Petition — Vinson v. North Carolina
Supreme Court brief1976
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Constitutional and Statutory Provisions Involved............... 2
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How The Federal Questions Were Raised and Decided Below........
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I. The Court Should Grant Certiorari to Consider
II.
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 Amencment to the Constitution of the
gg eee ee ee rer TTT rrr TTT re
The Court Should Grant Certiorari to Consider
Whether the Exclusion for Cause of Veniremen on
the Grounds of Their Expressed Attitudes Toward
the Death Penalty Violated Petitioner's Rights
Under the Sixth or Fourteenth Amendment to the
Comstitutton of the GmitGd SORCES. ..cnccsccccccceccscees
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Appendix A: State v. Vinson, N.C. » 215 S.E. 2d
P-ccecdcchl dies selbipamadevebesatesoeceu’ la
Appendix B: Pp. 11-51, Petition for Writ of Certiorari to
the Suprene Court of North Carolina,
Dillard v. North Carolina, No. 73-6875
SOS EE WR sv wa ncandcndnenacbeneuacens. 1b
Appendix C: Pp. 19-22, Petition for Write of Certiorari to
the Supreme Court of North Carolina,
Noell v. North Carolina, No. 73-6876
bog, £ Ri rrr rrrer lc
Appendix D: Pp. 14-20 and 1d-7d, Petition for Writ of
State
State
State
State \
State
State
State
State
State
Certiorari to the Supreme Court of North Carolina
Lampkins v. North Carolina, 75-_
( p MER sou osanenswesscotewasanbanedes Id
TABLE OF CASES
. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975)......... 7
. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974)............ 8
. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974)........ 8
. dJarrette, 284 N.C. 625, 202 S.£.2d 721 (1974) ........ 4
- Monk, 2866 N.C. 509, 212 S.E.2d 125 (1975). .....c.ceeee 8
» Week, BR? B.C. B7, FUD:S.E.38 FAS CIATED ciccceccccsss 7
. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973)........... 2.3
. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974)............. 8
. Williams, N.C. ___, 212 S.£.2d 113 (1975)........ 3,4
Statutes:
28 U.S.C. $1257(3) sad st pe dadgsesanaenenisets whganenseesones
N.C. Gen. Stat.
14-21 (repl. vol. 19G9) cr ccccccccccccccccecs
14-21 (repl. vol. SUPP. )...eeeeereeeeereeeees
15-187 (rept. VO]. 1965 ....cceeceeeeeeeeeees
15-188 (repl. vol. 1965).......e cece eeeeeeees
IN THE
SUPREME COURT OF THE UNITED STATES
TERM, 1975
NO. 75-
ERNEST JOHN VINSON,
Petitioner,
8.0
STATE OF NORTH CAROLINA,
Respondent.
ae oe
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
Petitioner prays that a writ of certiorari issue to review the
judament of the Supreme Court of the State of North Carolina entered on
June 6, 1975.
CITATION TO OPINION
BELON
The opinion of the Supreme Court of North Carolina is reported at
N.C. i, 2185 S.E. 2d 69 (1975), and is set out in Appendix A hereto,
pp. la-14a, infra.
JURISDICTION
The Judgment of the Supreme Court of North Caroline was entered on
June 6, 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.
QUESTIONS PRESENTED
1. Whether the imposition and carrying out of the sentence of death
for the crime of cape under’ the law of North Carolina violates the Eighth
or Fourteenth Amendment to the Constitution of the United States?
II. Whether the exclusion for cause of 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?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. This ca.e involves the Sixth, Eighth, and Fourteenth Amendments
to the Constitution of the United States.
2. This case also involves the following provisions of the Genera]
Statutes of North Carolina:
N.C. Gen. Stat. 914-21 (repl. vol. 1969): e ,
"Punishment for rape.--Every person who is convicted
of ravishing and carnally knowing any female of the
age of twelve years or more by force and against her
will, or who is convicted of unlawfully and carnally
knowing and abusing any femaie child under the age of
twelve years, shall suifer death: Provided, if the
jury shal! so recommend at the time of rendering its
verdict in open court, the punishment shall be impris-
onment 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 qas.--Death by
electrocution under sentence of law is hereby abolished
and death by the administration of lethal ges substituted
therefor." |
N.C. Gen. Stat. §15-188 (repl. vol. 1975):
"Manner and place of execution.+-The mode of executing
a death sentence must imevery case be by causing the
convict or felon tu inhale lethal aas of sufficient
quantity to cause death, and the administration of such
lethal 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
wee one ee ——— eee ee
1/ As construed in State v. Waddell, 282 N.C. 431, 194 S.£.2d 19 (1973).
= —
the superintendent 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 tv the Governor and Council of State,
the necessary appliancus for the infliction of the punish-
ment of death in accordance with the requirements 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 June 6, 1975, affirming
petitioner's conviction and death sentence. Petitioner, Ernest John Vinson,
a black man, was sentenced to die on March 27, 1974, in the Wilson County
Superior Court of North Carolina upon conviction for the rape of Norina
Coleen Ferquson, a white woman, 2/
ee ee —
,
2/ Petitioner's sentence of death was imposed under N.C. Gen. Stat. ie
(rep]. vol. 1969), as construed in State y. Waddell, 282 N.C. 431, 19
S.E.2d 19 (January 18, 1973). The North Carolina Legislature subsequently
enacted a statute, $.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. 914-2) (1974
supp.), provides:
“Rape; punishment in the first and second deqree. --
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 ard abuses e@ny
female child under the age of 12 years, shall be quilty of
fape, and upon conviction, shall be punished as follows:
(a) First-Deqree Rape--
(1) If the person quilty of rape is more than
16 years of age, and the rape victim is a
virtuous female child under the age of 12 yeaks,
the punishment shall be death; or
(2) If the person quilty of rape is more than 16
years of age, and the rape victim had her resist-
ance 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 discre-
tion of the court.”
However, the Supreme Court of North Carolina has expressly held that
the enactment of this statute did not affect death sentences for rape
Imposed under the State v. Waddell procedure. In State v. Williams, N.C.
om Ses
212 S.E. 2d 113 (1975), the Court affirmed a death sentence for “rape”
» Sa
ee oe ee
CANN TeOoMtnS
AND FARRIS
ATTORNEY. AT Law |
1% fete ve © FOL en
|
Norma Coleen Ferguson testified that on December 5, 1973, while alone
2/ cont'd.
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-dearee rape. The Court ruled that
the 1974 rape sttute was nowise retroactive:
"In clear, explicit terms the Leqislature provided
‘This act shall become *** applicable to all offenses
hereafter committed.’ Had these words been omitted, the
Act would, nevertheless, apply to all offenses committed
after its effective date, & 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, tt beina presumed
that the Legislature did not intend any of its provisions
to be suplusage . .. . We construe the provision in the
1974 Act, ‘This act shal] 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£.2d at 119-120. Chief Justice Sharp, 212 S.E. 2d at 123-125, 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 invali-
date 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 congider whether the evidence would have sustained only a non-capita}
second deqree rape conviction in a post-April 8, 1974 case. Chief Justice
Sharp dissented from this ruling for reasons stated in the State v. Jarrette
dissent. Mr. Justice Copeland and “Mr. Justice Exum dissented from this
ruling for the reasons stated in the State v. Williams dissents. 215 S.E.2d
at 73; App. A, infra, at 14a. The three dissenting judges voted to remand
for imposition of a sentence of life imprisonment.
On June 24, 1975, the North Carolina General Assembly enacted H.8. 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 defencant 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 anneal), make such independent
investigation as he deems necessary to determine the age of
the defendant or of the rape victim, and hear arguments or
accept briefs in behalf of tne defendant and the State.
(c) Thereupon, the judge shal! 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 Sue it the defendant’ s case to
-_——2—— + o&- < - nares
—
at her place of employment, Fiberqlass and Sports, in Wilson, North Carolina,
the Defendant entered, pointed a qun at her head, threatened to kill? her and
told her to “aet naked." She then testified that the Defendant penetrated
her and that at no time did she scream, kick, scratch or bite him, nor
did she give him permission. She further testified that she could smel}
alcohol on Ernest John Vinson and that he then forced her to swallow a handful
of diet pills. Norma Coleen Ferquson testified that someone entered the
store and left while this was going on and that she had a telephone conver-
sation with a supplier during this time. She further testified that Vinson
took the kevs to her car, left and that she then called the police. Thomas
Edwards then testified that, on December 5, 1973, he was driving a truck
for Roadway Express and that his delivery was to Fiberglass and Sports at
about one p.m. He testified that he went in the front door of the business,
stayed about thirty seconds and heard a lady's voice in the office to the
left, which he assumed to be a response to a telephone call. he testified
that he then left, drove back to his office and got his supervisor to call
Fiberglass and Sports and that he said that the woman sounded all right. He
further testified that he then went back to Fiberglass and Sports, entered
the building, and, although he could be mistaken, he saw and conversed with
the Defendant for a period of eight to ten seconds. He further testified
that he then went around to the back door, waited about five minutes, then
went to a nearby business and called his supervisor again. When he returned
2/ cont'd.
a jury on the charge of first deqree rape
as defined by G.S. 14-21(a), had the date
of the rape been after April 8, 1974?
(d) 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 judqe
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
resentenced as if he had been convicted of a second degree
rape for a rape conmitted after April 8, 1974." (Enphasis
added).
o@<
\
FARRIS THOMAS
AND FARHIS
ATTORNEYS AT Law
**. WOMTH CAROLINA
to Fiberalass and Sports the police and rescue squad were both there.
Detective Johnny Moore, of the City of Wilson Police Department testified .
that on December 5, 1973, he went to Fiberqlass and Sports and that Norma
Ferguson made a statement to him that she had been raped by a black man q
and that the man had made her take a handful of pills that she had in her
pocketbook. He further testified that Norma Ferguson described the man as
being young, tall, clean shaven with very uncombed and unkept hair, and , |
that the man had used a pistol. Detective Moore then testified that Thomas |
Edwards was there and that he had seen a black man but did not give too good |
a description of him; nowever, that the person looked very intelligent.
He then testified that that night he carried approximately twelve photographs
to Mr. Edwards, all of black males, but that the Defendant was not included
in those photographs. Mr. Moore then testified that as a result of speaking
with Dr. Kirkland, he waited three days, then interviewed Norma Ferguson |
and that she told him that when she was alone at Fiberglass and Sports on |
December 5, 1973, the Defendant entered with a pistol, forced her into the |
beck room, told her to “get naked" and had sexual intercourse with her while
threatening to kill her. Detective Moore further testified that the
Defendant then made Norma Ferguson eat some pills from her pocketbook and
that on that day the Defendant was under arrest on other charges and was in
the Wilson County jail. Detective Moore further testified that he took
a
twelve photographs to Norma Ferguson and that she identified a photograph
of Ernest John Vinson by saying, "That's the man." On cross-examination it
was brought out that Norma Ferguson looked through the photographs twice
prior to making an identification. John A. Kirkland, M.D., then testified
for the State that on December 5, 1973, in his office at the Wilson Clinic,
he was asked to examine Norma Coleen Ferquson for the possibility of rape
and that, based upon his examination and questions to her, he discovered
the presence of active sperm in her vagina. He further testified that she
told him tnat a black man entered the place where she worked and, at gunpoint, |
forced her to perform an unnatural sex act: that he then raped her, and that
-~
he oe forced her to take some capsules, and left, stealing her car.
Dr. Kirkland then testified that she was hospitalized in the intensive care
unit overnight and released after twenty-four hours, and that he found no
physical evidence of rape other than the fact that she had had recent inter-
course. The Defendant then offered the testimony of Eugene D. Maynard, M.D.,
who testified that he is a psychiatrist and was formerly regional director
of Forensic Psychiatry at Cherry Hospital. Dr. Maynard testified that he
examined and observed the Defendant in December 1973, and that as a result
of a series of tests, he formed the diagnosis that the patient was suffering
from mental retardation with a mental age of approximately fifteen or
Sixteen years, Crug dependence of all known varieties of drugs, and that he
had anti-social personality. Dr. Maynard further testified that the
Defendant had been confined in the State Hospital on prior occasions and
that the anti-social personality he referred to is what was formerly known
as a psychopathic personality.
At the conclusion of the evidence, the trial court charged the jury
that it could find Petitioner quilty of rape or not quilty. The jury returned
a verdict of quilty of rape and the court thereupon sentenced the Petitioner
to death.
On June 6, 1975, the Supreme Court of North Carolina, with three judges
dissenting in regard to the death penalty, affirmed Petitioner's conviction
and death sentence.
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
1. At Petitioner's Assiqnment of Error Number 8 contended that there
was error for that imposit‘on of the death penalty in this case is cruel
and unusual suntshemat. The Supreme Court of North Carolina rejected this
claim:
“Finally, Defendant contends that imposition of the
death penalty in this case constitutes cruel and unusual
punishment. This contention has heretofore been
considered and determined to be without merit in various
cases. State v. Vick, 287 N.C. 37, 213 S.E. 2d 335 (1975);
State v. Armstrong, 287 N.C. 60, 212 S.E. 2d 894 (1975),
and cases cited therein. Therefore, Defendant's Eighth
Assignment based on this contention is overruled."
ts
FARRIS THOMAS
AND FAKHIS
ATTORNEY.
“On, WORTH
oy LAW
cawoima jf
State v. Vinson, _N.C. __, 212 S.E. 24 69 at 72, 73 (1975);
App. A, infra, at 13a, 14a. |
2. Petitioner's Grouping and Assignments of Error in the record on
appeal assigned as error the excusing for cause of prospective jurors who:
“In response to questions by the Solicitor and the
Court as to whether the juror might return a verdict of
quilty in any case in which a verdict of guilty might
result in the imposition of the death penalty, she stated
that she would not.”
ASSIGNMENT OF ERROR NO. 1
Exception No. 1 (R p 5)
The Supreme Court of North Carolina ruled:
“There is no merit in this Assignment. The juror was
properly excused for cause. State v. Monk, 286 N.C. 509,
212 S.E. 2d 125 (1975); State v. Ward, 286 N.C. 304,
210 S.E. 2d 407 (1974); State v. Honeyoutt, 285 N.C. 174,
203 S.E. 2d 844 (1974); State v. Crowder, 285 N.C. 42,
203 S.£. 2d 38 (1974).
REASONS FOR GRANTING THE WRIT
1. 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 AMCNOMENT TO THE CONSTITUTION OF
THE UNITED STATES.
In order to avoid burdening the Court with lengthy and repetitious
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 11,
1974), at 11-51 (attached as Aopendix 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 11, 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.
1]. THE COURT S1OULD GRANT CERTIORARI TO CONSIDER
WHETHER THE EXCLUSION FOR CAUSE OF VENIREMEN
ON THE GROUNDS OF THEIR EXPRESSED ATTITUDE
TOWARD THE DEATH PENALTY VIOLATED PETITIONER'S
RIGHTS UNDER THE SIXTH OR FOURTEENTH AMENDMENT
TO THE CONSTITUTION OF THE UNITED STATES.
FARRIS THOMAS
AND FARRIS
ATTOMNEYS AT Law
“% NORTH CAROLINA
In order to avoid burdening the Court with length and repetitious
matter, Petitioner adopts the "Reasons for Granting the Writ" section
of the Petition for Writ of Certiorari to the Supreme Court of North
Carolina, Lampkins v. North Carolina, No. 75- ___ (filed eer
1975), at 14-20 and Id-7d (attached as Appendix D, infra).
CONCLUSTON
——— oe oe
Petitioner prays that the Petition for a Writ of Certiorari be
granted.
RESPECTFULLY SUBMITTED,
Weta C2 Levies
Robert A. Farris
FARRIS, THOMAS AND FARRIS
Post Office Box 817
Wilson, North Carnlina 27893
(919) 291-5945
Appendi x A
State v. Vinson, a %
215 S.E.2d 60 (1975).
60 Ne 215
to this, defendant himeetf testified both
witys
In Cooper the defendant cid not testify
For proof that he killed bos vietoms after
premeditation and deliberation, the State
had to rely upon crrenmstantial evidence
Since all the evidence tended to show that
Cooper was a chron sufferer from pora-
noid schizophrenia and subject to hallucina
tions and delusions, he contended
that
mental disease was for the jury's considera-
in my
view, correetls the evidence of his
tion in determining whether the State had
proved beyond a reasonable doubt the es-
sential eloments of murder in the first de-
pree, i e«, that he had actually formed a
specific intent to kill his wife and children
and had taken their lives after deliberating
and premeditating their deaths
The dissent in Cooper was not based on a
doctrine of diminished or partial responsi-
bolity
only for the crime committed
213 S.F 2d 423
Its thesis was full responsibility, but
Id. at 594,
In this case, on the issue of masantly, the
judyre the jury follows: “I
charge that if you are satisfied from the
evidence that the defendant, at the time of
the alleged crime,
as
charged
and as a result of mental
disease or defect, either did not know the
nature and quality of his act, or did not
know that it was wrong, he would be not
guilty.”
Obviously this charge assumes that de-
fendi#nt killed his father, a fact which, in
the absence of a judicial admission, t
State must prove beyond a reasonable
doubt. The pitfall of such an assumption
lies in wait for every trial judge who
charges the jury in a case where insanity is
pleaded as a complete defense unless the
first issue submitted to the jury is whether
the defendant killed the deceased, This is a
problem to which I called attention in the
dissent in State v. Cooper, supra, at 589
590, 213 S.B.2d at 82
however, I] think the error could not have
In the instant case,
prejudiced defendant
UTH EASTERN KEPORTER, 2d SERIES
COVELAND, 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, 437, 2°2
S.B.2d 113, 122 (1975).
