.

JHE COURT: Well, is that the way you meant to
it-- you would find the defendant not guil

ty

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may be equivocal and not. models of clarity, it is proper for
the trinl jucice to excuse the juror for cause when a contextual
considerat#on of the entire voir dire examination indicates

that the juror could not vote for a verdict which would result

in the imposition of the death penalty.” State v. Simmons,
_ N.C. ne 213 S-E.2d, 280, 286 (1975): App. A, infra, at
Jn. hat holding presents issues of yeneral significance which
should be determine this Court.
1) i@ornt'
"C) mini o* You wii ] efs wou l, ‘
} gE. Vs ‘ is, 40 U.S. 947 (197]), x g 457. SW.e2d 90
“- ‘ ’ . ‘ P 7r)\ } ee - + « , - 4 ’ ;
Cre. Lok e@ Ci ase fay deo ic qn ) Rf uu Tie ® 1? y , 4 V. State -_ Appli-
cation of such a test, particularly in the case of a-venir-« n
eucl Cue Mr: . 130 Sow ot note | ‘ wi Pee nore fang aby ul Chay
¢ { } ; it a: re et VO ig Toy) ‘ Uhre mcs Lcunl nuances Oo;
expire whiich 3 incdicote t 1. a juror who he consciontic
Ed
$ rUuyrie ‘ é } . Cie if th P ae Liy Mm S neverth 1¢ . hoe 2) Le i
cons tude capital vey t.
737
“a a | 4 ‘ '
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, . ‘ . s ; M4 .
VIO ee ¢ the ¥ { rent Me rt i L ven esd me
not Le « luce e "voic! } weneral ¢ ecetions to the dent)
P , ° . “or
penalty or expressfing} conset s or religious serupler
‘|
against its infliction.” Wither Vv. Lilinois #lsupr $9]
: %°
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. : — : .
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1M. Criminal lew « Ise )
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fener! a Vevri@ ‘ rv sthates wt ' ’
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to sim t) CHocees pay without sending

Bo fee fit ine of facts however, Mh » bet
ter practice te fied Un facts on whieh th

court conmelad that the confession iv ad

12. Crinain j ie . ¢ 2607.0 2
Wiere it was uncontradicted that de

fendant vas fully adviecd of his consiita

tioned siphts prior te cael tnterreyaution or
encounter with bow enforcement of freers,
thet on eoch occasion he hnowh j ive hited
gently, and veluntority waived such right:

‘ ’ " . ‘
and then pri rrerecant to wrthe dneu pritory

Statements er otherwise ged the officers im
the investijation, onto ion was properly
received in evidence. +s

?

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woul 4 pet fer O% 7) ti nit
chamber’

A } Gat Lnow what to soy rg | to
teolh ines trat

THE COURT: As Dund retane if, ys
soy you de not beliewe in capite? punt !
ment!

A. Yes,

THE COURT: Leen t the Sinte’
evp tence © «ten! us ‘ :! thee « vl sere
sof re ! yt tags ‘ Vue ‘ °
thal the deo! lamot bs gut would i 1
yn} " for vou toe relurn & % rlict of
pruatts bornorweate gr ov did ea Un
deve vv »' woul te Se Thkecde io a tn
ih 5 Chatuber--de You voce t may
qu Liease”

A. {No znawer)

‘
yHE COU Wel, let me yp rase it ;
another wav. Jf you st vale? ber satisfied
from the evidence beyond a fea omabsts
a
° *

(7:

STATE vo SIMMONS C N.C. 287

Cue as 20488 Cd eee

fier a af Leach vbhuh mterpret: !

j GS. 6&4 i ta require that all waivers of
: ‘ ' by ? ee by hi . ’ iit
t This 7 of ts arpument ome
‘ it. We thered ivrn te tt
etn n of wi dejcadunt’s evstortial
* * statements we voluntaray ¢
a i the A ‘ Vijstrict Ate
1 x ge? « es ‘ sf Va cores te relite te ti
. Jury & sinte ’ fo to him by diefend
ani, oe } 4 ht ¢ : ‘th
trie! 5 en y ty exe at
} ‘ ‘ Hy? CoV
cereing tne s ity of th aterm
On veir Siieriff \ Khe testified that
he Gale] fo brwesty hey Sime on Yo
Poceanlors i ¢ the denth o® Bir
Mery C. Pewst, The Shenilt Wet iat
ln fore ate . t ? eny mM sTee.. de 1
sti.icment’, fol « enxehange bb
| tion Sheriff ant defend ecerrred
| “, ¢ 7 ‘ te | oe bee
| giant the death of ¥ Jowen, told be

that the fiw pequered me to woen bine!

his pip bts; he ii net bawe te mehe aay)
: , .

’ ' statements, ether then wheat be had
me, his name amd bis # fore “yok
that anything that hed make could aut

, .

world be used apwinnt bias in eoert, Chat

he bad # right 4o an ettoraey if be wand

ed ow . of his own choosny, arch af he

‘ wanted one and weren't able te afiord ome

‘ ’ that one woul? be appainted him beiore
eny questions was sic} asked, or Carug:

. questioning. DT abse told bir that if he
Gecided to moke any statements or an-

gwer any quest that he had e sieht to

Quit tailing at any Une he wee the

an? Do sshed him if be anclerstow? bs

- righis and he said ie Oat De hed af be

oo understond whet } had said te him. He
sail he did. Lached bom if he wonted a

he lav yer now. He satd he did wet, Dashed

i zs him if he wasted te make some state

1 - ments. hie said he dud.”

° ~~ The Sheriff further testified? that he prom-

ised defendant nothine, that be did net
® - .
© threaten defemlant, and that defondant,

. ’

\ whe app wed “normal,” telbed froely anal
,
> b
.