EXUM, Justice, dissents from that por-
tion of the majority opinion which affirms
the death sentence and votes to remand thea
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, 439, 212 S.B.2d 113, 121
(1975), other than those relating to the ef-
fect of Section 8 of Chapter 1201 of the
1973 Session Laws.
STATE of North Carolina
v.
Ernest John VINSON.
No. 48.
Supreme Court of North Carolina.
June 6, 1975.
Defendant wa’ convicted before the
Superior Court, Wilson County, Robert D.
Rouse, Jr, J., of rape, and he appealed.
The Supreme Court, Huskins, J., held that
actions of trial judge in directing nine jur-
ors, whose names had been drawn by depu-
ty sheriff rather than by clerk, to be re-
turned to panel with jury selection to begin
anew with both defense and prosecution to
have statutorily allotted challenges did not
prejudice defendant, that exclusion of cer-
tain questions asked prospective jurors on
voir dire examination by defendant was not
error, that testimony of psychiatrist as to
statements allegedly made by defendant
that he had no knowledge of crime of rape
[a]
“—
STATE »
VINSON NC 6]
e Che as TiS S51 2000
was inadmissible hearsay, that defendant's
motion for nonsuit wis property overruled,
that mostructions suffivently related law of
ray to evidence presented, that ovidence
was insuffierent to pequere charge on insam
ty or lack of mental capacity, and that
imposition of death penalty did not consti
tute cruel and unusual punishment
No error
Sharp, C. J, and Copeland and Exum,
JJ, filed opinions dresenting in part
1. Jury o> 108
Prospective juror who stated on her
voir dire examination that under no circum-
stances and regardless of evidence would
she return verdict of guilty if it meant
imposition of death penalty was properly
excused for cause in prosecution for rape.
2. Jury 791)
Statute prescribing procedure for
drawing panel of jurors from jury box at
least 30 days prior to court session in which
they shall serve had no application to action
of trial court in directing nine jurors, whose
names had been drawn by deputy sheriff
rather than by clerk to determine order for
interrogation concerning fitness to serve as
jurors, to be returned to panel with jury
selection to begin anew. GS. § 95
3. Criminal Law o= 1166.16
Action of trial judge in directing nine
jurors, whose nar had been drawn by
deputy shenff rather than by clerk to de-
termine order of interrogation concerning
fitness to serve purers, to be returned to
pane!, names of which had becn drawn hy
clerk or his assistant court depuly as re
quired by statute, with jury selection to
bn yin anew Pesulted in no prejudice to the
defendant. GS § 45
4. Criminal Law ® 1166 16
Tria! judges a tien in dbreet npr mine
jurors, Whose names had then drawn by
Heputy heriff rather in by clerk to de-
termine order of ipterr pris iets, Loe fitre + as
-
jurors, to be returned to pane with jury
selection to began anew with both defense
and prosecution to have statutorily allotted
peremptory challenges in additiwn to any
already exercised did not result in prejudi
cial error by alleged “expansion” of amount
of challenges State could exercise. GS
§ 9 21
5. Jury ©*7%1)
Trial judge is empowered and authoriz-
ed to regulate and supervise selection of
jury to end that both defendant and State
receive benefit of tal by fair and impartial
jury.
6. Criminal Law @*1134(5)
Ruling of trial judge on questions as to
competency of jurors is not subject to ap
pellate review unless accompanied by im-
puted error of law.
7. Jury @>131(2)
While wide latitude is allowed counsel
in examining jurors on voir dire, form of
questions is within sound discretion of
court
8. Jury @131(15)
On voir dire examination of prospective
jurors, hypothetical questions so phrased as
to be ambiguous and confusing or contain-
ing incorrect or inadequate statements of
law are improper and should not be allowed
9. Jury @ 131015)
On voir dire examination of prospective
jurors, counsel may not pose hypothetical
quesuons designed to elicit in advance what
juror's decision will be under certain state
of evidence or upon given state of farts
10. Jury @131(8)
Defendant's right of inquiry on vow
Gare examination of prospective jurors as to
jurors’ behefs and attitudes concerning cap-
ital punishment for crime charged is right
to make «appropriate inquiry concerning
prespective juror’s moral or relygous seru-
ples, behefs and attitudes toward capital
punishment
fo.)
62 NO 21s san
'
1! Jury @ -PT)
On sow dire ex amenateor of prompectyye
the fe redant's
juror ih proses ution for rope
eye penny
geort do assur poten Chissl “erwerPs + tee
Which was premioed on unstap
om the
herent snd ps
for this of-
mtaned two
yury eon faver of capital port
in fayor of that puri hment
fense” and whieh in addition o
stibeyuestions deahoge with {ferent pounts
of Imyquiry fer che rings que tiem opbe rently
amnbyrueus and totally confusing: [9 prospec.
tive jurors, Was properly mjected
12. Jury © P3bT)
Where. on vour dire examination of pro
spective jurors, defense counsel sought to
cheat mformation concerning any circum.
stances of setof facts which would mityrate
jurors views on death ponaliy in rape case,
question could not reasonably be expected
to eheit information tx ming upen yuror’s
qualifications and consequential challenge
for cause and was overly broad for purpose
of ehiewting information relevant to exercise
of peremptory challenge and was therefore
properly disallowed
13. Jury Seles)
Although in certain cases appropriate
inquiry may be made in regard to whether
&@ juror is prejudiced against defense of
insanity, trial pudge properly cxercised dis-
cretion in excluding questions by defendant
on voir dire examination of prospective jur-
ors In rape case despite defendant's conten-
tion that such exclusion deried him mght to
inquire whether prospective jurors would
accept insanity, defense
M4. Jury 13117)
On voir dire examination of prospective
ahich related
to hypothetical circumstances in which de-
fendant “couldn't contre! |
JUTOFS In rape cise, questions
“eas
not conscious of bes act” or “did not inten-
> actions,”
tionally or wilfully comin the act,” were
maanils stly confusing, conta ned inadequate
Statement of law, ard were ther fore prop-
‘ rly excluded
EASTERN REPORTER, 2d SERIES
1. Jury @ehd7)
Where
question prepounted by ole fenes counsel on
prospective juror answered
vour dire examination by indicating Uhat be
“dadn't hnow how to answer that question,”
hontation of further repetitious questions
propounded to juror concerning hypothe t.
cal defense of insanity was proper in de-
fenlant’s prosecution for rape
16. Criminal Law 1166.16
Limitation of questions concerning hy-
pothetieal defense of insanity propounded
lo prospective juror who indicated that he
“dida't know how to answer” original ques-
tion resulted in no prejudice to defendant
where such juror did not serve on jury
17. Witnesses o> 414(2)
In prosecution for rape, testumony of
investigating detective in regard to what
victim told him during investigation of inei-
dent corroborated previous testimony of
victim and was admissible for that purpose.
18. Criminal Law @ 445(16)
For purposes of determining admissibil-
ity of investigating detective’s testimony in
prosecution for rape, use by victim of word
“rape” during investigation did not consti-
tute opinion on question of law.
19. Criminal Law e339
Where victim on direct examination
had already made in«ourt identification of
defendant and on crossxamination had
given explicit testimony as to pretrial iden-
tification in which she identified photo-
graph of defendant, and nothing suggested
that pretrial identification was conducted in
impermissibly suggestive manner, voir dire
examination pror to admission of testimony
of investigating detective concerning vie-
tim's pretrial identification of such photo-
graph was not necessary.
20. Criminal Law 41301)
In prosecution for rape, testimony of
treating psychiatrist concerning: statements
allegedly made by defendant, who did not
testify in his own behalf, that he had no
[ 3a}
7 STATE ©. VINSON
NC 63
(ite an 219 SF an eo
knowledye of erome of rape wat mbm:
tole bec i.
Visveqs)
four
21. Crmminal Law
Ih preseeution Pepe Suastaenevenge
State's ot psoe tion honey dreet es comimation
Ler ape sheets Comes rnnitagr poyebaatrist’s open
wma fe oentent af diag use by defendant
hid net peoubly prejudice defendant where
on rotroet cefembint was allowed to have
Stubstumtially scone question answered,
489
In prosecution for rape, questions and
22. Crimical Law
inswers on eress-ckamination by psychia-
trist who examined defendant were pert
nent te motters covered on direct cxamina-
tron and were therefore admissible
»5701)
In prosecution for raja, where testimo-
2. Raps
ny of prosceuting witness contaired plenary
evidence tendingg to show that defendant
had intercourse with her by foree and
against her will, defendant’s notion for
nonsuil Was properly overruled
24. Rape @°59(5)
In a prosecution for rape, kw does not
require any particular phraseology in stat-
ing that defendant had carnal know ledge of
complaining witness, GS. § 1a 20.
25. Rape <7
“Sexual intercourse” encom .asses actu-
al penetration. GS. § 14 21.
See publication Words and Phrases
for other judiisl constructions and
definitions
26. Rape
Instructions which, inter alia, defined
= 504)
xual intercourse with a
woman agcanst her will and which by use of
term “sexual intercourse” conveyed idea of
rape as forcible
completed intercourse including actual pen-
etration, sufficiently related law of rape to
evidence presented where State's evidence
clearly pointed to two completed acts of
penetration, complaining witness testified
“ho actually penetrated me and had inter-
with me,” and defense nat
COUT S 6 Wits
grounded on lack of penetration.
[4a]
27. Criminal Law * 8251)
Aithough trial court must charge on ail
substant sal
upon evidence: cyen abeent special request
features of case which arin
for such instruction, when tral court has
aptly instructed on all substantial feature.
of case, defendant desiring more detaded
mstruction as to any subordinate matter
should make appropriate: request
28. Criminal Law ¢=789(4)
In prosecution for rape, instructions en
reasonable doubt, which were in substantial
accord with charge approved by Supreme
Court, were adequate
29. Criminal Law o=46
Evidence of low mentality in itself is
not sufficient to raise defense to criminal
charge.
30. Criminal Law @814(10)
Where defendant made no fortmal plea
of insanity and there was no evidence tend-
ing to show that he was insane or lacked
requisite mental capacity to commit
charged crime of rape, although defendant
presented testimony that he suffered from
mental retardation with IQ of 76 and men-
tal age of approximately 15 or 16 years
with antisocial personality, charge on insan-
ity or lack of mental capacity was not re-
quired.
31. Criminal Law 1213
Imposition of death sentence upon de-
fendant following his conviction of rape did
not constitute eruel and unusual punish-
ment.
Defendant was tried upon a bill of indict-
ment, proper in form, charging him with
the rape of Norma Coleen Ferguson on 5
December 1973 in Wilson County.
The State's evidence tends to show that
on 5 December 1973 Norma Coleen Fergu-
son was employed at Fiberglass and Sports,
Ne a
14) Hack Creek Read ia Wilbon At 12 6
pom, defendant entercd ond sad he want
ed to look at hfe preservers He packed ont
three od Mrs Ferguson around to
the ecor oer Where he prepeuned a sates
shp When she looked up 1 told barn the
pris, defendant was pennting: a gun at ber
heal an? sand, “You scream. Vi kill you”
Mrs Peryason backed away from the cash
register and said, “Take the money” De-
fendant rephed, “Get oon the back room.”
He placed the prtol at ber ne ad and backed
her ipte the back room which was used for
an office Then he said, “Get naked” She
pleaded with him te no avail and he corked
the pastel sayuny, “Get naked or Vt! kill
you.” She removed the better part of her
pantsurt and defendant raped her twice,
first bent across the desk and thereafter on
the floor Between the two acts he held
the cocked pistol to her! cad and foreed her
to perform an unnatural sex act upon him.
Defendant told Mrs Ferguson he was
going to kill her “at least ten or fifteen
times.” He prowled around the office
opening drawers. He opened the cash reg-
ister and removed approximatel, $40.00
from it) He went through her purse, re-
moved a bottle of diet pills and forced her
to swallow a handful of them, threatening
to hill her because she was swallowing them
too slowly. Finally, defendant removed her
car keys from her purse, went outside, and
drove away in her car.
Police officers were summoned and Mrs
Ferguson told them what had occurred
She was taken to the Wilson Clinte and
examined by Dr. Kirkland. This cxamina-
tion showed evidence of recent intercourse
and the presence of acthoe sperm im the
vagina Dr Kirkland stated that Mrs Fer-
Bison was quite upset. very nervous and
distraught, and told him that a black man
entered the place where she worked, forced
her at gunpeint to perform an unnatural
sex act, and raped her; that he forced ner
to take ten or eleven tablots he found on her
powketbook and thereafter ‘eft in her car
Thomas Edvards. a driver for Roadway
Express, armved at the Fiberglass and
EASTERN REPORTER, Od St RIES
Sports place of buaness on Old Black Creek
Road about Dp omoon & December 1975 to
make a debwery No one was oon the sales
room but he heard a lady's voree on the
officer say, “Oh my God, why?" Hearing
nothing more, he assumed she had received
had news over the & lepehone and deewted lo
leave her alone As he left he hear! her
say, “I only got a dollar in my pockethook,
all the money is in the cash register.” He
drove about one-half mile to a telephone
and told his supervisor to call “that lady up
there at that office” because she either got
bad news or was in termble trouble. The
supervisor called, and when Mrs. Ferguson
answered the phone she sounded all right
When Mr. Edwards returned to make the
delivery, a dark black man stuck his head
out and, ascertaining that Mr. Edwards had
a piece of freight to deliver, said, “Weil,
take it around to the back door and we'll
take it around there.” Mr. Edwards drove
his truck to the back gate, found it locked,
waited five minutes and left again. Fol-
lowing a second telephone call, and with his
suspicions aruused, he returned to the Fi-
berglass and Sports place of business and
found the officers already there. Mr. Fal-
wards identified the defendant as the man
he saw on that occasion.
In response to a cali, Detective Moore
with the Wilson Pel.ce Department went to
Fiberglass and Sports and found Mrs. Fer-
guson sitting in a chair crying and sobbing.
Her clothing and her hair were in disarray.
She said she ‘ad been raped by a black man
and deseribed him as young, no beard or
moustache, with uncombed and unkempt
hair but not an Afro, and about as tall and
heasy as Detective Moore
A day or two thereafter, Detective Moore
gave Mrs Ferguson a stack of twelve black
and white photographs of black males and
requesied her to examine them to see if she
recognized her assailant from afty of the
photoyraphs. She teok the stack and laid
them wide one by one, faceup, “and «hen
she got to the photograph of Ernest John
Vin-on, she said, ‘That's the man’ ” Mes.
[Sa]
STATE 6. VINSON
NC 65
Che as 2ISS' lee
rr ee ee ty whet fied ch fomlant as
her acsculant
Defendant died mot testify Hes only wit
,
was Dr Ruyter 4
nes j Maynard, « poyehs
nal Director of
Psvchoites at Cherry Hegutal fo
Pr Moasrcarctd teotsfeed that te
examined atl obacred the defendant in
atrist and a former Be gw
.
Fore nsu
Gaol ! hore
December 174 arn
tests, that
ant was suffering from montal retardation,
with an 1Q of 76 and «a mental age of
approximately fifteen or sixteen years, and
{ i* leer mend a weTies of
ft was hee diagnosis that defend
that defendant had an antisocial personali-
ty Dr Mayr ird further stated that de-
fendant said he
was suffering from drug
dependence from i known varieties of
ial
drugs. “In a psychiatric evaluation, you
largely have to go by what the patient tells
you) You doen't seo him take the drugs.”
On cross-eXamination, Dr. May nard said
“When I stated that the defendant had
antisocial personality
new term
mthic porsonality
| ?
that is @ relatively
It used to be known as psyeno-
The psychopath person.
ality is the type of individual who we feel
has a very limited, if any, conscience They
are given to committing acts of an illegal
nature without any concern for the conse-
quences, without concern for the present.
They have no close ties or affiliations with
any other people. They are given to acts of
violence off times [sicj without any qualms
of conscience or concern for the conse-
quences.” With reference to drug addic-
tion, Dr Maynard stated that while defend-
ant was at Cherry Hospital he showed no
signs of drug withdrawal and that it had
not been necessary to treat defendant with
any type of drugs while he was there. Dr
Maynard had no opinion as to whether de-
fendant was dependent on drugs.
The jury convicted defendant of rape and
he was sentenced to death He appealed to
this Court assigniry: errors noted in. the
opinion
Rufus L. Edmisten, Atty. Gen. by Claud
W. Harris and Charles Mo Hensey, Asst
(6a)
Attys Gen, Ralegch, for the State of North
Carolina
Robert Ao Farris, Wilson, for defendant
appellant
HUSKINS, Justice
{3} A prosgective juror stated on her
vor dire examination that under ne cireum-
stances and reyardiess of the evidence
would she return a verdict of puilty if it
meant imposition of the death penalty She
wus excused for cause, and defendant as-
signs error on that ground.
There ts no merit in this assignment
The juror was properly excused for cause
State v. Monk, 286 N.C. 508, 212 Sd 125
(1975); State v. Ward, 286 NC. 304, 210
S.E.24 407 (1974), State v. Honeycutt, 295
N.C. 174, 203 S E.2d 844 (1974); State .v.
Crowder, 255 NC. 42, 208 S$ E.2d 38 (1974).
During jury selection the following pro-
ceedings were held in chambers with only
the defendant and his counsel, the district
attorney, the clerk, the court reporter and
the judge present:
“After nine (9) jurors had been seated,
it was brought to the attention of the
Court that some of the names of the
jurors from the jury panel drawn at ran-
com from a box had been in fact drawn
by a deputy sheriff, rather than the clerk.
The court directs that al! of the jurors
who had been seated both by the defend-
ant and the State shall be returned to the
panel. All jurors who had been chal-
lenged by the State or the defendant are
removed from the panel. The trial shail
proceed and the selection of the jury shall
begin anew, with the defendant to be
allowed a total of fourteen (14) chal-
lenges, in addition to any challenges here-
tofore exercised and the State is allowed
a total of nine (9) challenges in addition
to any challenges heretofore exercised.
The clerk is directed to return the names
of all the jurors who had been passed by
the State and the defendant and all re-
maining jurors in the original panel to
the box to he selected and called et ran-
OE
7
6 NC 215 SC.
H EASTERN REPORTER, 24 SERIES
dom by the clerk This finding and onter
was entered on the presence of the de
fendant and in the presence of his counsel
and the seliciter out of the presence of
To the for org procedure the
defendant through his counsel consents,
the jury
also the soleiter”
DEFENDANT'S EXCEPTION NO 3
Defendant assygns the foregoing proceed.
ings as error for that (1) the nine jurors
seated had heen drawn by a deputy sheriff
“in abrogation of NCGS § & 5" and (2)
the court awarded the State nine challenges
in addition to the peremptory challenges it
Lad already exercised, a violation of GS
99 21. Defendant says the statute forbids
such an expansion “even by a purported
consent.”
{2]) It should be observed at the outset
that GS 89 5 prescribes the procedure fer
drawing the pane! of jurors from the jury
box at least thirty days rior to the session
It has
no application in the context of this episod,
of court in which they shall serve.
[3] The quotation above set out is ell
the record contains concerning this assig-
ment It is apparent, however, that a ju-y
panel was drawn by the clerk or his assis t-
ant or deputy as required by GS. § 9 5 and
that all jurors se drawn had beén sum-
moned and had reported for jury duty
Preparatory to selection of a jury in this
case the names of the entire panel had beon
placed on separate scrolls or slips of paper
and placed in a hat or box (not the jury
box) from which names were drawn at ran-
dom for interrogation concerning their fit-
ness to serve as jurors. It was this drawing
in which some of the names were in fact
drawn by a deputy sheriff rather than the
clerk. When this fact was brought to the
attention of the able trial judge, he, in his
discretion, adopted the procedure hereto-
fore set oul. We see no error and no preju-
dice in the action taken.
{4} We find no language in Chapter 9 of
the General Statutes which requires the
clerk of the court personally, or through an
assistant or deputy clerk, to make the ran-
dom drawing of the names of those on the
panel from a hat or box so as to render
illegal such drawing by someone else. Be
that as it may, the trial judge, in an abun-
dance of caution, nullified the proceedings
and started anew, returning to the hat or
box from which drawn the names of the
nine jurors alrwady accepted by both sides
and discarding the names of all jurors al-
ready challenged successfully by either par-
ty. The judge then announced that defend-
ant would have fourteen peremptory chal-
lenges and the State would have nine, the
maximum allowed by GS. § 9 21(a) and (b),
completely disregarding any peremptory
challenges either the State or the defendant
may have exercised theretofore. This dem-
onstration of fairness should be commend-
ed, not condemned. State v. Harris, 283
NC 46, 194 S.E.2d 796, cert. denied, 414
US. 850, 94 S.Ct. 143, 38 L.Ed 2d 99 (1973)
The record does not disclose how many per-
emptory challenges, if any, were used hy
defendant or the State We perceive no
possible prejudice to defendant.
(5) The trial judge is empowered and
authorized to regulate and supervise the
selection of the jury to the end that both
defendant and the State receive the benefit
of a trial by a fair and impartiai jury.
State v. Atkinson, 275 N.C. 288, 167 S.F.2d
241 (1969), rev'd as to death penalty, 403
U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859
(1971). Defendant has shown no prejudicial
error This assignment is overruled.
Defendant's second assignment is based
on Exceptions Nos. 2, 4, 5, 6, 7, 8, 9, 10 and
11 relating to the voir dire examination of
veniremen during the selection of the jury.
The following reproductions serve to il-
lustrate the points defendant seeks to raise:
DEFENSE COUNSEL: “Mr. Jernigan,
if it was shown to your satisfaction that
the defendant couldn't contro! his actions
and didn't know what was going on at
the time of this indictment, would you
still be inclined to return a verdict which
[7a]
STATE 6 VINSON N67
(Cae asTISSt 2068
weishl came the TAD oe tron of the choath
ae
wertite ee
OLIEOCTION SUSTAINED De
FENDANTS EACKITION NO 8
DEFENSE COUNSEI
New. as Pow rstand a, evervene on the
jury hon faver of capital panshment and
mom faver of that punmhment for this
offense New. b there anyone on the
jury, because of the nature of the of-
fete. feels bke cow might be a little bit
biawed on prejudiced, either consciously or
uncon ciously, ben ause of the type or the
mature of the offense imvolved: is there
anyere on the jury ahe feels that they
would be oon faver of sentence other than
death for the offerse of rape”
OBIFCTION SUSTAINED DE-
FENDANT'S EXCEPTION NO. 4
DEFENSE COUNSEL “Now, is
there, Mrs) Reuse. can you think of any
creumstance or an, set of facets in which
a defordant w charged and convicted of
raje, that sou “ould not be in favor of
the death penalty”
OBIEE TION SUSTAINED DE-
FENDANTS EXCEPTION NOS
DEFENSE COUNSEL “If vou are
satisfied from the exidence that the de-
fondant was not conscious of his act at
the tome it allegediy was committed,
would you still feel comp Ned to return a
verdict of yuilty?”
OBJECTION SUSTAINED Dk-
FENDANT'S EXCEPTION NO 6
DEFENSE COUNSEL “Well-if sou
wre satisfied from the evidemee, that a
person del net intentionally or wilfully
commit the act oon question, would you
stil return a verdhet. if vou were satisfied
from the exuhooee, esond a reasonable
doubt, that the act was committed, would
you still return a verdict of guilty know-
ings Chat the sentence would hea manda-
ters death sentence?”
OBJECTION SUSTAINED. DE-
PENDANTS EXCEPTION NO. 7
DEFENSE COUNSEL “Well, on other
word, Mr Ash, are you saying that even
if you are satisfied that the defendant did
not knew myght from weeny, you miyrht
still return a verdict’ that would caus
him to be sentenced to the gus chante rc?”
OMIECTION SUSTAINED Dr
FENDANT'S EXCEPTION NO s&s
DEFENSE COUNSEL “Well, Me
Ash, if you are satisfied from the evi
denee, that at the time of the purported
offense, that the defendant did net know
night from wrong, would you stil! return
a verdict of guilty, knowing as you now
know what the punishment would be?”
OBJECTION SUSTAINED DE.
FENDANT'S EXCEPTION NO
COUKT. “He has answered the ques-
tion. Isn't that true, sir, that you said
you didn’t know how to answer that ques-
tion?”
DEFENDANT'S EXCEPTION NO. 10
DEFENSE COUNSEL: “Mr. Ash, is
there any reason that hasn't heen asked
of you, why you would not give the de-
fendant the benefit of the rule that
would require him to know right from
wrong before he would be guilty””
ORJECTION SUSTAINED DE-
FENDANT'S EXCEPTION NO. 11
Defendant states in his brief that Excep-
tions Nos. 4 and 5 “involve a question, first
to the entire panel, and then to an individu-
al juror as wo their beliefs and attitudes
concerning capital punishment for the
crime charged The remainder of
the questions to which his Honor sustained
objections by the sobieilor involved defend-
ant’s effort to perceive whether prospective
jurors would accept an insanity defense.”
Defendant contends the inquiries were
proper for those purposes and exclusion of
them by the court constitutes prejudicial
error.
{6} “In selecting the jury, the court, or
any party to an action, civil or crimina!, has
the right to make inquiry as to the fitness
and competernc, of any person to serve as a
State vo Allred, 275 NC. 554, leo
Wi purinte doutin Allred
«jurer”
S Bod NA Cre)
that the voir core cxarmnation of parorm has
(1) to ascertain whether
a double purpes
grounds ext for challenge for cauw and
(2) te enable counsel te «
ly the
law
verepe intelligent
allowed by
peremptory challenges
“The presiding jucye shall deede all
to the competeney of jurors.”
(1)
het styect to app Hate review
que Themes m
GS. &§ 9 14
questions i
Hhis ruling on such
unless accompant d by some imputed error
of law. State vo Harris, 288 NC. 40, 194
S.E.24 796, dened, 4144 US 0, 94
S.Ct 143, 38 LBA 2d 99 (1973)
We said in State v. English, 164 NC. 498,
SOS.E 7201914). “The right of challenge 1s
pt, but to rejwet. It ts not
f
given for the purpose of enabling the de-
cert
net one to wee
fendant, or the state, to pick a jury, but to
secure an impartial one.” Challenges for
cause are without limit. if cause is shown,
while peremptory challenges may be ec» er-
cised within the limits allowed by law
McKethan, 269 N.C. 81, 152 S.bi.2d
34) (1967)
[7] While
counse] in examining jurors on voir cire,
of the
sound discretion of the court
State
a wide latitude is allowed
within the
“In this ju-
risdiction counse!'s exercise of the right to
the form questions is
inquire into the fitness of jurors is subject
to the trial judge's close supers ision
regulat on of the manner and the extent of
trial jucyre’s
The
wheilming majority of the states follow this
rule” State v. Bryant, 282 NC. 92, 19}
S.E 2d 745 (1972), cert. denied, 410 U.S. 987,
93 S.Ct. 1516, 56 L Fd 2d 184 (1973). accord,
State v. Carey, JSS N.C. 497, 206 S E 2d 212
(1974)
{8, 9] On the
prospective jurors, hypothetical questions so
the MNqQuiry rests large iy in th
discretion. [Citation omitted. ] over-
voir dire examination of
phrased as to be amtaguous and confusing
or containing incorrect or inadequate state-
ments of the law are improper and should
not be allowed Counsel may not pose hy-
pothetical questions designed to elicit: in
iH EASTERN he PORTER, 2
The .
SERIES
advance what the juror’s decmon will be
under a certam state of the evidence or
of facta In the first
place, such questions are confusing to the
upen a given state
average juror who at that stage of the trial
has heard no evidence and has not been
instructed on the applicable law. More im
portantly, such questions tend to “stake
out” the juror and cause him to pledge
This
the law neither contemplates nor permits.
himself to a future course of action
The court should not permit counsel to
question prospective jurors as to the kind of
verdict they would render, or how they
would be inclined to vote, under a given
state of facts. 47 AmJur 2d, Jury, § 203
(1969), see Christianson v. United States,
200 F. 962 (6th Cir. 1923); Sherman v
William M_ Ryan & Sons, Inc., 126 Conn
574, 13 A.2d 134 (1940); Pope v. State, 84
Fla. 428, 94 So. 865 (1922); State v Henry,
197 La. 499, 3 So 2d 104 (1941); State v.
Pinkston, 336 Mo. 614, 79 SW.2d 1046
(1935), State v. Bryant, supra; State v.
Huffman, 8 Ohio St. 229, 99 NE. 295
(1912)
Types of questions which have been con-
sidered improper include “those asking a
juror what his verdict would be if the evi-
dence were evenly balanced; if he had a
reasonable doubt of a defendant's guilt; if
he were convinced beyond a reasonable
doubt of a defendant's guilt, or questions
asking him whether he would, in a specified
hypothetical situation, vote in favor of the
death penalty Also, it has heen
considered improper to.ask jurors hypothet-
eal questions concerning issues, especially
certain criminal defenses, which may never
be raised at the trial.” 47 AmJur 2d, Jury,
§ 20% (1969), see Proctor v. People, 101
Colo. 163, 71 P.2d 806 (1937); Common-
wealth v. Calhoun, 288 Pa. 474, 86 A. 472
(1913), Annot. Jury —Voir Dire—Hypo-
thetical Question, 99 A.L.R.2d 7, 23, § 4[a]
(1965)
In State v. Jackson, 284 N.C. 321, 200
S.B.2d 626 (1973), the Court held that the
trial judge properly sustained the State's
(9a]
STATE» SENSON NC 69
Cheas 2S ace
objection te the follow any qq tron oocied by
defermdant’ counsel “Task you new collee-
tovedy of you Croed freer the evedemee relating
te any or all the facets on this case, in view
of all the evide nee
two reasonable interpretations, that is, one
that it is susceptible of
leebeng to bes tnnerence amd ome leading to
his yruelt, Twill ask you now if you will
adept that interpretation which pomts to
mNnocener aod reyoot that of guilt’ There,
Justice Kranch, speaking for the Court,
said The hypothetieal question posed in
Motant case could not reasonably be expect.
ed te result im an answer bearing upon a
Rather it could well
tend to commit, influence or ask the jury
juror’. qualifieations
for a deceion in advance of hearing all of
Ser alse State vo Bryant,
supra: State 6. Washington, 284 NC. 175,
195 Sb 2d 4 (1974), cort. dened, 414 US
D2, M4 SCL ST, 4S L.Ed 2d 757 (1974).
the te stamony rege
110} In applying the foregoing princi-
ples tu this case, we first focus on Excep-
tion: Nos
“beliefs and attitudes concerning capital
punichinent for the erime charged.” The
defendant’ right of inquiry in this regard
§ and 5 relating to the jurors’
is the myht to make appropriate inquiry
concerning a prospective juror’s moral or
relyious scruples, beliefs and attitudes to-
ward capital punishment. State v. Crow-
der, SNC. 42, 205 SE 2d SS (1974). “The
extent of the inquiries, of course, is subject
to the control and supervision of the trial
judge " State Carey, 285 NC. 497, 206
S.B.24 213 (1974)
{ij With reference to Exce plon No. 4,
We first note the question was premised on
the statement that “everyone on the jury is
m favor of capital punishment and is in
favor of that punishment for this offense.”
Such an assumption is not supported by the
Secondly, the question
contains two subquestions dealing with dif-
ferent points of inquiry. This form makes
the question inherently ambyuous and to-
tally confusing to
Therefore, the question was properly reject-
ed
record before us
prospective Jurors.
[10a]
112) In reyard te Exception Ne 5. de
fens: counsel sought te chert unfermation
conceming any crcumtances or set of facts
which would mitycate the jurar's wews on
the death penalty ma rape case The ques-
tron could not reasonably be capected to
chert information bearing upon the juror’:
qualifications and a consequential challenge
for cause, and was overly broad for th:
purpose of eliciting information relevant to
the exercise of a peremptory challenge. No
prospective juror should be required to an-
swer questions of such scope and generality
State v. Washington, supra. The question
exceeded the bounds of propriety and was
properly disallowed
[13] Defendant further contends that
the exclusion of the questions noted by Ex-
ceptions Nos. 2 and 6 11 denied him the
right to inquire “whether prospective jurors
would accept an insanity defense.” While
in certain Cases appropriate inquiry may be
made in regard to whether a juror is preju-
diced against the defense of insanity, we
have carefully reviewed defendant's conten-
tions under the circumstances here present-
ed and find that the trial judge properly
exercised his discretion. See United States
¥. Cockerham, 155 US App DC. 97, 476
F.2d 542 (1973), Annot., Jury--Voir Dire —
Hypothetical Question, 99 A.L.R.2d 7, 23 n.
1h (1965); Annot, Juror—Prejudice
Against Defense, 112 A.L.R 531 (1938).
{14} With reference to Exceptions Nos.
2, 6 and 7, we note the questions relate to
hypothetical circumstances in which defend-
ant “couldn't control his actions,” “was not
conscious of his act” or “did not intentional-
ly or wilfully commit the act.” The law
relating to and distinguishing the de.ense
of insanity and the defense of unconseious-
ness has been fully discussed by this Court
in State v. Cooper, 286 N.C. 549, 213 S.E.2d
395 (1975), and State v. Caddell, N.C,
S.B.2d (1975). Suffice it to say that
the questions propounded by defense coun-
sel here were manifestly confusing, con-
tained inadequate statements of the law,
7 ve 2 Ser PE ASTEIEN REPO EE RR 2d SPRITES
at were preqpenty ere tuctedt State os
Bryant, supra
{O54 Feeegetioms New 8, ated DD redate
to the examination of Mer Ah a presgec-
tne wore whe ‘for reason which this
record fail te disehoe, was net a member
of the pars fends ernpeane edt The nema
ing eo Neeption, Ne 2) conccens tie trial
court's <latement that Me Ah had answer
et the questren prepended tes he ferme
counsel Nethonge ele atqears am thi frag-
mentar. Tecerd comoomning Ife exanutation
and answer af the puapeetie juror We
sume the trinl court wae corect m ats
obeer ation that the surer had ce cated he
fede 't Lnew Sew to unmeweg that question os
Phat beng the eace, te triad court property
bred further regetticus questi. con
corm the hiypothotieal defense of inant
1. Mate s Beyant, supra. Grizzell
Stat 164 Texte Ro oe. fe SW a6
(heen
[26] Moreover. stme Mr Ash did not
serve oon the jury in this Case, We perecive
no posuble prejudice te defendant. The
revord dues not show why or at whose im-
stance he was excused Lack of prejudice
is further accentuated by the fact that the
evidence offered at the trial was wholly
insufficient to raise the defenses of insanity
or uncenseoustiess and require the tral
judge to charge the jury on legal principles
applicable thereto .
We find no merit in any of the exceptions
upon which defendant's second assignment
is based The assignment is therefore over-
ruled.