, '
inj recarenl te vaderstiand of!

aque Ajore ashed

Simmons them, im suletaner, § dd the
Sheriff that on the wight of 14 Peconic
Mest 9 geet Prank & er wert to Ris
Powells he ftes poortinge Stlwen"s geste
meets aicds i’ read lie went to the
due vd beoted in wl Siiwor waittesl for

hit nen: 2a fence. ew Powell was beohiny

nt television, andl t thot firme reo whet
he deoerthed as « bi: dos tn the he . Ve
then * Silwer that beer Wests Seri greens.” rertes
the hetse withent a gun, Vhercepon

went to Mestha Jon ss heusc, Bhere Same
Byacecas | UM haere fullx att te peageterc! te pot «
gun. Silver told Misa that be knew wv hows
thes could pet a pen. They stopped

Driver's Store, where Silver purchooad fear
shotgun ‘shelts, ane i! pre feud Ore the
home of Silver's Pathan, where they obtain
ete sheteun Upon returning te the viel

ty of the f Nhenes Silver 4 "his en
. ” g r 3 he .
here. Sthoer was bendlij: tle grass as ticy

welled along the Criver ay to the Powell
hovrs, and it xecilenatiy went eff. Silver
bresehed the pan, sand Uh: shel! fiew out

Wie 7] Mr: ; oweh Ie she 3 out the v it v">

they deft sand appro hed the bere Prot a
different direction. Werth Stramons bea any
the way, Gey Pretty came te the Sront of
the beuse. He aenain leched in, sw Mee.
Powe), awl tetd Stiver hat she wie “proh-
ingen the fire” Sawer stepped ap serted shiek
her through the window. “the Sheriff stat.

od on Cresecraminz tion that Silver had: sid

“thet Ernest wae the enc doing the short-
ing.” Pie Sheriff alse seted that be taleed

with Simmons on Beridoy., 212 Deceinbes
W723, aw! Saturdey, 2° 0) combor VV73, and
on these oecasions Sruniow monte stute
ments whieh farther tmpticated hin in the
killince, Mefore talking t) Sitamens on 271
Liccemb rc and 22 December, be airatn
warned Summons of his rights in language
suletanticily the samc a. thet employed
prior to bus interregation en 20 December.
Phe only other Site *\ witmess on vor dire

wes SL Agent BF. B. Cross, whe testitiod

that at the request of Sheriff Womble be

.
.
pis nN. ¢ 2315 SOG LASbet PEMORTER, 26 SELECTS
.
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v. Wil iC. G44, } : In

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? ¥ ¢ | ‘ te have ! ' a earl
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‘\ ‘ pele or Ube © to North ¢ F 0, ats Clr t
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‘ ‘ { ‘ fart : \ Dye ‘ © F ir ‘ im evitener, both ,
° . ‘ ‘ »? o e oz. 2
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} +) As \ : : Lyvch, Levguclosegy tee stow UF they Were Useu
.

.
oy N of: SOLWH DASTREN REPORTER, ye SiH
Fn |
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pocfad sure . { et you WH return ¢ werdiet
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—
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‘ ‘ . ; ; : ‘
1 ; ‘ j ' pris? j
¢ 3% i ‘ wet i feo cemvarl a fer it of th ‘ ' !
\ bert | ! it ; : . errs : N.C. 470, M1 SI }
> ! ter ' i ‘ ‘ ithe wine, ot f 4 P ntizd of
! j ; ! t ‘ ve ! hoe of t! ( i ‘ yl bs thee prete
f { pet") ‘ ’ { fe \ { eormmnt felony 3 ii a | » |
' ‘ j ’ ol Vs Perehen it State v. Bender oe NAA
1 , | | ‘ ‘
’ Be 4 . }t) j ‘ ' { nit } ‘
|} | Ts P ‘ ‘ ate ‘ t +} ’
env 7) lo ahele \ »drunk th
try 1} qit : yf } tres ta ft
‘ ‘ . he could mat | fermed the fei ys Ot
ee “a Get Pisce Ue
' tent 1 red on r io constitute 4
J , 3 j a‘, f : :
eri of teary ‘ : reo! ;
“Generally, ont thon a :
‘ he covld not be puilty cit der the first
neat an ¢ fs eri It i 2 :
; deuyree si a : © ¢ cen Ob ft
Vu ’ ; 1} { ‘e
' fele " rt? 2&4, 8 i! ry tht
a cle ‘ ) reste
tint ley W ‘ edn the por;
e ' ! t t ,
tion of felony An ¢ an.3 ef t of
| ti i t \ i ,
bot! i ‘ “dl } the e
in tha « } ‘ } le om VE
, , der ¢ net hove | cotpimitied om ul
om atte t nt tothe ry, Vou we }
. vr: f { ‘ “ee ‘ liye ~ {
} \e te ' ? i t} ' ' t aa | + | ‘- . or i -_ 1 , -
1. } e)°* - ‘ ore £ Ft end ©
, , \ unby, 206 NWA. & } th beatl «
doubt that the defendant tmtended te rel Hamay, 216 edo be
Grate v. Propst, 274 N.C. G2, Jo) S.i.2d 569
‘ Mary C howell, or Vou vould at boet have . . Proj ° — J re . °
> ; ' State v. iggy, 224 NC. T22, 32 S Ad Soe
} to be satiofoed fits an attempied armed ite . ' ine be ’
oa * Nae 9996 % ° ” m Oye”. BA
poblery that UU defemdant mitcnde. te State vo helly, 2) VO, Gla, © ordeals th, 7
ses Men C tei dteecd in Os ee eee ae
property pormet { \e voul v We de wot them trot th was sufficient
, have to be satisfied beyond! a reasonable evidence i instant ease to require the trial
‘ ‘
.
LA
.
.
{lla]

Lm

~—

REASONS FOR GRANTING THE WRIT

cm ee ee te re ee nee | + ee

Ze yi: COURT SHOULD GRANT CERTIORARI TO
CONSIDER HWHUTIER THE IMPOSITION AND
CARRYING OUT OF THE ‘SENTENCE OF DEATH
FOR THE CRIME OF MJRDER UNDER THE LAW
OF KRORTH CAROLINA VIOLATES THE EIGHTH
OR FOURTEEN, AMINDMENT TO THE CONSTi-

SUTION OF “WhL UNITED STATES.