In his next contention, based on assigtn-
ments three, four and six, defendant argues
the trial court erred in admitting improper
evidence over his objection and in excluding
competent evidence elicited by him at trial
{17-19} Assyznments three and four, re-
lating to the testimony of Detective Moore,
are patentiy without ment The testumony
of this witness in regard to what Mes Fer-
guson had told him during his investigation
of the inculent clearly corroborates the pre-
views testimony of Mr Ferguson and was
wimisable for that puree Siate vo Cook,
LAO NC Of, PSTN bad WG CIeTo), State s
Kese, SE NC. 24), DD SE abd chevy
Furthermore, it or setthad that Mes Pergu
won we of the word “rape” during that
investyation did not constitute an opimen
on a question of law. State v Sneeden, 274
NC 408, 166 SB 2d 190 (1968) Similarly,
there is no memt to the argument that the .-
trial court erred in admitting without a voir
dire examination the testimony of this wit-
ness concerning Mes. Ferguson's wdentifia-
tien of a photograph of defendant prior to
trial Mes Ferguson on direct examination
hat already made an in-court identification
of defendant and on eross-examination she
gave explicit testimony of the pretrial wden-
tfieation, all without objection or a request
for a vor dire examination Moreover,
there is nothing whatever in the record
suggesting this pretrial procedure was con-
ducted in an impermissibly suggestive man-
ner. Under these circumstances a voir dite
examination was not necessary, especially
since one Was not requested at the time
vbjection was made to the testimony of
Detective Moore. State v. Cook, supra,
State v. Blackwell, 276 N.C. 714, 174 3.F 2d
534, cert. denied, 400 U.S. 946, 91 S.Ct. 253,
27 L.Ed 2d 252 (1970).
Assignment six is based upon five excep-
tions, Nos. 16 20, to the trial court's rulings
on certain aspects of Dr. Maynard's testi-
mony
[20] Exception No. 36 is directed to the
trial court's action in sustaining the State's
objection to the following question: “At
any time in your conference with him, did
the defendant indicate any knowledge to
the crime for which he has been charged?”
Out of the presence of the jury Dr. May-
nard testified that defendant professed no
knowledge of any crime of rape. Defend-
ant does not disclose the relevancy of this
inquiry and we do not perceive any legiti-
mate purpose. The question called for in-
adtmiosible hearsay and the doctor's answer,
stating what defendant had declared after
[lla]
«
lf
STATE 8 VINSON
NC 9]
(teas 2tS St 2466
he had boon chonged with the ertme, was af
Dh femdant cid not take the
elf corving dechuratwns te
that nature
stand and by
the deetor were mot adtrscable for any pur
Tavior, YO NC 27%. 185
The State's abyection
we tian dd
jure Miah 4
Shiva 677 72)
Was prepe rly
[20] beveegtion. New U7 and Ts relate te
th trial scout
St ate
when oan sustaining: the
ebyeetion. duruny direct examination
Ter aglie Thetis qaneergye Me Dr Mary nar’. opin.
wna be the extent of drage use by defend.
ant Our perusal of the record indwates
vaminotionm defen coun-
tok Dr) Maynard of he
the defend.
that on redirect.
al Wis perm Lae | "ee
had an epinion “s hether or get
i
wr? Wore de nr bent on drugs?” In response
thereto the witness answered “DT have no
opin of na tl
Ernest Vite
he r dhiagene i
aco, of a re por. on
On page 3, number 3 un-
i reads “drag dependene-, all
* This is the ecur-
Piven asswming error on
hereon my suis teers
rent elicaprres
direet examination, whieh we do not con.
code, We Percene no possible presudiee since
Substantially the same question Was ashed
and answered on redureet
{22} We find no merit in Exec p tions
Nos 1% and 20 whieh deal with answers of
the ductor on cross-examination to ques-
tions concerning the course of treatment of
defendant — The and
were pertinent to matters covered on direct
questions answers
ecsamination and were obviously admissible
State v. Stone, 226 NC. 97, 36 SE.2d 704
(Mit), State vo Perry, 210 N.C. 796, ts
SE. 649 (1956)
Assignments three, four and six, there-
fore, are overruled
123) In sssignment five defendant con-
tends the trial court erred in denying his
motion as of nensuit at the close of the
State's evidence. We find no merit in this
The t& stimony of the prose-
cuting witness contains plenary evidence
which tends to show, when taken in the
hyht mest favorable to the State, that de-
fendant had intercourse with her by force
assignment
and against her will Accordingly, defend.
ants motion as of nonsuit was properly
overruled State + Willams, 286 NC 42,
22S Ew PE ITS, State
NO 41, 1 Shed at city
The seventh asyrmment, based on Excep-
tions Nos 22 through 25, asserts error by
the tral court in instructing the jury
Defendant's Exception No. 22 is that the
trial court failed to define the term “sexual
intercourse” and thus failed to charge that
rape requires penetration by the male or-
gan. The court charged: “Rape is forcible
sexual intercourse with a woman, against
her will For you to find the defendant
uilty of rape, the State must satisfy you
from the evidence and beyond a reasonable
doubt of three things First, that the de-
fendant, Ernest John Vinson had sexual
intercourse with the alleged vietim, Norma
Coleen Ferguson,” ete.
enold, Pee |
[24,25] The law defines rape as the ear-
nal knowledge of a female person by force
and against her will GS § 14 21 (1999),
State v. Armstrong, UX7 NC. 60, 212 S FE 2d
894 (1975) “The terms ‘carnal knowledge’
and ‘sexual intercourse’ are synonymous
There is ‘carnal knowledge’ or ‘sexual inter-
course’ in a legal sense if there is the slight-
est penetration of the sexual organ of the
female by the sexual organ of the male.”
State v. Murry, 277 N.C. 197, 176 S.B.2d 728
(1970), State v. Jones, 249 N.C. 134, 105
S.E.2d 513 (1958). In this respect the law
does not require any particular phraseology
m stating that the defendant had carnal
knowledge of the complaining witness
State v. Hodges, 61 N.C. 231 (1867) Ae-
cordingly, in State v. Bowman, 232 N.C.
374, 61 SE.2d 107 (1950), this Court held
that testimony of a complaining witness
~ that defendant had “intercourse” with her
was sufficient to warrant a finding by the
jury that there was penetration of her pri-
sate parts. Accord, State v. Hardee, 6 N.C.
App. 147, 169 S.E.2d 533 (1969). It neces-
sarily follows that the term “sexual inter-
course” encompasses actual penetration
Williams v. State, 92 Fla. 125, 109 Se. 305
[12a]
2 NC 205 Se
'
(1420), Teynor vy State, 47 Ohio App 349,
Wi NE Are cee
126,27) We are of the epimen that the
instructions saffron ntly relote the law of
Here, all
»etidence ehearly points te two
rape tor the exedence pres nted
the State’
completed net
ef penetration The com-
phoning witness testified “he aetually pone-
trated me and bed intercourse with me.”
There was ne evidence te the contrary Al-
thoagh defendant's plea of mot guilty re-
quired the State te prove penetration be-
ygnd a reasonable doubt, the’ defense was
Un-
“sexual
conveyed the idea of completed
net yrrounded on Leck of penetration
der these circumstances, the term
interceurse
Intercourse, including actual penetration,
and the jury must have so understood
Moreover, the Court asked defense co insel
if the
counsel replied
instructions were satisfactory and
“quite” and indicated no
corrections or additions were necessary. If
he desired further claboration on the term
“sexual intercourse he should have so re-
Of course the trial
court must charge on all substantial fea-
quested at that time
tures of a case which arise upen the evi-
denee even absent a special request for such
instruction State \ Deek, 285 N.C. 2,
2048 S Bod SO (14974), State v. Dooley, 2a,
NC 15*, 203 S.B.2d 815 (1974). Converse-
ly, when the trial court has aptly instructed
on all substantial features of the case, a
defendant desiring a more detailed instrue-
tion as to any subordinate matter should
inahe an appropriate request. State v
Noell, 244 N.C. 670, 202 S F.2d 750 (174),
State v. Gordon, 224 NC. 204, 30 S.F.2d 43
(1044); State vo Hendricks, 207 NC «73,
17 SE. 657 (1005), State v. O'Neal, DRT
N.C. 22, 120 S.F. 817 (1924)
[28] Exception No. 28, directed to the
trial court’s failure to instruct the jury to
consider the “lack of evidence” as well as
the evidence in the case, is without merit.
Defendant cites State v. Hammonds, 241
NC. 226,85 S F.2d 133 (1954), and State +
Tyndall, 200 NC 174, 52 S.Bh.2d 272 (1949),
in support of this exception, Both of those
“HH RB ASTIRN REPORTER, 24 SERIES
cases stand for the proposition that when
the court undertakes to define the term
“beyond «a reasonable doubt,” the definition
must be in substantial accord with those
approved by this Court) In this case the
trial court's instructions on
doubt were in substantial accord with the
charge which we approved in State v. Gar
ten, 277 NC. 236, 176 Sa 778 (1970)
Here, as in Gaiten, the evidence was not
circumstantial, but was direct and amply
sufficient to support the verdict. Accord-
ingly, Gaiten controls and the court's in-
structions as to reasonable doubt were ade-
quate under our decision in that case. See
also State v. Britt, 270 N_C. 416, 154 S.F2d
514 (1967).
{29,30} In Exceptions Nos. 24 and 25
defendant argues the court did not charge
“on the required mental capacity to commit
a crimina! offense” or “on the legal conse-
quences if the jury found that the defend-
ant did not know right from wrong at the
time of the alleged offense.” A request for
the desired instructions does not appear in
the record. Moreover, defendant did not
make a formal plea of insanity and there is
no evidence in the record tending to show
that he was insane or lacked requisite men-
tal capacity to commit the crime. Evidence
of low mentality in itself is not suffierent to
raise a defense to a criminal charge. State
v. Rogers, 275 N.C. 411, 168 S.B.2d 345
(1969), cert. denied, 396 U.S. 1024, 90 S.Ct
599, 24 L.Ed 2d 518 (1970) Under these
facts there was insufficient evidence to re-
quire a charge on insanity or lack of mental
capacity, and there was no error in the
court's failure to do so. State v. Cooper,
oe) NC. 549, 213 SE 2d 305 (1975), State v.
Melvin, 219 N.C. 538, 14 S.E.2d 528 (1941),
State v. Miller, 219 N.C. 514, 14 S.E-2d 522
(1941).
This assignment is overruled.
(31] Finally, defendant contends that
imposition of the death penalty in this case
constitutes eruel and unusual punishment.
This contention has heretofore been con-
sidered and determined to be without merit
reasonable
[13a]
APPLICATION OF CAMPSITES UNLIMITED, INC.
N.C 73
Cite es 21588 2073
im various cases State v. Vick, 287 NC. 37,
214 S.B ld 385 (1975), State v. Armstrong,
AT NC ow, 212 SB 2d 894 (1975), and cases
cited therein. = Therefore, defendant's
eighth assygmment based on this contention
is overruled.
After careful review of all assignments,
we find no prejudicial error in the trial.
The verdict and judgment must therefore
be upheld
No error.
SHARP, Chief Justice, dissenting as to
the death sentence:
The rape for which defendant has been
convicted occurred on 5 December 1973, a
date during the period between 18 January
1973, the day of the decision in State v.
Waddell, 282 N.C 431, 194 8 E.2d 19, and &
April 1974, the day on which the General
Assembly rewrote G3. § 14 21 by the en-
acttrent of Chapter 1201 of the Session
Laws of 1973 For the reasons stated in the
dissenting opinion in State v. Jarrette, 234
N.C. 625, 666 et seq., 200 S.E.2d 721, 747 et
sey (1974), I dissent as to the death sen-
tence imposed upon defendant by the court
below and vote to remand for the imposi-
tion of a sentence of life imprisonment
COPELAND, Justice, dissents as to death
sentence and votes to remand for imposition
of 4 sentence of life imprisonment for the
. reasons stated in his dissenting opinion in
State v Williams, 286 NC. 422, 437, 212
S.E.2d 118, 122 (1975). ‘
EXUM, Justice, dissents from that por-
tion of the majority opinion which affirms
the cath 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 NC. 422, 439, 212 S.B.2d 113, 121
(1975).
en
’
Application of CAMPSITES
UNLIMITED, INC.
No. 0.
Supreme Court of North Carolina.
June 6, 1975.
Landowner sought certiorari, objecting
to a board of adjustments’ denying him
permission to continu his camping develop-
ment as a nonconforming use after the en-
actment of a zoning ordinance. The Supe-
rior Court, Stanly County, S« ay, J, af-
firmed the board's order, the Court of Ap-
peals, Vaughn, J., reversed, 23 NC App.
20), 208 S.E.2d 717, and the county appeal-
ed. The Supreme Court, Lake, J, held that
where the landowner began development of
his property as campsites, did substantial
work thereon wed made expenditures or
obligations in excess of $250,000, and during
~ that time landowner had only general
knowledge that county commission were
studying zoning plans but had mo know!l-
edge of any specific plan for his property,
campsite development was existing noncon-
forming use when ronitg onlinance was
enacted, notwithstanding county's econten-
tion that landowner demonstrated bad faith
by stating several months after develop-
ment was begun that he was aware that
zoning “had been in planning stage for a
year or so” and that he was “trying to beat
Affirmed.
1. Zoning o=702
Upon superior court review of order of
board of adjustments, findings of fact made
by hoard, if supported by evidence intro-
duced at hearing before board, are conclu-
sive.
2. Zoning C745, 749
On appeal of superior court's order af-
firming action of board of adjustments, Su-
[l4a}
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
ll, 1974).
REASONS FOR GRANTING THE WRIT
I. THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER THE IMPOSITION AND
i CARRYING OUT OF THE SENTENCE OF DEATH
FOR THE CRIME OF MURDER UNDER TH" LAW
i OF NORTH CAKOLINA VIOIATES THE LIGHTH
i OR FOURTEENTH AMMNDMENT TO THE CONSTI-.
g JUTION OF THE UNITED STATES.
| 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
} Georgia, 408 U.S. 238 (1972). A brief review of post-Furman
vote of the North Carolina Supreme Court following Furman v. |
;
; id a a i
developments relating to the death penalty in the UniteGd States .,
generally and in North Carolina particularly sets the question
in perspective. . :
The nearly universal response of state courts in obedience
to Furmon 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 Carelina, 0.T. 1973, No. 73-
Henderson _v. ‘orth Carolina, 0.T. 1973, No. 73-
Jarrette v. North Carolina, O.T. 1973, No. 73-
?. 973, No. 73-
- ll -
H {lb]
— oe ee ew ee
O : O
VY
of that date declored unconstitutional. Subsequently, statutes
~~ ——_—
VY See, e.g , United States v. Lee, 489 F.2d 1242 (CA DC 1972); -
Unite? St»:oe v. Woods, 434 F.2d 127, 138 (CA4 1973) ("Since the
Geci: ion an Eurron_v. Georgia, ... the statute under which
dciendant wae convicted of first decree murder, 18 U.S.C. §11l1,
provic *s the enly possible sentence imprisonment for life"
at 135); United States v. Menally, 4385 F.2d 393 (CAS 1973);
Hubburd v. state, 259 Ala. 118, 274 So.2d 293 (1973) (“There is
nO que. ion that Purmon has, as of now, eliminated the death
penalty frem our statute. The elimination of the death penalty
dous not destroy the entire statute. The only sentence which
can now be impos
mposed upon conviction of the crime of murder in the
forst Cegree is life amprisonment. 274 So.2d at 300); State v.
Endres 109 Ariz. 117, 506 P.2d 248 (1973) (“In view of [the
Furmin ruling) we hold that the death penalty provisions of bee
Arizona rurder statute] are unconstitutional. 506 p.2d at 254);
O'Neal v. State, 253 Ark. -5747-487 -S.W. -2d 618-(2972); Peon) +
Vv. Murpic, o Cal. 3d 369, 105 Cal. Rptr. 138, 503 P.2d 594 (1972);
State v. Ailicn, Conn.___, 295 A.2d 666 (1972): Anderson, et
i as Vv. State, 267 So. 2a 8 (Fla. 1972); Sullivan ect al. v.
Sta - Ga. 731, 194 §.E. 26 411 (1972); People v. Spcck,
2 ¥11. 24 224, 287 N.E. 2d 609 (1972) ("The Supreme Court of
the Unite2 States has now held that a defendant could not be
validly scntenced 7 death under {pre-Furman Illinois capital
statutes}.” 287 N.£E.2d at 700; aie t v. State, __Ind. __.
284 N.E.22 757 (1972); State v. Rancol, 212 Kan. 461, 513 P.2¢d
243 (1973) ('
provision of
sible. The
enact amenda'
. . eCourt is or ay “Opinion that the death penalty
our present statute is constitutionally impermis-
1°72 Legicleture of Kans23s considered but failed to |
tory legislation.” 513 P.2d@ at 256): Caine and
McIntosh v. Covrtorwealth, 491 S$.W.26 824 (Ky. 1973), cert. gen.
414 U.S. &76; State v. Flood, 263 La. 700, 269 So. 2d 2iz (1972)
(“the Furren case has eliminated ‘capital offenses’ in Louisiana.’
269 So.22 at 214); Bartholvey v. State, 267 Md. 175, 297 A.2d
2); Commonwealin v. Leplane, Mass. _,-299 N.E.2d 719
(1973); Capier v. State, __Miss. ___, 268 So. oO. 2d 338 (1972)
Sher penalty of death may not be lawfully imposed.,
2rt of the statute is complete. . . .We hold that |
1 V. Georaia. the death penalty cannot be in-
----—-- oo
|
ay) "~ 44
°
because of Fr
Other punisi.onc
nt for ‘murder is life imprisonment.” 268 So.2da at |
339-40): State v. Scott, 491 S.W.2d 514 (mo. 1973) ("The sole and
Only punisiz ent for first degree murder in thisstate is now life
imprisonsent."” at 521); State v. Alvorez, No. 27435, Dist. Ct.
ew wees wo I
Lancester Cty., Neb. Oct. 4, 1972; Walker v. State, 88 Nev. $39, !