/

This cease and four contemporary cases present the question

of the constitutionality of the death penalty as that penalty
was resurrected inthe Siete of North Carolina by a four-to-thr

voice of the North Cerolina Supreme Court following Furren v.

Georgin, 408 U.S. 238 (1972). A brief review of post-Rarm yn

developments relating to the Geath penaitv in the United State:

generelly and in North Carolina particulariy sets the question

.

in porspective.

The neerly universal response of state courts in obedience

to Fyrmoan was to hold that death sentences could no longer be

meted ovt under the capital punishment laws which had been in

effect prior to June 29, 1972, and which the Furman decision

|

‘rowder v,. North Carolina, O.T. 1973, No. 73-

on v. North Carclina, O.T. 1973, No. 73-
Jarrette v. North Carolina, O.T. 1973, No. 73-

~ io
{1b}

-*

<> Bee sem oe + 2 e-o-0mee ©+-0°*

oo,
7 ,
af

declered unconstit

wutionel. Sulsecuently, statutes

If See, &.c., United States v. Lee, 469 F.2d 1242 (CA po 1972) 3-
Unit c ' Vv. Wo » 4346 F.2cc 127, 138 (CA4 1973) ("Since the
¢ min Furisan v. Georgia, .-. the statute under which
ci \i2ant was convict >t irst Gecree murder, 18 U.S.C. G1ll, j;
provic the on! poesit) nierce imprisonment for life” i
at 33 }; Wreia it Sia te ve. McNeil} : 43% Pee gS {CAG 1973) 3
Hubbard v. § te, 290 Ala. 118, 274 So.2a 293 (1973) ("There is |
Mo Guestlro Pur nr hos, as of now, climinated the death }
ponaity 73 o ivte. The elimination of the Geath penzlty |
docs not destrey tt} entire statute. Whe only sentence whic
com now be i sed u 2 conviction of the crime of murder in the 3
first Gocres is ifs prisoament." 274 So.2a at 300); State ve}
r », 209 Ariz. J17, 5SOG P.2d 2458 (19735) ("En view of | }
Purean ruling] we hold that the death penalty provisions of [the ,
Ar mad lor statute) ar inconstitutional." 506 P.2d at 254);
oO" L- wv. te, 253 Ark. 574, 6&7 S.W. 24 618-(1972): vcor)
wee P Cal. 3d 369, 105 Cal. Rotr 138, 503 P.aa 5° (1 2)%
© . 7,13) . Con. - = Ae?0 666 (1972)3 Anderson,

Olas Ay : » a os 23 & (Fla. 1972): S1 il van « at - i
state, 229 Ga. 731, 194 &.EB. 26 411 (1972): People ve. Encck,
52 yil. 2A 284, 267 N.E. 20 6O9 (3972) .(*The Supreme Court « '
the Unitc?d Stites has now held that a Ccfendant could not he
valialy sentenced todesth under [pro-Purman Illinois capitel
etatutes)." 287 N.E.2a at 700; Ac NV. State, Ind. °
284 WN.F.2€2 757 (1972); State v. he ol, 212 Kane 40), 513 P. '
Zé (1673) (“. . .court is of the opinion that the denth ; bey
proevisim oF our re 5 r 4 ‘ ’ s« conctitu a ie er geo = a ;
gaol Pe Lod eceticture of Kamas comsstereu dui ated t« :
enact amr: n: Ory lecislation.” 513 P.2d at 256): Caine and
BcInto v. Comronvealth, 493 §.W.2a 824 (Ky. 1975), cert. Cen ‘
414 U.S. @76; State v. Flood, 263 La. 700, 269% S0.2d 212 (1°72) i
("the Furman caso nas climanated ‘copital offenses* in Louisiana.”
2769 SO.?d at 214)? Rartholmey v. State, 267 Md. 175, 297 A.2a
696 (1972); Commonwealth v. LeBlanc, Mass. _,-.299 N.E.2@ 719 |
(1972); Capler v. State, Miss. _, 268 So. 2d 338 (1972)
(". . the harsher penalty of death may not be lawfully impored.
The rewaining part. of the statute is complete. .. .We hold thet

t

because of Furmen v. Coarse the de

- - - + one we ee

ty cannot be in- |
. '
4

. - a
Other punishment for musta: is life imprisonment." 268 So.2d at |
339-40); State v. Scott, 491 S.W.26 514% (Mo. 1973) ("Whe sole
only panismment tor first Geuree murder in thisstate is now ]
imprisonment." at 521); State v. Alvarez, No. 27 gy Dist. Ci
Luneaster Cty., Neb. Oct. 4, 1972; Walker v. State, 86 Nev.
50] P. ): § . Martincay and Nel on, 112 N.H.
293 A r) Ve Faw CriacKk, Je BWeie 2a 499
N ch. 38 Lekd. 2d 338, 94 §.C. 554

(195 Yoh: o}

(397 (“Unaer lihe Furman] hol
follow, the infliction ot the
law of Ohio is now unconstit

evant here]." 285 N.E.