501 p.2d 651 (1972): State _v. Vv. Martinoau ane Nelson, 112 N.H. 278,
293 A.2d 766 (1972): People v. Fitzpstrick, 32 N.Y. 2€ 499, 300
N.E. 2¢ 129 (1973), cort. den. 35 L.Ed. 2a 338, 94 §.C. 554
(1973); State v. gebbstn. 31 Ohio St. 2d 106, 285 N.E.2a 751
v 3: urman}] holding, which we are required to
follow, the infliction of the death penalty under the existing
law of Ohio is now unconstitutional [with possible exceptions
not relevent here)." 265 N.E. 2d at 755); Pate v. State, 507
1973) ("After an exhaustive study ¢ Oo. the
P.2cd G15 fcoxia.
{(Furcven} opinions . . . this court reluctantly finds that
it is impermissible, under said decisions, to impose
a sentence of death on any convicted person until such time as
-
-
. ‘ e
2 COPY
.
- -
ne
were enactee in slightly more than half the States (and by the
—— ——
_— — —— e -_ sd
_——— ~- «oc: ~
federal, government). aut mB SEIeS.. the. use of.the punishment of
cbt ae eats « -B/
Geath in aicierinaly defined ce categories: of eases.. The statutes
vary widely im the ‘ir terms and forms . “and consequently vary
& . --. ’ > ae! Z a a me . = s a : oe at
- ~~ -~--* *- ~ .* * -
e . rey - --- -- ”- = -- * - -- — --f -
oe eR : a
e a ee - :
s« ose beth aes <% hint Ger eorienee @ ae 6 : —
' i - . - _ - ~~ we. = -
Vf CONE "G2 25<>% es CRtlt ¢:- Face ass e eo ae et “eh
oule :
j * eae ae at =
; 7 $ o ae j atsoot && oawe-s =e - o a «=
the: laws have been Culy enacted conforming to the standards set
PT v. Coorqia,” at 926)3 Comnonvwealth v. Bradley,
449 Pa. 193°295 A>2d° 842 (1972 : Fun te ry et al. v. State,
__iTenn. “2 ', .496-S.W.2d 900. = (1972). ("tho. effect of [Furman
eo. + « 15° tO render void the penalty of death as it exists under
the statutes of nl ea 496-°S.W.2d at 902); Lopez v. State,
500 S.W.2d Gis (Vex. Crim, 1973} ieee we. find the inescapable
conclusisn to be that the ‘holding “in Furman and Branch rendered
a a issible under the Constitution of the United States to
impose the death penalty uncer our ten existing statutes." At
846); Wood v. Commonwealth, 213..Va. 346,—-192 S.E.2d 808 (1972);
State ve Vigel, 621 tiash. 2d 94,-506 P.2d 156 (1973) ("The recen
ease of Fur.2n v. ~Gorgia.. . . thas .the effect of preventing the
impositron cz the death venalty under ‘the existing statutes of
he.:State of Waohington.' 2508 (P24 Gt 2162). - Se cr a can
: ; =
tfc ewes e _—
+ - oé. --.
« ° -- —
-
eee *2z 2®#
B) Soe of tiicse dew statutes provide ‘that a court or jury must
matic a separate determination as to whether a defendant should
‘be sentencecd to life or death independently of its ‘finding the
defendnnt guilty of a cepital cr cFime:. conviction of a particular
offense doer. not, therefore, necessarily ‘result in a death sen-
tence... Sone o!
in- which th. trial” judce or. jury mus getuen a general mi
fining a batendant Guilty of a. tapitad degree of the offens
Del. Code, tit: 11, § 636 (1974),- as amended by Del. H.B.
No. 429, 127:h Gen. Ass. (1974); Ni. Rev. Stat. Ann. § 630:1(1)
(1973), a5 G enced by NVH..S.Bs-27, Chap. 34, Acts of 1974,
NU. Gen, Ci.: NMex. Stat. §6§ 4024-2?-1, 40A-2-1(A), 40A-29-2
C. Cen. Stat. §§ 14-17, 14-21, as amended by S.B. 157,
Ss. Laws (2nd Sess. -1974); Tenn. Code Ann;
cd by Pub. Chap. 462,-Tenn. Laws 1974),
O02 (as anended by Pub. Chap.’ 461,°Tenn. Laws 1974) (1974).
?
Wi
5
of these statutes provide a unitary proceeding where a
st return a verdict finding special facts to justify the
: mee. Ind. Coce § 10-3401 (1974); Ky. Rev. Stat.
Chap. 507, as amended by Ky. H.B. No.°232, Reg. Sess. 1974;
La. Rev. Stat. §§5 14:30, 14:42, 14:44, 14:113 (1974); La. Code
e . - - = -- -
- -
. o - - - -
«< a ~~ - ~ ~- ~~ _—--- «= so = -
- .
~~
-
.
-
e «
somewhat in the questions they present regarding their compliance
} with Furman end with the Eighth and Fourteenth Amendments to
'
'
+] . - o
Au
ee ee re eee
| ®/ cont te rae —
H
i Crim. Proc., Art. 557, 598, 817 (1974); Miss. Code §§ 97-3-19,
i 97--3-6% (1974), as amended by Miss. S.B. No. 2341, Reg. Sess.
W74; Mont. Code GC 94-65-1002, G4-5-103, 94-5-105, 94-5-304 |
vd (as amended Ly Mont. H.B. No. 643, Mont. Gen. Laws 1974) (1974);
" Nev. Cole 6 700.030 (1974); Okla. Stat., tit. 21, $$ 701.1, |
701.3, 701.6 (1974); Wyo. Stat. & 6-54 (1974). Among the new
{i
i laws which provide a bifurcated proceeding to make this separate
i -deteryination as to sentence, some allow imposition of sentence |
jj Without any particular finding identified by the legislature as
'
4 a prerequisite for imposing either a sentence of death or life
j imprisonment. Ga. Code § 27-2534.1 (1973), as amended by
i - .
|! No. 74, Ga. 1973 Sess. Laws at 162-172; Utah Crim. Code §§ 76- {
| 3-206, 76-5-702, 76-5-302, 76-3-207 (1974). Others of these |
bifurcete2 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 ju tifies |
ge ,
y Jmposition of a @eath sentence. Cal. Penal Code §§ 190, 190.1,
190.27, 209, 219, 4500 (1974); I11. Code SS 5-G-la, 9-1 (1974);
|
‘
!
!
|
!
‘
"jj Tex: Pen. Code § 19.02 (1974); Tex. Code Crim. Proc., Art. 37.071
, 974); others identify such circumstances but provide that such
i“aggravating" circumstances may be counterbalanced by the finding
| of “miticatinz” circumstances in some unspecified fashion, Ariz.
I-Rev. Stat. £6 13-452 - 13-454 (1974; Ark. Code §§ 41-4702 - 41-4713
Fla, Stat. §5 782.01, 794.01, 792.141 (1974); Neb. Code §§ 28-401,'
"29-2522, 29-2523, 29-2524 (1974); still others provide formulae
for the weichting of “aggravating” against “mitigating” circum-
stances to determine which defendants shall be sentenced to death.
‘Conn. Gen. Stat. § 53a-45 (1974); Ohio Rev. Code §§ 2929.03,
4°2929.04 (1974); Pa. Stat., tit. 18, § 4701 (1974), as amended hy
{ es
yeineass 1000, Act. 46, 1974 Sess.
}
'
{
\
!
|
—_————
‘*
‘Another eroup of statutes provides for the imposition of a
| death sentence Ly operation of law pursuant to a jury's or trial
judge's conv: ‘on of a certain crime. Idaho Code §§ 18-4003,
18-4004 (1974); RI. Code § 11-23-2 (1974); New York: Ass. Bill
p-tiasa, 1974 Sess. Laws. ~~
~ = The following States have not enacted legislation authoriz-
ing the death penalty since Furman: Alaska, Alabama, Colorado,
MHawaii, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Missouri,” New Jersey, North Dakota, Orecon, South
i Carolina, South Dakota, Virginia, Washington, West Virginia, '
' Wisconsin, Vermont. } .
[4b] : “7 -
9/
the Constitution. It is a fair although gross generalization
\
, that, is: most States, the new statutes authorize capital punish-
ment for a narrower category of offenses than those that were
punishable by dcath in the ‘same’ States before Furman. Of the 103
i 10/
since June 29, 1972, and who are presently on death row,
_- . “*- a) ~<.* . . — + 2 re . - ° -
roughly two-thirds were condemned under the new post-Furmin
statutes.
Pc ae ; 1l1/ - ee ee
Virtually okt of the remainder =< _ men and women, to bo
1° ~- hae ---- ‘ne +a. s ~~ a A
{3 - - . oe e * -—- -
" ing death sentences imposed under’ one of the new post-FPurm:n
| statutes were handed cown in a’ Georgia murder case, State v.
| Houre, Ga. Sup. Ct. No. 28676 (April 4, 1974) (rehearing ‘denied,
April 25, 1974); and in a Georgia rape casc, State v. Fherheart,
Ga. Sup. Ct. No. 26776 (April 30, 1974) (rehearing denied, yes 2h,
' 1974). Counce? for Mr. House _and Mr._Eberheart (who includ
,. some ef the ccunce!] for petitioner Dillard) are presently pre-
, paring to seck review by this Court of the Georgia Supreme Cou
-o- ° : - =
-_- —<—* ee *. of, - - - aed - - —_—-™~. —_ -
| eas.
‘a 10/— Wwe exclude from this computation a number of persons sentenc:
| - to death since Furnan whose convictions or death sentences have
! been reversed or vacated on appeal. The 99 figure represents
_ persons presently committed under anreversed and unvacated
sentences of death. ;
| Sr oe Ta ae er
|
1}/ Seven persons have been sentenced to die since Furman
under the provisions of pre-Furmin_ statutes. The cases of
six of these persons (in Mass achusetts, Montana, Pennsylvania,
y case arises under a Virginia statute which the Virginia Supreme
| Court held distinguishable from the statutes invalidated in
Furman. State v. Jefferson, Va. S.C., No. 730370, decided April
'
22, 1974. Ap ‘tition for rehearing is presently pending in
| glefferson. Shor 31d it be denied, covnsel for Mr. Jefferson (who
j. are associated with some of the counsel for petitioner Dillard)
| anticipate that review will be sought in ‘es Court.
or Bee ae hae at, tile so ehen =
' m : e @ « “=e
) :
| nf ;
|
i - 15 -
! (5b) -s
| el : - * Se :
\| - ee - - “e- - «- «- * - «@ £
i! tm re - re y 7
i omen and women who have been sentenced to die in the United States |
1 9/ The first decisions by the highest court of any State affirm-.
_—-— ae wee
'
and South Carolina) are described in note 14, infra. The remaining,
3
_
~
— ee
death penalty upon all convictions for the crimes of first-degree |
- - -* - . - — ~~ “7. oo - -& owe. ~ -+- _- Oe ‘
exact -- are on death row in North Carolina, where post-Purmen
developments took a markedly different turn by the margin of a
cingle vote en the North Cusatinn Supreme Court in the case of
State v. Watgicll, 282 N.C. 431, 194 S.E.2d 19 (1973). Prior to
in the case of convictions for any of these four ‘offenses s, the
1?/ Whe jury was given the power to recommend life imprisonment
“~jn-arcon
_—_——oo- oO Oe nn
3947, North Carolina law had-required the imposition of the om
-- . -- a -—-« - _~- ~- — sees 6 et
murder, rape, first degree burglary, and arson. By enactments of
1947 ard 1949, the North Carolina General Assembly provided that,
~ - “- _#- . -_- er~e ¢ ~ ——- = - --« se< -.
e the defendant's Lif e by a recom rendation of life
Jury maght spar
12/ -" We
imprisonment. An unanimous Supreme Court of North Carolina
se me « : a
~wrglary cases in-1947, and in murder and rape cases:
}
-in 164°. We, have foune ne legislative history dealing directiiy
-
Justice. That Commission reconmsended, inter alia:
with the 1947 cnactment. . =. : °
North Carolina legislative action reflects a clear and considered
State v. Puch, 250 N.C. 278, 168.S.E.2d 649, 642-(concurring
The limited legiatets ve history available for. the 194
abandonment of a general mandatory death penalty... As noted in
cpinion of Denny, J.), the 1947 General Assembly created a
Special Comnission for the Improvement of the Administration of
"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 deuth
.-« « «. penalty and we believe its retention will be
io dcfinitely harmful. Quite frequently, juries
refuse to convict for rape or first degree
murder, because, from all the caircunstances,
they do not believe the defendant, although -
-- 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
- and arson. There is much testimony that it ‘
has proved beneticial in such cases. We think
the law can now be broadened to include all
capital crimes.”
{footnote contanucd])
———— ———
-_. ————_—
‘eoneluded in Waddell that, as” amended “in 1947 and 1949 and opera-
tive for nearly a quarter-century between 1949 and 1972, the
Morth Carolina statutes inflicting capita] punishment for first
degree murder, rape, first @egree burglary and arson were un-
-eonrtitutional under Purman. Three Justices of the court there-
_——— «+ - “+- - ——- — . ~- - .
fore wedtd have held that the death penalties provided by North
Carolina law on the dates of the Furman and Wadéell eecisions
were constituclionally unenforceable then and thenceforth until
(at the least) the enactment _of new capital punishment legisla-
tion by the General Assembly. Buta majority of four Justices
oa +
1?/ cont'd. Re ail “s 5
POPT.AT COVIRIIENT eben 1949) (published by the gnstitute
of saeprenent., University ef North Carolina, Chapel Hill,
North Carolina), p. 13.- The North Carolina Supreme Court
‘commented on the legisletive intent indicated by the 1949
monrures in State v. MeMilton, 233 N.C. 630, 65 S.E.2da 212, 213
(1951). $
"The lancuacge of this amendment stands in
-* <“"pold relief. It is plain and free from
ambiguity and expresses a single, definite
“sand sensible meaning, - a meaning which under —-
‘the settled law of this State is conclusively
“presumed to be the one intended by the Legis-
laure.
- ao ge @c es@a * 2 OO" aa os S ~~" *-""*-— os » - -
- -_* oo =
---
“It is patent that the sole purpose of the
- . +. aet 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
nate are attache’ to, and no qualifications or
limitations are imposed upon, the right of
the jury to so recommend. It is an unbridled
Giaeretsonary right. And it is incumbent
— the court to so instruct the jury. In
this, the defendant has a substantive right.”
>
==
-the Wadiell decision) North Carolina law reverted to its pre-
coe -. be returned. Upon the return of a verdict of guilty
‘Gnhabiting North Carolina's ‘death row were sentenced to die
-between the date of Wa edcl). ana the date of the enactment of
‘a new North Car oli na Geath penalty statute on } AGES 8, 1974.
hela thet the only pertion of North CaroTina law invalidated
by Fur: 1 was the 1949 “recommendation” provision, with the
result that ipecapeetsyesy from the January 18, 1973, date of
- —- = —_— + —— «=« meee — _ -. _-—-— —— ee ee - --* -- —
1949 states ~
"“[(T)he effect of the Eurman deeds ton upon
the Jaw of North Carolina concerning the punish-
rent 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
Giscretion add to its verdict of guilty a recomnenda-
tion that defendant be sentenced to life imprisormment.
The trial judge should charge on the constituent
elements of the offense set out in the bill of in-
Gictrent 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
sentence of death,” (State v. Waddell, 282 N.C.
431, 1$3 S.E.2a 19, 28-29(1973).)
Under there procedures, petitioner and the other 30 persons now
- _ - . -————-— & * _- ure ———-—
- ey ~-_—
.« ° .™ 13/
The qucstion sunesnaed here is the federal constitutionality
of death sentences imposed in Nerth Carolina pursuant to the
Wadlell procedures and without new legislative authorization
after Fursin. Most immediately, that question is potentially
decisive of the lives of the 31 condemned inmates in the State
13/ See note 2, supra. ; — oe
- -- os — -”~ ~— mwa ++ ©
- r! . -@
- = 18 - -
[8b]
whic he
It ga
on wh
or it
Ss cK 3 uf
legis:
Orin:
capi t
betwee
a new criminal code enacted before Furman but effective July
1, 39
Upon
enact
is a
yaisi Dict: RESON of the super-
Vening code and _ POs it- Furie “nan enactment. State ve! Smith, ‘Del. S.C.
Ne, 52,1974. aoe ae sean es ree ¥
peo: ed
Jzati
the r.
¢C) 3 nh:
Nos .
Sess.
three post-Furmon death sentences imposed in Montana and Pennsyl-
Van j «tl
now has the angest death row population in the Nation.
y also have direct implications for death sentencing in
- - i
14/ |
other States. Depending, of course, upon the grounds
ich thi: Court elects to cons sider the ques ‘tion, it may
oe - ~~ o- -> - * - -_-
ray net have implications -- of narrower or broader
-- for the death penalties enacted by post-Furman
--— =— @
Jation.
ee ee ee et ee ereren
~ -_~—— meee _- ~-« -_*+- = - ~<- oe «
y other state appellate court that has dealt with
?
‘an in the fashion of Weddell is the Supreme Court of epitome
in St. i
c Nickerson, r Del... 298 A.2a 76) (1972). The Dickers
om wat announces prospectively on Novenber 1, 1972. No
al convictions were returned in the State of Delaware
u thet date and the @ates upon which, successively, (1)
73, came into effect, repealing the statutory provisions
which Dickerson rested, and (2) the Delaware le ‘-eapepe sture
ed a poot-rurmin statute effective March 29, 1974. There
esentiy pen@iig litigation in the Delaware Supreme Court
my the issues of the effects upon D
———— ee ee me re te ae ee
Vrial courts in Massachusetts and South Carolina“ have inm-
death penalties after Furman under the purported author-
on of pre-Purman statutes and in apparent’ reliance upon
tionale of Waddell and Dickerson. Commonwealth v. Prewn,
cules, and Johnson, Superior Ct., Suffolk Co. (Mass.),
74502-3-4 and 74516-17-18; State v. Speiahts,Ct. of Gen.
, Florence Co. (S.C.), No. 5053. It is also possible that
i
moe
under pre-Furman legislation rest upon the same rationale,
althouch the trial judges’ trata in these cases more likely
stand
ct. N
No. 4
presently pe a. in the respective Supreme Courts of the
States in wi
upon other grounds. State Rhodes & Shields, Mont. S&S.
OX « } 2590 and 12% 97; Com: ee V. Mart in, Pa. Sup. ee
4 (March Term, 1974). “ALL of the cases just mentioned are
ch Pi ree ee 7% ahiacty
they arise.
A. Evasion of the Purman Decision :
The narrowest issue raised is simply whether the majority
of the North Carolina Supreme Court in Wadde)) read Furman
correctly and enstted Furman permissibly in holding that
Fourmen invalidatea only the 1949 “recommendation” provision |
of North Carolina law, rather than the underlying death penalty.
s tortured as that holding may seem -- being the lethal equiva-
lent of a state-court holding that Brown v. Board of Fducation
required the closing of the public schools instead of their
deregregation -- 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 US. 948 (1971) (alternative ground); Thomas
v. Lecke, 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
e * —-* ° ag .
- - - - . - ~~ - <-.* - — —-
Pores attempted to aistinguish Jackron but held alternatively
that, if Jackson did invalidate New Jersey's non volt provision,
j\ that provision rather than the death penalty would be rendered
} inoperative. In both cases, then, the state-court “reaction to
” ° ~~ — ———- —— “eee ee __—+- —_
'
decisions of this Court ee a cmpness statutory death-
A] °* Oe %e* i pte tf care °?" so -- o~cOapes samme 0 Be Oem e+ to Ff © oe --.
| Sentencing a nae which esknewn numbers of capital
!
I
; defendants had escaped whe death penalty while others had uncon-
1
|
i stitutionally been sentenced (and many sent) to their deaths, was
j
|, to sever the escape clause, treat it as though it had never :
} existed for constitutional as well as state-law purposes, and
esadenn those Qenked ‘its. henstite to die. In both cases, this
——
Court der Lined the gambit. - +
=e. ° -
What a majority of the North - Carolina Supreme Court has
<_< -
= +
—-* “
gone” here; --aYbeit by a “soneshat “different poshanss im, is-much <--->
>? —- o~ * . —— a é . oo —~ «mee «1 e+ me - .
the same thing. —. a quarter of a century soacguamal “enactnen
'
|
|
| of the legislative Spesemmentekian® procedure in 1949 _ enact-
|
——_——_-
carolina legislature in 1974, countles ss men died and others
guilty of identical crimes were spared death pursuant to an
arbitrary selective peooddure | which -- as the North Carolina
Supreme Court itself has ceeeranens -- falls unmistakably within
the ban of Furman. The response of four Justices of that court
“© =. -- _—— oF a .
|
|
{
| not have been spared (under an appropriate manipulation of state
-
severability theory), the fact that they were spared is to be
|
| as isregarded in determining whether the continued application of
the pre-Furmin North Carolina statutes authorizing capital
} ‘
- ” i - ‘ o* oe
ment of a new post- Furman | death- sentencing procedure by the North |
is to say ess sentially that. because the persons opeees should \
wou ]
be Thirty
ro] ince
x +9} }
by whi I
J
4 oO t } C4
L } )1
‘ ~ .
e an iss
( as «to
ly cruel
sed to the now closed and hence forgotten column
d be arbitrary and selective,
and hence a
in the wake
and unusual punishment,
oe
~ ’ <—- ~
one more persons are thus tossed into the d
upon the capital punishment ledgers of North
1949, Whether the particular state-law
hat calculation is accomplished
cece
of
Lua
utional contemplation is, we
ie that this Court should address, if its Fu
} e the vitality and respect that the Supre
C inds.
a . - ~ _t
- -e ros « a
- - ~ “ he =é on =. ~—
"@® -e@s & — . .
» 22 «
oe ° ° . - -—--* ~ . a _—+s « — . . . ° - . -—--
|B. The Lawless Imposition Of Death Penalties
| The second issue presented is whether the re-institution of
H ene death penalty which the North Carolina Supreme Court achieved
ti
iby amputating life from that State's life-or-death sentencing
!
i » «
{statutes is a result that can constitutionally be effected by any
1 ” ;
I;
device of judicial decision wholly ungoverned and undirected by |
a vant, ares
i
lileqislative action. It is, of course, generally true that the fed~
| .
i aes
eral Constitution is not concerned with how a State divides it law-
| |
‘
, er
making functions between its judicial and legislative organs. But |
: ;
‘that generalization cannot be permitted to sweep away the funda-
‘
pmental concerns of the Eighth and Fourteenth Amendments against
| °
judicial imposition of harsh criminal punishments unauthorized by
‘law and in excess of the penalties provided by “the valid laws of
ae
‘the land." Gisccto v. Pennsylvania, 382 U. S. 399, 403 (1°66).
i ~ ™Réeent scholarship has understore iQ that the English Bill of ©
t ‘ =
Rights, from_which the Eighth Amendment's prohibition of “cruel
and unusual punishments” was @erived, was in large measure directed
, 15/
toward preventing the exaction of unauthorized penalties. That
125 5/ Granucci, “Nor Cruel and Unusual Punishments Inflicted:" The
‘Original Meaning, 57 CAL. L. REV. 839, 845-847, 852-860 (1969). it}
is true that Granucci also find that the American Framers im-
lperfectly understood the English background of the cruel-and-un-
lus ual-punishment clause, and that they themselves were principally |
‘concerned with the problem of intrinsically barbaric penalties. j
‘But this does not support a conclusion that the Framers meant to |
ldiminish the scope of a guarantee that they believed basic to their
| traditions (see 3 ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS
j}ON THE ADOPTION OF THE FEDERAL CONSTITUTION 447 (1863)), or to re- |,
iject protections of the citizen long preserved by their English
heritage. Indeed, as carly as 1635, American settlers had “con-
\ceived great Ganger . . . 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 of grounds of laws, in resemblance to |
'a Magna Charta, which being allowed by some of the ministers ani
‘the general court, should be received for fundamental laws.” |
(WHITMORE, COLONIAL WS OF MASSACHUSETTS 1630-1686, at 5 (1889).It,
should hardly be surprising that the crucl-and-unusval-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 sineie evil. - A
- 23 . - ;
[13D] BEST COPY AVAILABLE
———
ep ome 6 - ee we ee = +
function remains a vital office of the cruecl-and- unusual punish-
16/
ment clause today, although it certainly is not the exclusive
lv |
‘focus of the clause. As this Court pointed out in Weems ¥.
1
iUnited States, 217 U. 5S. 349, 376 (1909), the Framers were ceger
ee to 1, te chs See ee ee ;
ito assure “that government by ‘the people, instituted by ‘the ‘
'
Constitution, would not imitea te the conduct of arbitrary monarchs ."
i! - - = - ~—-- --. - “* =» © - > * e y° ° and .
! |
i The conjunction of the words *“crucl" por ‘Sete in the Eighth A
!
t !
Amendment can hardaly be regarded as acedéental if one appreciates
I:
ithe relationship, within a basically pular and democratic gov-
-ernmental structure, of the dapgers of lawlessness, irregularity,
18/ gE ere OT Seale thy a
‘arbitrary selectivity, and cruelty. For, in such a structure,
harsh and unsufferable criminal penalties are most likeiy to
spring €rom devices that evade the rule of law or subvert the or-
@inary protections afforded by its regularity and generality.
- Duc Process” 6f Law, too; insures aguinst the imposition of
|
|
|
x
|
|
|
crimina] 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). . Lo ame --
1G/ See Wheeler, Toward a Theory of Limited Punishment: An
Examination of the Eighth Amendment, 24 STAN L. REV. 83S, 855-856
(1972).
; 22/ Sce Weers Ve United States, 217 U. Ss. 359 (1909); Robinson
+ \ vs California, 370 U. S. 660 (1962); Furman v. Georgia, 408 U. S-
238 (1972). And see note 15, supra.
aa vais
I 16/ See section I1(C), pp. 28-44, infra. .
| 19/ This relationship is developed in Brief for Petitioner,
| Aiko ns Ve California, 406 U. S. 813 (1972) (No. 68- aerne pp. 13-
| 27, 39-56. + Pe-eeg + 4s fh
| - > 74 ~BEST COPY. AVAILABLE
[14b}
0 Oo] 7
—
ee es ee eee -
"the essence of [the) . . . principle of legality is limitation on
jpenalization by the State's officials, effected by the prescription
: 20/
Jand application of specific rules. So rudimentary has this i
principle becn to Arerican notions of Due Process, that unauthor- .
" 2V/
'Gved criminal penalties have rarely been imposed in this country;
‘but, on the rare eccasions when they have beens cxamined by this
‘Court, the Court has treated ‘them as self-evidently void to the ~ *
e : !
extent that they exceeded what was authorized by valid legislation.
(Ex parte Lange, 63 U. S. 163 (1874); Ex parte Mills, 135 U. S.
(263 (1690); In re Konner, 151 U. S. 243 (1694). In this century,
|
‘the root principle has been most commonly observed in its off-
' .
!
ighoots: the vagueness doctrine as applied to penalties, Giaccio
H
iv. Penr ‘lvonia, 382 U. S. 399 (1966); the lenity principle,
|
wy 22/
adnor v. United States, 358 U. S. 169 (1958); and this Court's
one <a eee eee oe oe ee ee ee
| 20/ Hie.t.Ie, Gn “ae LRAL PRI Cir LES OF CRIMNT! NAL LAW 28 (2a ed. 196C) .
' -
loy/ But see-Ashton v. Kentucky, 384 U. S. 195 (1966).
lo2/ “{wJhen choice has to be made between’ two readings of what
l!conduct Congress has made a crime, it is appropriate, before we
tonoose the harsher alternative, eo require that Congress should
have spoken in language that is clear and definite. We should not
,derive criminal outlawry from some anbiguous implication. [Cita-
i 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
Imoans that the Court will noc interpret a federal criminal statute
I 0 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.
|
|
saomnediioneinonetiae Se
Rate make (sb) | ee
focal to undertake either the judicial fashioning of
‘crimine) punishments, United States Vv. Evans, 333 U. S. 483 (1948),!
judicial fashioning ef procedures for the imposition of
ee
nr
=
-
=
oe
criminal punisluments, United States v. Jackson, 390 U. Ss. 579
' = — ee - a .
; 23/
' - “
(1vG6). Under the rule of iaw guaranteed by Due Process, the
, crent con of criminal sanctions is, quite simply, “no part of
i fjuduest} . . « Guties, United States v. Reese, 92 U. S. 214,
The question here is whether the North Carolina Supreme
Court bes infring.4 that principle, or whether the state-law
characterization of what was done in Wadéell as a mere applica-
tion of severability doctrine saves palpable judicial promulgation
24/
of the harshes } penalty known to mankind from the constitutional
ee ee o-- ee ee ee ee
| 23/ “It is one thing to fill a minor qzup in a statute -- to extra-
polite from ite ger rei design details that were inadvertently
lhomitted. It 3s quite another thing to create from whole cloth a
}cuomplex and completely novel procedure and to thrust it upon un-
‘willing defenients for the sole purpose of rescuing a statute from)
a charge of unconstitutionality." Id. at. 580.
'24/ See the opinion of Mr. Justice Sharp, dissenting in State v.
\Waddell, 282 N.C. 431, __.» 194 S.E.2d 19, 48 (1973):
|
i "This Court, which has consistently
| deplored the encroachment of other
i 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
f death.'”
\|
j - 26 -
'
[16b} °
. :
| OQ | oO
“charae of lawlessness. The question 1 not, of course, whether
|!
‘four or three Justices of the North Carolina Supreme Cart more
ni ly guessed what the North Carolina legislature might have
|
t
‘wanted in the wake of Furman, in light of the fact that its last
i pronouncesent on the subject -- a quarter-century old -- was long
isnealed together with the irremediable fates of those who had bee:
-chocen to live or to die under the discretionary sentencing regine
i 25/
“gor which it then umsistakably opted, kather the gqucstion is
iwhether judicial fiot, wath nothing more than the profession of
‘that kind of quessvork to connect it with the regular an@é accepted
hmethod of providing by law for the punishment of crimes, can with-
lstand cserutiny under federal constitutional guarantces Gesigned as
|
'
}
| Limitalions upon the lawless exaction of overbearing and unauthor-
a a
'25/ State v. Waddell, 262 N.C. 431, - 194 S.E. 22 19, 26
, (1973); ftate ve Mathis, 236 N.C. 508, 53 S.£.2d 666 (1949);
and sc
————_— ee ee ee
o 2 «
{1 7b)
——_+— ame << oa
——_—
—=.
— -
—-
——
oe
=> violates Furmain'’s prohibition of arbitrary selectivity in the
'-: 3)0, and therefore in violation of the Eighth and Fourteenth
C. The Perpetustionof Arbitrary Diseret jon_in_the
Sclection of Those ho Mast Dic.
The third issue presented is whether the capital trial
procedure approved for North Carolina by the Waddell decision
adieinistration of the death penalty. Although the prevailing
opinions in Faurmen differ somewhat regarding the questions left
unanswered by the Furman holding, they all condemn at least any
system of capital punishment in which some persons are chosen to
live and others identically situated are consigned to dic by
26/
‘jrregular and erratic sclective processes. The form of those
—_— mone 2 ee ee
.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)
sheared the view that the death penalty is unconstitutional pcr
fe, reygardices ef the presence OF absence of discretion in the
procedural system whereby it is applicd. — :
Mr. Justice Dovglas 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 Furman,
and companion cases unconstitutional under the Eighth and Four
teenth Amendments because they were the result of a procedure |
which @iscriminated against certain defendants upon the basis
of “race, religion, wealth, social position [and] class" and
which “[Ggave] 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 constitutionally impermissible in all circumstances"), 408
U.S. at 205, since he found that the death sentences under re-
view were “wantonly and... freakishly imposed,” 408 U.S. at
Amendments. “{O})f all the people convicted of rapes and murders ,
. ee » Many just a6 reprchensible as these, the petitioners are
among a capriciously selected random handful upon whom the
sentence of death has in fact been imposed.” 408 U.S. at 309-
310 (footnote omitted).
Mr Justice 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 unconstitution-
al when it “is exacted with great infrequency even for the most
atrocious crimes and . . . [when] there is no meaningfrl] basis
for distinguishing the few cases in which it is imposed from the
many cases in which it 4s not." 408 U.S. at 313. _
ork -
i See Corronweelth v. A_Juvenile, 1973 Mass. Adv. Sh. 1199, 300
2y/
N.b.2ad 434 (1973). What is important is their result: a
j
processes can hardly be thought constitutionally dispositive.
“ Jawless and capricious dispensation of life and death, in
which death sentences are "freakichl imposed.” Furman_v.
i ; mt i a
Georgie, supra, at 310 (Mr. Justice Stewart, concurring) .
in In considering whether the Waddell procedures comply with
*rurmaun or whether the North Carolina Supreme Court has merely
Gisplaced the focus, lowered the visibility, diffused the
responsibility, and thereby increased the predictable arbitrari-
-
, ee : i Ae ; P
f ness and Giscrinination of persisting discretionary processes
| 28/
{
for the administration of the death penalty, this Court will
— eee oe eee oe ——_
27/ In this case, the Supreme Judicial Court of Massachusetts i
| ruled that Farmin invalidated a death sentence under a “mandatory,
@eath 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
62) or as a juvenile Gin 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
| “diserctionary imposition of the death sentence," 300 N.E. 2a
i at 442 (emphasis in original), regardless of where in the proces®
/ this discretion was lodged.
28/ The discretion which is concealed but inevitable ina
purportedly “mandatory” death-sentencing system is likely to be
influenced by impermissible considerations to at least as great
an extent as the visibie discretion that Furman found unconsti- |
tutional. North Carolina's experience with a “mandatory” statute
prior to 1949 reflects this point. Between 1910 and 1949, 75%
of al! 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
BDEBRE, A BRIEF HISTORY OF CAPITAL PUSS CHMENT IN NORTH CAROLINA, |
——— a
~—eee -
v
.
“+
,
‘+
*
»\
: - 29 -
| Tables ? and 3, (North Carolina Office of Corrections, September
|
; {19}
- = - e. - “29 eee & “erro Ue 7? -_ ————_—— re ee ee ~~ of
want to consider the following characteristics, among others,
of North Carolina law and practice:
2u/ cont'd.
1974)). It appears that under the “mandatory” systeim created
by the Weddell deco sion similar forces are at work: as of June
1, 1974, 24 of the 34 defendants condenned to die for crimes
comaitted between January 18, 1973 (the date of Waddell) and
April &, 1974 (the effective date of the new North Carolina
7
.capital punishment statute), or 71%, are non-white, approximately
the percentag? of those condemned to die who were non-white unde
the pre-Furman “mandatory” system. Death sentences have been
affirwed or imposed under the Waddell procedures in the following
_ . §tate_v. Jarrette, 264 N.C. 625, 202 S.E.2d 721 (1974);
State v. Crovdcr, 265 N.C. 42, 203 S.E.2d 38 (1974); State v.