kla. 1973) ("After

i+ be eo

ble, under said
4
&

utional [with possible exception:
_

- « this court reluctantly finds that |

4
death on any convicted person until such time as

130 St. 2d 106, 26 5 nN.&.20 75]
Ging, which we are reguired to
Geath penalty under the existing

i
2d at 755); Pate v. State, 56?
en exhaustive study of the

Cecisions, to impose

wa

an half

feceral covernment), authorizing the use of. the punishwent of
&/

Gear % aii nauly defined cetecoriecs of cases. The statu
Vury widely in t 2 temas and storms, and consequently vary
, / a ‘3 .
t} } eirh bcer culy enacted « Tormirg to the stané C ¢
hf m 2 : v5 ; * at °91G6): Cc Cart Vv, j Chie
49 Pa. 39, °295 As: (1972) + er, ct 1. v. State, ;
- . EN eset , f ‘ ehtce C { : / } *& i ee | Co. ¢ { be tI

a ee ’ r we yer} dexzth 3 it exists un
i} ‘ ‘ _* At Ss wW.2 902); re y e ea
~ ve (4 » Crime 2973)-€" 6 2 we find t?} imneccup
4 ! i i i bid Be mm and Pret h rend
i le under the Co ution of the United States
is: t P un ¢ t eMisling statules."” A
G46); 3 ' » 213..Va. 346,°192 S.h.2d B08 (1972
Sti ~ , 82 Wash. ? 94, -506 P, 1 153 (2973) (°7), cere
Cas! ‘ . G°o; — a ‘ ! effect of preventin

i 3 a ‘ ‘ ¢ . ~ wey i J me gew 4 ert: tise stetvies 4

‘ ~ Reis a, , rs ° . ; s* eo a f i 4.4 £2.
B7 --! Cc .o SieR Ww et utes provide that a court or jury

: ft .
Tee ¢ etcrminatio as oO whether a defendant shou!
} ‘ tonce i life - Ggerth andepencentiv of its findi: t}
cule ihiy of & capital crine; conviction of a purticul
offense do ; » therefore, rec eerily result in a dexrth ¢
tehce.. § Of. these Jews providé « single verdict proceedin
in which t) trial swese or jury nust return a cenera]l verdic
find . cle: Fe iziret ouilty of a. capita] ceorce of the ofiense
J » iA ‘ tai ° Bie s 636 ( : 74), as gt 3] a by Dai. lieB.

45 :

Net. Gen. Ct.3; N.Mex.: Stat. $4 40A-2-1,
(1974): N.C. Gen. Stat. £§ 14-17, 14 23%
Cc! . Fy 10° . ¢ — T wre f "Pens '

se de a¢@ ’ . hie ’ . (onc etlartees

f c } > tma mn . } ° , T+
é { ii amonaed by Pub. Chap. 462

os wid Ta te ‘ er Al. Tap? Baal : Y= Pee
39-3702 (25 athended hy Pub. ww. 460), Tenn.

: e 6
Others Of these statutes provide

jury must return a verdict
Cc ». Ine. Code
Chap. 507, as

*

MenNGeca by KV

Lus Rev. Stat. §9 14:30, 14

No. 23
7
--

j
,
oj
eve
;
3 B

mn.

enn. Code /Amnn,
La is 3974),

Laws 1974) (1974

’
a unitery proceeding where a
+
.

acts t> jus

e, Reg.
€:il13 {

e Rev. St
Sess. 1974;

‘
i

7)

om «

|
/ .

1974); La. Cod

a

~—————— =

urven and wit the Fichth and

ee

by CON} a

Crim.-Proec.. Art. 557, 598, 817 (1974); Miss. Code .6§ 97-3-19,
O7-3-G, (1974), as emended by Miss. §.B. Ro. 2341, ‘Reg. Sess.
1074; Mont. Code 6S 94-5-102, 94-5-103, 94-5-105, 94-5-304

{as i by Mc . Hou. No. 643, Mont. Gen, Laws 1974) (1974):
Nev. Code € 200.¢ (3274); Okla, Stat., tit 11, $8 701.3,
703236 Fl. (O74); wyo. Stat. § 6-54 (197i). fe the new

liws Which provide a bifurented preeeecing to make this sey =
Getersinetion es to sentence, some elir inposition of sentence

\ . any } "1 ae sng ie ti a by the le iglature es

a. F “eo ite Or WMpusr: either a centence of death or ‘
amp? ent. Ga. CodeӤ 27-2534.1 (1973), as amended b;

Ko. 7 - Ga. 1973 Sess. Law at J62-172; Utah Crim Cacie €% rae
3-206, 76-5-202, 76-5-302, FO-3--207 (1974). Others of thes

Alabama,
Massachusetts,

Oregon,

authoriz-
Colorecou,

Michic
South

‘E:Th,

— en —— + or oe =

me ee

—a ee

———-—

bad

bw.

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at eee
+ c ¢
oes ‘
=
, | "VV, ‘
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tr)

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ati 4 ;

. are

wortTit2

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ir
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&O}!

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ney ifs

—— a ~ 7 - 5 - » \? ,
3 Veld Od adct Gs ral AaASSerpi pro. ‘ —s ‘
” e
in t! case ©O2 Convicr1io! for any of these four ofienses,
a _ . + f 4-4 ‘sf . - - ae ee oe 4 > ~ = - +4 “~— ; i. +. -
gait BLA ’ ’ ‘ ¥¢c 23 ere rs | —C) i ot Ot & os ao ’ 2? Ls ‘ — : 3
other stetes now have the mandatory death '
‘ _ D die =— ~~ a. > = & . & & b. mond. & oe os Sars
i, : . penalty and we believe i105 recention ¥ ili be
+e . sme Tar Sos Puce S . . 4. = . P
j a definitely harmful. Quite frequently, juries
' 2 h
Sexe 4 ~ 0? + ~ ~ - £4 o - -
refuse to convict for rape or first degree
t -. . “> —“ — + 4 + — -
mrder, because, from all the circufstances,
}
H hev ao hmeatlace @he dafar nt = 1+ woth
} . they Co not veiieve the defendant, althouch
‘ ” -
et sid &e- - ? £ 7 mhe V2 “4
oe . guilty, should.suffer death. he result 15
— sthtuhen «& - a-00 een cae . ? > : + *
that verdicts are retvrned hardly in harmony
with evidence. Our pieposal is already in