Dillard, 285 N.C. 72, 203 &.E.2a 6 (1974); State v. Noc)), 284
N.C. 670, 202 $.E.2d 750 (1974); State v; Poole, Moore County
Superior Ct., No. 73-Cr<-2730 -(August -17,-1973), rev'd -._- -N.C.
_. 9-203 S.E. 2d 786 (April 10, 1974); Stato v. Monk, Sew
Hanever County Superior Ct., No. -73-Cr-6476 (August 24, 1973);
State v. Henderson, 285 N.C. 1, 203 S.E.2a 10 (1974); State v.
Britt, Robeson County Superior Ct., No. 73-cr-6567 (September
6,°1973), rev’a _ N.C. S.E.2@ _~", N.C. Sup. Ct. No.
36 (Robeson) (May 15, 1974); State v. Spicer, New Hanover County
Superior Ct., No. 73-Cr-8034 (September 12, 1973), rev'd ___
_ "$.E.28 , N.C. Sup. Ct. No. 25 (Hanover) (May 15,
1974); State v. Ward, Edge :ombe County Superior Ct., No. 73-
Cr-6706 (September 19, 1973); State v. Fowler, _. N.C. Ue
203 ©.1.2a 803 (1974); State v. Honeycutt, 285 N.C. 174, 203
S.F.2d 8644 (1974); State v. Bell, Robeson County Superior Ct.,
No. 73-Cr-12551 (October 18, 1973); 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 (November 8&8, 1973); State v. White, Alamance County
Superior Ct., No. 73-Cr-12672 (December 6, 1973); State v. Brown
Fdgecombe County Superior Ct., No. 72-Cr-7238 (December 9, 1973
State v. Hines, Ragecombe County Superior Ct., No. 73-Cr-7239
(December 9, 1973); State v-. Walston, Edgecombe County Superior
Ct., No. 73-Cr-7378 (December 9, 1973); State v. Albert Carcy,
Mecklenbura County Superior Ct., No. 73-Cr-6158 (Decernder ll,
1973); Stute v. Vick, Beaufort County Superior Ct., No. 73-Cr-
6687 (December 12, 1973); State v. Lampkins, Forsyth County
Ir
,
.
‘
-
-«e
Superior Ct., No. 73-Cr-43023 (January 19, 1974); State v. Pruitt
Cumberland County Superior Ct., Nos. 73-Cr-35545, 35546 and 35540
(January 29, 1974); Sta
—— ee ee
No. 73-Cr-32521 (January 31, 1974); State v. Woods, Catawba
te v. Williams, Wake County Superior Ct., |
County Superior Ct., Nos. 73-Cr-20546 and 20545 (January 28, 1974)
State v. Patterson, Forsyth County Superior Ct., No. 73-Cr-22457 |
(February %, 1974); State v. MeCall, Transylvania County Superior
Ct.,Nos. 73-Cr-1028 and 1629 (February 9, 1974); State v. Averys
mectic County Supersor Ci., Mo- Wp—or- 2287 (febrvary 2/- 19/4):
) aah. A
-<-<-
—
=--- --- — ———
— ——
ed
o——- —— =
1. Prosecutorial Discretion.
In North Carolina, the Solicitor is charged with the duty
to “prepare the trial dockets [and] prosecute in the name of
the State al) criminal actions requiring prosecution in the
superior and Gistssct courts of his district," N.C. Gen. Stat.
_"-* > -~ . ee
G7A-61 (1971 Cum. Supp.). He is thereby given broad and
essentially unreviewable authority to initiate and terminate
prosecutions, Stetc v. _Ioesch, 237 N.C. 611, 75 S.E.2d 654, 656
(1953), including rot only dhaotete discretion whether and what
to charge, but also absolute diseretion to bring an indicted
defendant to trial upon lesser charges than those set forth in
=
the indictment, Sites v. Allen, 279 N.C. 115, 181 S.E.2d 453
(1971); and see State v. Koy, 233 N.C. 558, 64 S.E.2d 840
(1951). The North Carolina courts steadfastly refuse to review
prosecutorial decisions. The leading case is State v. Casey,
159 N.C. 472, 14 Ss. B. 625 (1912), where an J appellant, prosecuted
and convicted for second degree rarder by poisoning, argued that
28/ cont'd. . ae <a hace @ ‘ —
State_v,. MclLaughlin,Robeson County Superior Ct., Nos. 73-Cr- -18024,
74-Cr-228, 14-Cr-229, 74-Cr-230, 74-Cr-231, 74-Cr-232 (february
26, 1974); ate v. Berns, Onslow County Supes ior Ct., No. 74-
Cr-1012 (™ es 1, 1974); aoe :@- ° °
ee eee cee eee
there was no evidence of this crime; that she was either guilty
of first degree 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.E. 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 Eichth
or the Pourteenth 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, se to hedge its prosecuting attorney about
with ‘guidelines’ that he becomes a mere automaton, esting on
the impulse of a computer. and treating all persons accused of
criminal uetued ounithe alike.” e meee “e-
Without any guidance whatsoever, then, a-Solicitor is free
to muke the decision whether an indictment will be sought for
first or second degree murder, for rape or assault to rape. He
may thus “without violating [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
Goubtless accounts in considerable part for the striking fact,
« vee, Se 29/
for cxample, that there have been only two convictions for
-e- = © “es © - -_ - —_— te = of -<
eee ae ee
297 State v. Poole, Moore County Supeiior Ct., No. 73-Cr-2710
(August 17, 1973), rev'd _ N.C. ____, 203 S.E.2d 786 (April 10,
1974). State v. Henderson, Alamance County Superior Ct.,
No. 73-Cr-7771 (Septcmber 5, 1973), aff'd 285 N.C. 1, 203 S.E.2da
10 (March 13, 1974), petition for cert. filed, June, 1974
(No. 73- ). The petitioner in Henderson was also
convicted and sentenced to die for the crime of rape.
» £2 «
ome me 6 ’
first degree burglary during the past year of Waddell's imple-
o*
rentation in a State where there were about forty convictions
sy,
annually for this crime in the recent past, = where 39,210
“burglaries and hous sebreakings" were . reported in 1972. The
~ -_ -~- * _—_ -_--
conclusion is inescapa»’*e that Solicitors have simply 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 pon nalty case, where the conviction and
sentence were vacated ay a new trial eudesed because of pro-
cedural error, illustrates the Solicitor’ s sien sts discretion
under the regime of Waddell. In State v. Spicer, N.C. sup. Bee
No. 25 (New Hanover), decided May 15, 1974, two Persons were
. - _- -~-
- -~-- _—-- -
trial and convicted for murder during the course of an armed
32/ ' 0S Se MT Sabian
robbery. A third person, one ‘Brailford, had oe plan the
--- - -- - -- a
- _=- - ~~" or > —_——-
30/ In 1955, the North Carolina Department of Justice ceas net
keeping separate statistics for persons convicted of First
Degree Burglary and Second Degree Burglary. The Biennial a
of the Attorney General,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 “Ot?.cr
Dispositions,"“ibid., Vol. 33 at 377.
3)f FPEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF |
JUSTICE, CRIME IN Tix UNITED STATES 1972 (Aug. 1973) at 74. The |
FBI Uniform Crime Report statistics reflect reported crimes, not
convictions, and the reported “burglaries and housebreakings” are}
not necessarily equivalent to the total number of statutory First
Degree Rurglaries whic! curred in the State during 1972.
32/ The conviction of Isaac Monk, also found guilty of first
degree murder and sentenced to death in this incident, is pending
on appeal in the North Carolina Supreme Court. Monk v. State,
New Hanover County Superior Ct., No. 73-Cr-6476 (August 24, 1973).
a?
- 33 -
_S
{z3bt 1
a ee
- oo ae -= > ..
a finding that he was an accomplice either
robbery and was to share in its proceeds, but he was not charged
in the marder although his testimony “permitted the jury to make
in the robbery or the
murder, or both.” Id., slip op. at 2. The Court thus described
Brailford's role in the crime:
“(Tj 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 Prailford
originated the plan to rob his employer and ex-
plained the setup at the plant.” re
Id., supra, at 10-11. er eo ee
— -- -_ —— oe eee ee -_ = ——— ee eee ee ——— ———— = ~—<—-.
°
— - .
-
- Ff sz
-- =» ge eee —a »
os coe = es
a @- @ o* eee ——— ane @&é¢e - - -- -
e o = o e
- oc a
- - - mre;
°
o o — °
<< - = -
ace ° @ oe
° ° o ° -
= @ lal 2 - - ~ - — -F —_
°
_—— —_
©
- °
° ° o
— ~ =
op -e ece« o-
e o & ere o- © e
° ee
°
- ~ .
a = = -
— a
. - °
7 .
.
17Arwi
—
——SSS Ss
———
=. - ———_—<-- Ss ae
—— ee ee ee
———
—-— ow
, lated: the discretion of a Solicitor to accept a plea toa
with intent to rape and of assault with intent to kill, and
2. Plea Yorgeining. :
Under the Waddell} procedures, there is no limit on the
power of a Selicitor to accept a plea of guilty to a lesser
include? offense by a defendant charged with a capital crime,
or te nol pros a capital indictment oe ee is unclear
how much plea bargaining in capital cases soente th North
33/
Carolina, but the eritical point is that it is utterly unregu-
lesser offense in a capital case being quite as untrammelled as
the freedem of a jury to recommend mercy in a pre-Waddell, capital
case. One instance of that discretion is State v. Wiggins,
Bertic County Superior Ct., No. 73-Cr-2333, in which a 14 year
old defendant was indicte@ for the rape of a nine year old girl, ;
a potentially: capital offense. On rebrvary 19, 1974, the defend-
ant was permitted to enter a guilty plea to charges of assault
received sentences of fifteen years and five years.
33/ Guilty pleas are said to account for up to 90% of all
criminal convictions in the United States. PRESIDENT'S
COMMISSION O8 LAW ENFORCLMENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT: THE COURTS 9 (1967).
_
—
——
—
ee
—_——
-_—_- ———_
Such cases doubtless reflect the long-recognized function
of plea bargaining under a purportedly “mandatory” sentencing
statute: it “provides the opportunity to individualize justice
*
. . « « Certain mandatory provisions of the statutes which in
a particular situation seem unduly harsh may be avoided and a
punishment selected which is best suited to the defendant who
34
has already acknowledged his guilt.”
“*
———w
.
34/ Heath, “Plea Bargaining -- Justice Off the Record,"
9 WASHBURN U.L. REV. 430, 455 (1970).
—— —
— a a
i
oO
#)
ae
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
there is any evidence to support the finding of such an offense,
a defendant may derwand a lesser- included-offense ins struction as
26/
a matter of right. N.C. Gen. Stat. §15-170 provides that:
““Cujpon 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 charged, or of an
attempt to commit a less degree of the
same crime . . . . . i
-—— —— =
asf “If. . ethere is any evidence, or if any inference can be ;
fairly deduc ned therefrom, tending to show one of the lower graces’
of marder, itis then the duty of the trial court under appropriate
instructions to submit that view to the jury." State v. ree
284 N.C. 384, 391, 103 S.1.2d 452, 456 (1958) (quoting State ve |
Spivey, 1M N. C. 676, 686, 65 S.E. 995, 999 (1909) ); State v.
Childress, 228 N.C. 208, 45 S.E.2d 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 charcoe 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. Rosenman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v.
Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. “Rrown, |
227 N.C. 383, 42 S.6.2d 402, 404 (1947); State v. Cox, 201 N.C. |
357, 160 S.E. 358, 360 (1931), and a trial judge has discretion
to charge that a defendant is either guilty of the capital crime ,
or not quilty of any crime. State v. Mays, 225 N.C. 486, 35 5S. E.2d
|
|
i
494 (1945); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955);
State _v. Hairston, 260 N.C. 220, 1865 S.E.2d 633, 642-643 (1972);
State v. Beard, 207 N.C. 673, 178 S.E. 242 (1935); State v.
Satterficld, 207 N.C. 118, 176 S.E. 466 (1934). However, if such
a charge is given and if a defendant is convicted of the lesscr
included offense, the conviction will nevertheless be affirmed
on appeal, even if it appears irrational on the facts of the
case. Sce State v. Matthews, 142 N.c. 621, 55 S.E. 342 (1906),
and discussion, infra.
ing has been
is made by the
142
N.C. 508, 142
174 S.E.2d 132
Cc
im Seu
SS ebe ae
cA
ts
stablished
defendant."
158 (1965). See also,
E.2d 337 (1965);
(1970).
264 N.C. 524,
State v. Phillips.
State v. Drake,
State v. Todd,
c
we
38
{20b]
529,
264
8B ete App.
And N.C. Gen. Stat. § 15-169 provides that:
"“lo)n the trial of any person for rape, or
any felony whatsoever, when the crime chuoraed
includes un assault against the person, it i:
Jawful for the jury to acquit of the felony and
to find a verdict of guilty of assault against
the per 1 indicted, if the evidence warrant
such a finding . -« « oe”
The right to a lesser-included-offense charged is cons}
fo 3 t t in North Carolina that its omission is held to he
reve ible error even when the defendant fails to request such
a cherge. Stat Wagoner, 249 N.C, 637, 107 S.E.2d 63 (1959);
State v. Ric , 276 N.C. 361, 172 S.E.2d 535 (1970). See Ste
v. Moore, 275 N.C. 198, 166 S.F.2d 652, 661 (1969); State v.
DeGraffenreid, 223 N.C. 461, 27 S.E.2da 130, 132 (1943). The
Supreme Court of North Carolina has frequently reversed convic-
367
tions for capital offens« because the trial court failed
32/
to give a charce on second degree murder, voluntary
36/ The rule in North Carolina is that “the judge's failure tc
submit the question of defendunt's guilt of the lesser included
offense is not cured by a verdict convicting the defendant of
the highest offense charged in the bill," State v. Joe Freeman
275 N.C. 662, 170 S.E.2d 461, 465 (1969).
37/ State 1 Newsome, 195 N.C. 552, 143 S.E.. 187 (1928); State
v. Perry, 209 N.C. 604, 184 S.E. 545 ()936); State v. Gause,
227 N.C. 26, 40 S.E.2d 463 (1946); State v. Knicht, 284 N.C. 324,
103 S.E.2d 452 (1956). When the State attempts to prove "“Will-
! > ** . “4 Md fi} , y ~ . ”
'ful, deliberate and premeditated killing, N.C. Gen. Stat. § 14-1
iwhich did not occur during the course of a felony and was not
|committed hy poison or lying in wait, the jury may decline to
return a first degree verdict and convict 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 aeqree or second degree,” N.C. Gen. Stat. § 15-172, and
isince “the jury alone may determine whether an intentional kill-
where no judicial admission of the fact
214,
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125 S.E. 617
gE.2G 474 (19
4 676, 1&5
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S an assault with inte
N.C. 717, 100 S.E.2d
orth Carolina has occa
State v. Rryant, 280 N
State v. Aljlen, 279 N
le v. Rentley, 223 N.C
neve. reversed a conv
the ground that there
an offense to the jury
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A3/
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_
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leve) of discretion mm
—
life or death verdict
muilt of a capital offense or of
ction to submit uch lesser of
ction to commit for them.
tras on the New Death Row," New
»?
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7
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eau
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i if
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rrolina Supreme Court ruled thi:
Supreme Court had
{32b)
7
a jury to recommend mercy, h
? nt rather than de ath, for
yi of Clase CO victed of fi
r, arson, rape or burglary; .
Sor are still heaving §1
ii ce of <l black man ci z ca
oO house and stealin al 21
° The ho is¢ Wai occupicd, t
cad at night, so the offen:
} , £ ,
ree burglary. Perhap influ
alte: tive availeble, the }
! thus sparing hi Christ
> ea I
h I > but ruising the questic
included
Thus, un
4
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A SOS OED
O S |
4. Executive Clemency.
The North Carolina Constitution provides that:
[TJ he Governor may grant reprieves, conmutations,
and pardons, after conviction, for all offenses
(except in cases of impeachment), upon such
conditions as he may think proper, subject to
requletions preseribed by law relative to the
manner of applying for pardons. Article III,
G5(G).
Governors of the State have, by the exercise of this cleinency
—_
-
.
Me
-
"
~~
~
‘
+
-
_
-
prisoners. Between 1903 and 1963, the sentences of two hundred
"thirty-five (235) of three hundred fifty-cight (358) condemne23
prisoners were commuted. The chicf executive has thereby commu‘
65.G percent of the death sentences imposed in the State over a
sixty year period.
The Governor's diseretion to spare the lives of condemne:
felens 38 absolute. The Constitution ‘reserves to the legisiuture
the right to preseribe 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 originelly conferred upon the Governor by
Article IITJ) that: E
{[iJm 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, rigid
guide lines are neither necessary nor desirable.
Jerniaqin v. State, 10 N.C. App. 562, 179 S.E.2d
788, 792 (1971).