[. effect in respect to the crimes of burglary
r= - and arson. There is much testimony that it

Se

ti has proved beneficial in such cases. We think }

i the law can now be broadened to include ali

. . ‘

s it capital crimes."
'

'

{footnote continucd}

conclua

Norti: Ce
enre
cons t3 tt

; ¢
BPs
a4?
~
re

t
aia

peer

? in Waddell that, as amended in 1947 and 1949 and opera-
: ;
~ : a hee 35 : es . - . ;
pearly a quarter-century between 1949 and 1972, th i
’
'

. . a . r 2 ’ = po 2 ~ — : r in ’ =
rolina stututes inflictins; capital punishment for first °
- !
‘
irder, rape, first Geqree buralary and arson were un- '
}
‘
tional under Purman: Phree Justices of the court’ there- |
j
ld have held that the death penalties provided by North |
. al .
.
law on the dates of the Furman and Waddell ¢cecisions i
'
. - “ - - * * '
eticutsonaisy unenrorceabic then ond thenceforth until i
i
'
lenet) the enectmeat of new capital punishment legisla- ,

the Lat a a 4 sembly, Kut
. . ‘
‘ ~
. ‘ ‘ .
rt 4 ¢ é a ~
. i
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. . +
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= , C Late . @)
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-
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5 .
- . f oT Syree ‘ -4 y ¢ ’% re > Rive .
} ‘ ‘ I ‘ 4 ° ‘ F ded q- td
. i d tee 4 Oo ’ ‘ i «’
- P . 4-% .
4 » 4 -_ 4. as oe ms eai'e iat . a¢
c €y C 3 c we Cos iCGsS e« et Cee
; om >
.
> / y vy «€ Baiecwh De a 4 ° - - ‘ '
, ae ‘ et’ « ¢ pic ‘ 7 «“ Vue - 3 V6 Gioe itay F i‘
? f¢ 3 ore ranma
‘ S \ «ee ‘ 4 inj .
es? F : . e Ron ec MWe
e twe 2ses ianvolved pre $203 of New Jersey an
a «
4 M4 : ., = ’ . + +- e P.
Se Caroli) law whic eailowed capitaliy-charge acfendeant
4 — : ee | ; « ‘ o *} . ,
ae 4 c 3 , d ¢ . ‘ " = * €*33 Z a Te eine gif
‘2 . ’ . ‘ tee . e o a ha P .
. . 4% ;
L , 2 WwW Jerscy Or Gt Ly (3 Sout! CVEeroisnaej, ane Lh
o 4 ’ P . t - ° . . ° ; ; c
aiiré . « o 4 Aal ] ‘ « . “6 ~/ . io Paertta
ty fi ar. ‘ t cr- 20% e © 1S ;
2/V Je ana FO? v. Unite co af ’ ro 4 VewWe G >] 1968) .
¢ c : la; « ; es at & ap oil -_
Yne South Carolina Supreme Court in Tho: recocnizea the

incompatibility of its statutory cuilty-plea scheme with

the constitutional principle of Jeckscn, but held that the

{ ,
‘ \
Court attempted to Girtinguisn dacksen but held alternatively
that, if Jac r @ié invalidate New Jersey's non yult provision,
that provision rather than the death penalty would be renceres
Wirey ive. In both cares, then, the etate-corrt reect ton to
agecir3 c this Court invelidating a composite statutory dent }i-
4 eing procedure under which unknown numbers o% capita)
defendants 3 escaped the @cath pentlly while others hac unc
atiiut “ud ! + SG: Lene fand many sent) to theix deaths, v
to sever the escape clause, tacat it as though jt had neve:
‘ ‘s ‘ ¢ rare) : j wi? ; r We? Ys sti 4 4 la purposes, or
CO tho denied its benefits to dic. Im both cases, th
Court ’
r .- ° -
, - ~ os
= o e -
, .
o~
° - ~~ . —
-~ a 4
-* ’ - -
‘
.
- ~ a .
r - a a
r , .
'
.

we.

ee eee

°
*
-
4 -
° :
° {
; s .
e .
™ 4 ee | —a ones Stes
function remains a vitel office of the cruel-and-unusual puns:
G/ ,
‘ Pa |
3 . . , -~ 141 = 4 + oe fe mm 4 c ve Ls
meni clause today, although it certainly is not th; c elusive
o
?
17/
P o a 4 > ~ ’ in . m . . —
focus « the eleuse. As this Court pointed cut in Keo Vv.
. - ~~ 4° . ~*¢ Se eld ance * ; aces aa — _
i 4 : ; : Cleo g oi! U. Ss. St, 37 (1 - . ) , the 'ramrers were Cc. 4
we — Sane . | € ance 4 44 ep 47
‘ “> é thi € VOI nt «6S wie PO). e nstituted b ti
uld 3 imitate the conduct of arbitrary morerci
l P d
' , ? mas ’ as ¢ " : 5 : %
yy Cor yurie on of WOXC ¢ ec usual in the Eic
; ; -- is 5 ‘ ‘ ove t-ean 7 a - ey ett, gre
; d ¢ J | Dy C sf we L Ql) an .
° - ‘ - } .~* 3 . °
: >, Vv ni 3 i ¢ Wy yo lar and « F ao aO\
‘ ; ’ > y
‘ ; ! , Fe P Li} ri ? : ’ ©. Je ‘ LI t LPreVuUJsa uv’,
, e
Vs }« /
‘ > > Ce : = ati
‘ , é . 7 a | > sy yy" ©
§ i ‘ rieit ‘ ‘ cri ribs © 3 ay © puUHDVeT. tn
$ ‘
fs ¢ | . s 7 -°* - 7 P T1aY*: S| :
“se ‘ ‘ o > 4 « _ c . ' e
rf d
hd . - ‘ . ‘ , .
5 ‘ = ? ‘
i) - ~- r - - - . é - ‘
.
e -~ ~~ . oot 4 “*a-
r' 4 ' $ ‘ ‘ : f mot Cl e¢ Li cis e eactora cE Fy Cs
, *
ali re i > 3 q OF Le .
: " ‘ , . ~~ a 2” © bh
7 1} t« ‘SP eee » Oa ae)
i 4 5 £ fs. eye!
7 e e e co ‘ 4 Bo u24¢ a 2 as “ P p
t from whiter cou , our Wr rudence if
' P ‘ : —- oe
te ¢ t ‘ . is& a Vong © nrc usst 4 re-
Cu v th ucsicgned to secure
) 5 -
the: sui} . agi t the arDit ry action
of the Crown & Sluace him under the pro-
ec t Th, \ > Ge t'¢ u¢
: ¢ — a 44
Pe evulvetenec te Lae é @) the i711.
. 4 *>* 1 + 4 , ‘ » Z
1, » West Virol aes uo. &. 24,
i an sor
' : Br { “> i
i foe oy va ig pag ae pene : ate , , eee i i
-s =
;
uf) , .
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y ;
:
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. ** °
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ee
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——— - =

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processes can hardly be thought constitutionally dispositive. ;

. }

‘

. - . ~ :

See Commo th v. A Juvenile, 1972 Mass. Adv. Sh. 1199, 309 i

3")/

21

N.E.2a 434 (1973)¢ Whet is important is theixr result: a i

lawless end capricious dispensation of lafe and death, a1 !

’

which 6eath sentences are “freakishly imposed.* Purmtn_v '

- ‘ ‘

C ‘3 o, at 330 (Mr. Justice Stewart, concurring). /

In considering whether the Waddell procedures comply wit!

/

Pur ox whether the North Carolina Supreme: Court hes merely /

@icp) ' the focus, lowered the Visibility, diffused th« i
Tes ¢ We ae i Yo ‘ na thie ‘ ib , inc Cais a the prea ictable cil bi : rs i

; ; : ‘ eer a P !

ness and discramination of persistii Ciscretionary processe: }

26 ; i

eos '

fox ti aca! istration of the ceath penalty, this Couxt will

'

_—_—

t -
. © é
far
‘

;

‘Ne
‘ .
o%

: PT

co4
| fr
ert

A SOW J
ee? .
»
é
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,
F
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’
“—
al 7
“oe 4
}
¢ °
Cs) 4
,
5; wes
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2 @
:
,
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=,
ri
5 - ~i- ° = Ana a é 4 - * . a ™
RCEMING Separate eratistics for persons convicted of First
r : > ’ = - . £2 a b — - : .
Wve ec bi yy @nG ofecon 2EOreE€ Bure) tl J. The B: tao tf pc
+7 . . - - - * ~ ‘ - : .
Os 1 aoe OF} eyes: 1,Vo! s oe at 2ao reveals’ that in 195: »
therm: were £7 convictions for Pirst Degree Borglary (with }
at oe ‘cr ‘4 ’ ot » Dive .
Ov: 1Eposition: £ Firet Degrec, Rurglary charges); in 195
there were 33 convictions for this crime, with 10 "Other Disoc
tions,” 3bid.? an 1954, there were 35 convictions and 26 "Ot
“2 ais e {+4 ~ a¢
- PY . LLLIOns ’ 4.2 3 °¢ Vol - a] L wd é 7 . ad
~7 - °C’ ratovs Ft Stteet ht et ee ea 2 - * *¥)> «7
4 PEPERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT

JUSTIC!

FBI Usii

noG| nece

avs, - -
saf The

Gaecree murccr and

ON Apper
New Hano

‘gree burg

dury during the past»ycear of Weddell's imple-

State where there were nzbout forty convictions
30/
for this crime in the recent past, and where 39, 710

3Y/

jes and houscbreakines" were reported in 1972. The
on is inescapable that Solicitors have simply not re-

irst degree burglary es a crime des

te 54 .4 * 4 4 Fes, ‘ ; teh ie Ae }
anitiat farst cegree hurglary prosecutions despite
adence of this crane.
c no death penalty case, where the conviction and

were vacatec end a new trial ordered because of pro

CRIM IN THLE UNITED STATES 31972 ae 1073) at 74. The
form Crime Report statistics reflec

7 = .
r r ~
Convicts

sot cee 7 aan os Re PS
cns, anc the 2 porter : burglar ten ann nousebyee! BS 5”
Pg ae ee ae ce ke 4 B j a ‘err
sSarilv eqcuivalent to the total number of statutory Fi rst

in the State Guring 1972.

conviction of Isaac Monk, also found guilty of first

sentenced to dezth in this

1 in the North Carclina Supreme Court

-

Monk Ve Sta ce

ver County Superior Ct., No. 73-Cr-6476 (August 24, 1973)

reported crimes, not

are

incident,’ is pending

ee me

© oe $Oet ee ees we ee

oo

———0 se

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—— ae oe ee

*

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ti " ADMIN STRAT iON OF JUSTICE, REPORT (THE. a
; i CHALLENCE OF CRIME IN A PRER SOCIETY) _ a ie
4 i ; {(1967),-p. 143. : .
ithe extent tg which this is tree appears vpon inspecting of ihe
phis. ty relink}. figares on executions watnteined by the Peder -* ag
HRuresa of Prisons since 1930. Qf the 3,859 persons executed ©
bt RPE civil authority iu the Uni Led States betweeh 1935 and ag
"ouly 161 were exctuted during the 1966's and only 25 were exe
ad tom 1963. ho

io one has been executed in the United States
1957. UNITED £77-7xS. DEPARTMENT OF JUSTICE, BUREAU OF HIS
. |. NATIONAL PRISONER STATISTICS, Bulletin NO. 46, Ceopiti

i 20-1976 (August 1970). ody ‘5 a5
'S1/ avetice Douglas quoted the conclusion | ef the
, Comsission on Law Enforcement and . LSet
i“"the death sentence is €isproportionately impor
|on the poor, the Negro, and the renbers Of t
‘ \Purman, gypray at p. 249. See myers os
Justice Stewart, at p. wee = us ic
Justice Marshall pera 7 n

about capital punii nent. deed,

execution is ATE

b
Se)

—— Ps
ee pet

sl

eee ee 4 ee

a me ee oS

§, Petition for Writ of
to the Supreme Court
lilman v. Plorida,

-ilead March il, 1975).

oe = oe wee oe. ae

the aceused of a ‘wry that is “truly representative of the

community,” Smith v. Texas, supra; see Carter v. Greene County

Jury Comission, 396 U.S. 320, 330 (1970) -- is violative of

petitioner's right to equal protection and due process.