{3 3%)
lives of a substantial proportion of condemned
LL ALLL LLL LA EL
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{ 341.)
| O O
ieteney Of The Death venalty With Contemporary
| Niehth Amendment standards are not static, and the prohibi-
tiowiof the cruel-and-unusval punishment clause are not “confine[d]
. . . to such penalties: and punishments as were inflicted by the
Gtuarta.” Weems v. United Btates, 217 U. S. 349, 372 (1910). In-
betead, the elauuse is “progressive, and is not fastened to the
obsolete but may accuire meaning as public opinion becomes ecn-
-
lie} by a humane justice," Id. at. 378, and informed by “the
»*36 ‘ , 1 a. ee. a y
| Y- in Bon came , "4 2 4 —
light of eontemporary human knowledee." Robi nv. Calitiornira,
i ” e :
(370 U. S&S. 660, 666 (1962). There was no disagreement among th
\j
'
Just who re hed the issue in Furnnan v. Georgin that this cvo
i
|
jlutionary standard authorized the pe3 iodic Eighth Amencinent re-
a
4
e
yor
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‘IMarshall); at 383 (opinion of Mr. Chicf Justice Burger); at 409
(opinion of Mr. Justice Blackmun); at 429 (opinion of Mr. Justice
\
|
|
{i
'' powell). Such a re-evaluation of the penalty of death is partic-
{|
|
' . . . u . « - aé« on
Nwlarly oppropriate at this historical juncture, for three princ:-
ii
pal 3« NS $
h
1]
s ‘ = —S
iis rent in an age when “contemporary human knowledge,” draws
’
‘hupon advanced medical science and scicnces of human behavior. Wwe
| Ua}
af 1 — * soure and motiva-
are no longer so uninformed about the complex sources and motiva
tions of anti-social behavior as to maintain the simplistic and
l-bequiling notion that the threat of ceath deters serious crime;
nor cen we idnore today the the truism t
a 46/
hat government remains
W"the 3 ent, the omnipresent teacher" even when it chooses to
}; AG/ Glin: iv. United States, 277 VU. S. 438, 485 (1928) Justice
bhbramcdeis, Gai cntcing).
'
Ce ed
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waaay
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:rcred Wien
iy} ned
wae, 5
of the
t On Og 1
12 Gimanu
aot, opt
thi S io
ifely iso)
(
;
of
; ,
it )
‘
it
time, socicty
ating aangert
ment,
ies
ed.
- . ? s+}
t contemporary Numan knowledge casts doubt
al punishment in achieving the legitimate
, it- casts doubt on the legitimacy oO:
shih Amendment te. ‘ If it cannot bk
{h penalty 3 : superior dageterrent umd
) pel ty # SU a): } te. ;
the death penalty is necessary to isolate
inforce- mora) standards of (if retributio!
on the Cuillotine, in CAMUS, RESIST/.NCL,
) )
eo «4 (1° si je - :
doubt has settled over the keystone of
Its advocates can no longer Spee with
stat ent of the form, 'This man wit has
oe kept it’ had a univocal or agref 1 mean-
; not attach to the meen of this
} shaken t} conti. nee that we are gecn-
ish the case yhere a statement of this
where it is not.” H.L.A. Hart,
try (1968), at l. . .
- ~ * . = = ‘~- -
ln
ot O O
is connidered a legitimate aim of penal sanctions) a civilized
society's measure Of justice, then it is surely impossible for any
of the North Carolina Supreme Court: to “extinguish, after
untcollable suffering, the most myste rious and wonderful thing we
i 49/
ty now, human life.” Mr. Justice White wrote in Furman that:
|
+ “The imposition and execution of
the death penalty are obviou: ly crucl
|! in the dictionury sense. But the pen-
alty has not becn considered crucl and
r unusual punislscent in the constitut jonal
sense becuvse it was thought just ified
{| ° by the social ends it wes dec red to serve.
| At the moment it ceases realistically to
\} further these pw pore S however, the
| emerging question is wHether its imposi-
tion in such circumstanc would violate
the Eighth Amendment ,~" 408 ¥. Se Bt saz
to be rarely imposed, and when empirical data fail to substantiate
J
'
| (jd. at 313) in any case, the question is squarely presented wheth-
|
thnt its imposition is “
'
|
|
At a time when the death penalty is and inevitably will continue |
|
| |
of substential service to criminal justice”
fer death as a punishment for crime is consistent with any morality
that ovr society can forthrightly accept.
|
'
- ——
| Second: The rarity with which the death penalty is imposed
'
ltoday signifies repudiation of its regular use. The Court in
|
Purrnen confronted an accepted system which sent an exceedingly
c
50/
small nusber of persons--who were, -for the most part, members of
49/ plack,Crisis in Capital Punishment, 31 MD. L. REV. 289, 291
i
| 50/ “The most salient characteristic of capital
| punishment is that it is ainfrequ ntly applied
t, ~ « e {A)11 available data indicate that
I judges, juries and governors are becoming in-
i creasingly reluctant to impose or authorize
i the carrying out of a death sentence."
PRUSIPUNT'S COMMISSION ON LAW ENFORCIMENT AND
- i — «
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The cnormity of the process forbids its resumption without
| '
,
life and inereased respect fer the dignity of man inevitably in- |
| ;
' . ~ . . '
creace the awesomeness of the notion of condemnation and cxecution.
‘Yhus executions, which were once routine occurrences, had ceased |
‘
'
. . . a ~ on . . P . ‘
ifor a periot of five years even prior to Furmen as this nation {
ey i
I . ' or ad
laconived over the prospect of their resum tion end over the inevi-
I" J J
| . ay
ftable and sobering possibility that human error or a denial of duc!
I 53/
lore cone contd send a man to his death. }
| i
; {
i
lthe prior judgment of this Court. If, after a lapse of seven
ltore. the United States is going to return to killing people,
‘ment ntendards all that that implics.
"@
thic Court should first consider under the relevant Eighth Amend-
i
!
!
---Jt is ineontrovertible that an impending execution inflicts |
severe prycholoyical anguish and mental pain vpon a condemned men.
'
Uneer a leqnl syster which postpones execution for periods |
|
lmeasured in years in an etterspt to assure its conformity with due
‘ |
process of law, the wait between the imposition of sentence and
the actuel infliction of death exacts a severe tol’.
, "7 : l
Ac the California Supreme Court has pointed out,"the process
of carrying out a verdict of death is often so degrading and
brutulizing to the human spirit as to constitute psychological
torture." People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 894
(1972). ‘ .* .
53/ See Plack, “The Crisin in Capital Punishment" 31 MD. L. REV. ;
290, at 295-300 (1971).
{40b}
pub yeoe
|
pyro Vv.
‘Chire {
|
{} «sy
)
|
ijertat
|
htehere likely to be upmeasureble physical pain before con-
feciourness is lost. "Although our information is inconc} usive, i
i,
) capopreran that there is no method available thet guarantees an i.m-
ih liate and painless death." Furmen V- Georgia, Supra, at 267
|
\ . ;
| (Mr. Justice Brennan Comme rring).
{| And there is, finally the cnormity anc irreversibility of
i!
ene act of condemning and iexminating a’ ivmen existence -- an act
|! :
"owich denies ab: olutely the: very thing which the Fighth Amendment
The
I
wast ercauted to protect: the dignity of man.
: | Vhe
Cor
a
‘d to
Justice Wal
Dulles,
O ©
wdemmed prisoner,
the “fate of ever-incressing fear
356 U. S.
yen). The stress of awaiting
even more than the
o
>
expatriate, i:
and distress.
Bb, 102 (1958) (plurality opinion of
execution fre-
co
9,
y produces inncanity, sce £0) esbec V. Ballon, 339 U. Se
(Justice Frankfurter, da ssenting), Ox other extreme mani-
i of ps: ychological co pensation.
Morcov:
The moO
-etancain
‘ in
i ent
©
' °
Ont’ sS
the
yr, emistang Gata sugges
rat] w}
Gevelopinent
g of the causes
inerc
f death calls upon this
measure: "the
| 54/
j} She progress Of a maturing socicty."
i54/ Trop V. Dulles, 356 U. S. 86, 100 (1958)
or Chi Just2 ce Warren).
ts what imagination intuit
and control of crime and which is
asing world-wide disinclination to impose
c*
-e
sich has accompanied advances in
Court now to consider the
of that punishment under the Eighth
evolving standards of decency that mark
(plurality opin ion
14
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REASONS FOR GRANTING THE WRIT
I. HE COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE IMPOSITION AND CARRYING OUT OF THE
SENTENCE OF DEATH POR 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
repetitious matter, petitioner adopts the "Reasons for Granting
‘tthe Writ" sections, respectively, of the Petitioner for Writ of
Certiorari to the Supreme Court of North Carolina, Dillard v.
North Carolina, No 73-6875 (filed June 11, 1974), at 11-51
(attached as Appendix B, infra), and of the Petition for Wr.t of
Certiorari to the Supreme Court of North Carolina, Noell v.
North Carolina, No. 73-6876 (filed June ll, 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.
Il. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE EXCLUSION FOR CAUSE OF TWO VENIRE-
MEN 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.
A. The Test of Exclusion Applied by the Court Below Did
_ the Minimum Standards Required by the Consti-=
tution das Construed in Witherspoon v. Illinois, 391 U.S.
510 (1968).
10/
The record below presents important questions concernin
10/ The transcript of jury selection is not part of the trial
transcript or of the Record on Appeal. The trial court ordered it
transcribed on May 30, 1974, after the Record on Appeal had been
prepared and filed, and it was consecutively paginated from 1] to
74; this transcript will hereinafter be cited as “Jury Sel. T.”.
e 24 «
the constitutionality of excluding persons who oppose capital
punishment from service on trial juries in capital cases tried |
under a purportedly “mandatory” death-sentencing procedure.
During the selection of petitioner's jury, the State was permitted
to challenge for cause two veniremen because of their expression
of conscientious seruples against the death penalty. These ex-
clusions raise literally vital issues under Witherspoon v. I)linoi:
39) U.S. 510 (1968), because that decision established in capital
cases a Clear and unequivocal prohibition against excluding venire-
men for cause on account of their conscientious or religious
scruples against the death penalty except un@er narrow and care-
fully defined circumstances:
“a sentence of death cannot be carried out
if the jury that imposed or recommended it
was chosen by excluding veniremen for cause
simply because they voiced general objections
to the death penalty or expressed conscientious
or religious scruples against its infliction."
| 391 U.S. at 522 (footnote omitted). See also Muxwell v. Bishop,
398 U.S. 262, 266(1970); Boulden v. Holman, 394 U.S. 478, 482
(1969); Mathis v. New Jersey, and companion cases, 403 U.S. 946-
948 (1971); Marion v. Reto, 434 F.2d 29, 32 (CAS 1970). Exclusions
——
for cause were to be countenanced only where veniremen had made
“unmistakably clear (1) that they would automatically vote
| against the imposition of capital punishment without regard
to any evidence that might be developed at the trial of the
case before them, or (2) that their attitude toward the death
penalty would prevent them from making an impartial decision
as to the defendant's guilt.” Witherspoon v. Tllinois, supra,
———— —
| 391 U.S. at 522 n.21 (emphasis in original).
|
| - 15
This Court should determine whether the equivocal state-
ments made by the two excluded veniremen in their voir dire exam-
inations in this case met the constitutional standards of Wither-
lls
Spoon. It should also determine whether scruples against the
imposition of capital punishment in all circumstances can be made
“unmistakably clear,” as required by Witherspoon, supra, 391 U.S.
52? n.21. in the absence of an instruction by the trial court
11/ Venireman Richard J. Godfrey was excluded on the basis of
on
the following examination (Jury Sel. T. 10-14):
"O.[The Solicitor) Mr. Richard J. Godfrey, do you
have any religious or conscientious scruples
against capital punishment?
A.You mean by that, the death penalty?
Q.Yes, sir.
A.Yes, I do.
Q.You do have some?
A.Yes,sir.
THE SOLICITOR: I think we need the Judge
present before Il could proceed any further.
Q.Mr. Godfrey, it is my understanding that you
answer that you are in principle opposed to capital
punishment, is that correct?
A.Yes,sir.
Q.And do you think that your opposition to capital
punishment would prevent you from making an im-
partial decision as to whether a defendant was
guilty of rape?
A.Not for that, no, I don't believe so.
THE COURT: I can't hear you.
A.No, I don't think so.
{Jury Sel. T. 11)
Q. (The Solicitor continuing:) And are you saying
that despite your opposition to capital punishment
you could set aside your personal convictions
against capital punishment and decide the guilt
of the defendant on rape solely upon the evidence
that is presented in this case?
A.Yes, but I would be against the death penalty.
Q.All right. Well, I take it, Mr. Godfrey -- there
are a certain amount of questions the Supreme Court
asks me to ask jurors in going down this, but I
will just cut through them and ask you in this
way: What we are asking of the jurors is, your
principle against capital punishment, the fact
that you doen't particularly think that it is
necessary, do you think that would affect your
decision when you went back in the Jury Room with
\ the other eleven jurors to such an extent that you
=
ee
that it is
eee eee ee
lly cont'd.
the civic duty of each venireman to sit as a juror if
couldn't find a man guilty even though you
believed that the State had presented cevi-
dence to you beyond a reasonable doubt of
his guilt?
(No answer).
What 1 am asking you, in effect, is: Would it affect
your judgment when it came right down to whether he
was guilty or not?
No, it would not.
It would not. So, what you are saying is: even though
you are opposed to it, you don't think it would affect
{Jury Sel. T. 12)
your verdict one way or the other in this particular
case? If you thought the evidence showed beyond a
reasonable doubt that Mr. Lampkins was guilty of
rape on the 13th of November against Rosa Mae Barr,
then you could find him guilty?
Yes. Can I clarify it somewhat?
Yes, sir.
Now, in the Jury Room we don‘t determine whether a
person gcts life or dcathi
That is absolutely correct.
That is entirely up to the Judge; right?
Yes, sir.
No, I don't think I could, really.
What do you mean, you don't think you could?
I don't think I could judge impartially on that
basis.
In other words, you don't think that you could give
an impartial verdict knowing there is some pussibility
Right. «
---he could get capital punishment?
Yes.
THE SOLICITOR: If your Honor please ---
THE COURT: Let's see. Both Mrs. Kennedy [defense
counsel} and you both let's come up and let's see if
we can eliminate this sort of thing.
(The Court conferred with counsel at the Bench.)
[Jury Sel. T, 13)
THE SOLICITOR: I would again challenge this
juror.
THE COURT: Let's ask him definitely what he
would return, if he would not.
THE SOLICITOR: All right, sir.
(The Solicitor continuing:) I am required to ask
one further question of you, Mr. Godfrey, and that
is: I take it that your answer is that you would
automatically find the defendant not guilty of rape
in this case before you without regard to any evidence
that might develop during the trial because of your
@ £9 «
the
basis
*
As the Court
can.
declared
principles against capital puni
No: I think I had rather not be in a position to do
in Bo
fair.
that is not the question,
I aon' t Supposr e
st disqualify
what?
that. That wouldn't be
HE COURT: Well,
whether you had rather.
wants to sit on the jury.
A. Right. Well, could I ju
TH? COURT: Can you
A. Disqualify myself?
THE COURT:
All right, sir.
" TO MR,
No,
A.
Q. You
to capital puni:
THE Ci
say you have
shment.
some opposition,
you can't do that.
GODFREY:
I did not hear what you
said about on what grounds.
{Jury Sel.
think,
someone's
I don‘t
to take
Q. Well, based upon
A. you
life.
or persona] opinion, or
A. Yes.
Q. Religious, or mor al, or
Moral.
no matter
wus, you woul
A.
Q. So,
the
of guilty of rape,
penalty,
Yes. That's
THE
THE
proof
right.
COURT: All ri
SOLICITOR: I
A.
challenge for cause,
THE COURT: All ri
All right, you can
Venireman Lorraine
of the following examinat
"Q. [the
case
one way or the other?
{Jury Sel.
Mrs. Edwards,
punishment. At this ti
Are you opposed to capi
know,
what? Just your beli
what the evidence is
stand
[Venireman Lorraine Edwards }
me,
T. 14)
the State has the
ef
what?
what is it?
and what
dad not return a verdict
which would carry the death
regardless of what the evidence was?
ght.
again make a motion to
Your Honor.
ght, I will excuse him.
aside."
Edwards was excluded
ion (Jury Sel.
Solicitor] Do you know anything about this
that you think would affect your judgment,
7
a -
T. 63)
this case does involve capital
I'd like to ask
tal punishment?
you:
right
T. 62-64):
or are opposed,
about it,
on
—— ee ee
394 U.S. at 483-464; “[iJt is entirely possible that a person who
lly | Od t*d.
A. I1 do not believe in capital punishment.
Q. You do not believe in it?
A. No.
Q Would your opposition to capital punishment affect
your judgment in this particular case?
A. Yes.
Q And your verdict?
A. Yes, it would.
Q. You think it would?
A. Yes, it would.
Q. And are you saying, in effect, that if the State
presented evidence which you thought beyond a
reasonable doubt proved that Mr. Lampkins did
commit this crime, that you think capital punishment
would have a bearing even in the face of that?
A. Yes. Yes, sir.
wHiE SOLICITOR: Your Honor ---
THE COURT: I did not hear all she said. Are
challenging her for cause?
THE SOLICITOR: Yes, sir, I am, Your Honor.
THE COURT: Do you make any point about it?
MRS. KENNIDDY: No, Your Honor.
{Jury Sel. T. 64)
THE COURT: All right, I will excuse you.”
It is immaterial that petitioner raised no contemporaneous
objection to the exclusion of these two veniremen, since "a
sentence of death cannot be carried out if the jury that imposed
or recommended it was chosen by excluding veniremen for cause
simply because they voiced general objections to the death
penalty." Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)
(emphasis added). Jury selection in violation of the Witherspoon
requirement “necessarily undermines ‘the very
This text is long and has been trimmed here. Open the source document for the complete record.
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.