Servples Against Copital Punishnent Deprived
Petitioner of his Sixth Amendyent kight to a

Renrese amt “af ive Jury. ‘

This case also presents the signed icant constitutional
question whether any death qualification of a ‘jury
is permissible in the wake of the incorporation of the Sixth
Anendmeant's ‘jury-trial gvyarantece into the Fourteenth. The -

Witherepoen decirion wes handed down only a few days after

Pancen ve Temisionn, 397 U.S. 145 (196R): Witherspoon's trial,

of course, long pre-dated Duncan; and the cases in which the

Court has since applied Witherspoon have all been pre-Duncan
i’

5 ‘
cases or cases in which no Sixth Amendment challenge ‘to the

practice of death qualification was mdc. See Boulden v. Nolnan,

394 U.S. 478 (1969); Maxwell v. Rishov, 398 U.S. 262 (1970);

and the twenty-three cascs reversed on authority of Witherspoon

in 403 U.S. at 946-948 (1971). Prior to the effective date or

Duncan (noe DeStefano v, Woods, 392 U.S. 631 (1968)), the only

————— — oer -

~s -0e-

federal constitutional rights enjoyed by a state criminal defend-

ant in connection with the selection of his trial jury were thos

vouchsafed by the Dve Process and Equal Protection Clauses of

the Fourteenth Amendinent. The Court had then recognized the

obligation of the States not to exclude racial minority groups

from the petit jury, see Smith v. Yexacs, 321 U.S. 128 (1940);

Hernandez _v. Vexes, 347 U.S. 475 (1954), but had not yet imposed

upon state criminal trials the more exacting obligations of the

with Taylor v. Lounisian

defendant to “a petit jury [crawn] from a representative cross

scetion of the community." Taylor v. Lovisiana, supra, 43 U.S.L.W

334°
*weh 3

hat

Wikiians y

b02-504 (1972) (opinion of Mr. Justice Maz shail). ’

; = ae oe eo 0 oe

—
——

_—-

ixth Amendment. Compare Hoyt_v. Florida, 368 U.S. 57 (1961), :

, 43 U.S.L.W. 4167 (U.S. Jan. 21, 1975).:

i

Since Duncan, however, the Court has recognized that the !
ey

th Amendment guarantee of jury trial entitles a state criminal |

at’° 4169, In Teyler -- which marks only the latest .exemplifica~
66/ |
tion of this principle -- the Court held that a male criminal
t
Retwoen the dates of Duncan and MWaylor, the Court clearly ;
caid several times that the selection of petit jurors from a
eresontative eross section of the comaunity was an essential
requirement of the Sixth Amendment. In Carter v. Greene County
yy COMAAN SION, 204 U.S. 320, 330 (1970), the Court suggcstca
such a requirement was inposed vpon tie States by Duncan,
stating that the "very idea of a jury" was that of a “body
truly representative of the community'"” (quoting Smith v. Vexas,
3.5, 120, 130 (1940) and that jury lists must "'rcasonaply
reflect a cross-section of the population, '" 396 U.S. at 332 '
(guoting brown vy. Allen, 344 U.S. 443, 474 (1953)). See also
Vicrida, 399 U.S. 78, 100 (1970); Apodacs v. Oredon, |

W.8. 405, 410 (1972); and_sce Peters v. Kitt, 407 U.S. 493,

oo aoe - oa 2-0 co emme 1 © Oa renee" *

=» 93 «

defendant had standing to contest the exclusion of women from

his trial jury without the necessity of demonstrating any

specific prejudice because the exclusion of a distinctive popula-

tion group “deprived him of the kind of fact finder to which he

was constitutionally entitled." Id. at 4168.

Taylor v. Louisiana, supra, 43 U.S.L.W. at 4170.

as fundamental to the jury trial guaranteed by ;
the Sixth Amendment and are convinced that the

GT/

"We accept the fair cross-section requirement

requirement has solid foundation. The purpose
of w jury is to guard ageinst exercise of
arbitrary power -- to mike available the common-

sense judgment of the community 2s a hedge against
the overwealous or wistaken prosecutor and in '
preference to the professional or perhaps over-
conditioned or biused response of a judge .«. '
This prophylactic vehicle is not provided if the
jury pool is made up of only special segments of

the populace or if large distinctive groups are

excluded from the pool. Community participation i
in the administration of the criminal law, more- :
over, is not only consistent with our democratic
heritage but is also critical to public confidence |;
in th fairness of the criminal justice system.
Restricting jury service to only special groups — j
or excluding identifiable segments playing major ;
roles in the comnunity cannot be squared with the

constitutional concept of jury trial. Trial by

jury presupposes a jury drawn from a pool broadly
representative of the community as well as impartial
in a specific case... . The broad representative !
character of the jury should be maintained, partly |
as assurance of a diffused impartiality and partly
because shuring in the administration of justice is
a phase of civic responsibility."

As the Court has progressively clarified the nature
of the "jury" guaranteed in state criminal proceedings by the
Sixth iciialiaenina the cross section requirement has become
increasingly essential and the permissibility of death qualifica~,

aoe - — --

tion has therefore become increasingly suspect. Williams ~v.

r

Floyida, 399 U.S. 76 (1970), held that a jury of twelve was not

an indispensable part of the Sixth Awendmont right: all the

Sixth Amen?’ment required was thatethe jury be large enough "to f
provide wa iaixr possibility for obtaining a representative
cross-section of she community .. . “ Jd. at 100. This was so
because the eritical function of the jury was to. provide u

citizen group, representative of the commurity, =“ would

serve to check possible Covermment oppression of criminal

cefendants. “{Vhe essential feature of a jury obviously lies

in the interposition between the accused and his accuser of
é ; .

H

!

'

'

{

'

: '
the common sense judament of a group of laymen, and in the |
;
community participation and shared responsibility that resulis
. |

frow that group's Cetermination of guilt or innocence." Ibid.
In Apodace v. Oregon, 406 U.S, 404, 410 (1.972), the Court
i

;

similarly ruled that the Sixth Amendient did not require convic-
tion by unanimovs verdict in State criminal cases, sinee the
jury's funct ion could be served without unanimity "as long as '
it consist P of a group of layin :epresentative of a cross
section of the community."

The principle that no identifiable group may be system-

atically excluded from jury panels is not Vimited to groups — 4

defined by race, of course. See Taylor _v. Louisiana, Supra;

—_- --o--— =~

e-em ome eee

=_—_— ————— eS eS = ee
s

White v. Crook, 251 F. Supp. 401, 408-409 (M.D. Ala. 1966)
(exclusion of women); Labat_v. Kennett, 365 F.2d 698 (CAS 1966),
cert. denied, 386 U.S. 99) (1967) (exclusion of wage earners);

State _v. Schowswraw, 240 Md. 121, 213 A.2d 475 (1965) (exclusion |}

of agnostics and atheists). ,

"Whether such a group exists within a

community is a question of fact. When the '
existence of a Gistinet class is demonstrated,
and it is further shown that the laws, as written ;

or as applitd, single out thgt class for different
trettment not bas: 2 on some reasonzble classifica:

tion, the quarantees of the Constitution have
been violate."

Hevnander ve. Texas, 347 U.S. 475, 478 (1954). As the Court

reiterated in Apodaca v. Oregon, supra, 406 U.S. at 413, th

Cinth Amendrent forbids “systenstiec enelvsion of identifinbls

— mee | ee ee es eee

segments of tbe community trom jury paneis,” because ali Groups

have “the right to participate in the overall legal processcés

Ne ee

by witch criminal guilt and innocence are determined.” And the
Court plainly recognized in Witherspoon that jurors with scruples
aquinst the imposition of the death penalty form a distinctive,

coherent and gizeabl © group in most communities Lrom which juries
68/ ce
are scleeted: 4

ee ee ee oe ee ee ee ee ee ce

68/ See alro, e-c., Bronson, On_ the Conviction, Proneness anc,
Representat jvenens of the Deut h-Qual i tic d.Jury: An binp irjcal
Study of Coloracda Veniromen, 62 U. COL. L. REV. 1 (1970);
Vidmar & Llisworth, Puplic Opinion and the Death Penalty, 26

STAN. L. REV. 1245 (1974).

——-— +

o

Since a venireman was excluded from petitioner's post-

Duncan trial jury on the sole ground of her conscientious scruples

against the death penalty, the issue is presented here whether
such an exclusion .may be justified under the exacting standards
« : !
of the Sixth Awendwent. Admittedly, a defendant cannot object
under the Sixth Anevdment to the exclusion for cause of venire-
men who are related to him or who have a monetary ipterest in !

% ‘

the outcome of his suit, because of the @anger that such venire- |

.
. . . . * . ° !
mon, af selected as jurors, would wring to the jury's delibera-

——

tions attituces that.are inconsistent with their proper duty as

———e ew eee @ Hee ee een eee

jurors to determine the trath inpartially. Under a statutory

¢ oe
sehome like Florida's,however, it is the rightful duty of the

jury to Gxupress couwmnily attitudes about punishment: “one of
the most important funetions any jury can perform [in the
adninistyetion of such a statute)-. . . . is to maintain a

link between contemporary community values and the saa system

-- a link without which the determination of punishment’ could

hardly reflect ‘the wolving standards of decency that mark the

-——_— Ft ----- oe

en

progress of a maturing society. Withergpoon ve. T)linois, surra,

ie

at 520 n.15 (quoting Trop. v. Dulles, 356 U.S. 86, 101 (1955)).

Indecd, the Florida capital punishment statute implicitly coir
t! i

oe ee ee

templates the expression of a broad range of community sentiment ,
regarding punishrent, since it provides for oa recommendation of
es H
sentence by_a “majority of the jury," Pla. Stat. §921.141(3), and
‘
allows the trial judge to overrule this "recomuendation,” jbid.

It would thus have been imposrible for Venireman Miller to have
8

"hung" the jury on the issve ef sentence (assuming even that she

» HI <

te

adamantly refused to vote in favor of the death sentence -- an

assumption not justified by the voir dire record, see pp. 61-G7,

supra); and the vote of a majority of the jury to recommend

lije imprisonment would itself not have precluded the trial

’ | 69/ ;
judge's imposition of a death sentence. The Court should
JUag }

«

determing theretore, whethgx in this getting a criminal defendant

o
i

35 entitled by the Sixth Awendwent to a jury panel whigh reflects

t

which veniremen such as Mrs. Milier cannot be excluded fo

cause Simply on account of their views.regarding capital punish-
3
m nt .
,
‘
.
~

6°/ ry, recawuendations of mercy have not forestalled the
imposition of the death sentence in at least 16 cases. Se

note lo, SUprire

- Vi -

: fair cross rection of commnity sentiment -- a panel from

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2051%3A1. Public record. Not legal advice.