# Petition — Vinson v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2054%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 902 ## Text Pet ’ i ’ Q ‘ r as ) bA a) + {FT eur. weet , \ oF THE CILPK ae PeHAT i Sees ED Ge BON ccc cdcawkéceuivwstnssoccescewdsecsas ] PTET .'sccesbecenesdblcubenetusenseedessteneuebucds tenes ] De PRUNE, sk 6c oud bcdabdeceden cece benches thbddnsseeeces 2 Constitutional and Statutory Provisions Involved............... 2 es Ge See Svs deeb acdeek dda ce sskedesecudsubaseneeeeeaes How The Federal Questions Were Raised and Decided Below........ WeReees Tar Sreetes Ge WUE. -ccccccccccscccccccccscpncsSeeees 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 bus Wee Wiis ccs ended ddkée nets cess cctaetescoaniwkeeekes 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&- 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 ae! Z a a me . = s a : oe at - ~~ -~--* *- ~ .* * - e . rey - --- -- ”- = -- * - -- — --f - oe eR : a e a ee - : s« ose beth aes % 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 - - - - « == -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 _- ~-« -_*+- = - ~ >? —- 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 ~ ’ * 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 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 -~ . 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 —_——- 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 ——— ———— = ~— ** . “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, : , } ; i si 7 / i ‘ ‘ nice ne ‘ ’ ‘ W \ vj vi so / P . ; a, | } »* , Sat - , 2 / ‘ cA ( c ‘ ‘ A d i ‘ « ! : ’ a? ] ‘ Ve J e g i ds @ ‘ . s Qa ,- - , #.% 4 c lt >} : ‘ 4 y , / ' 1¢ . + 4 i ‘ 4 v i ‘ 4 ce | . rf } } Ci 4 ‘ff ()° 4 , ’ fr , ’ *) be ’ Ye . y ' . P ave \ « e i]; .° Vv. ree vv Rr ‘ Ci, | t LCs in on a aan ' . > >> aq iu , ‘) 4 4 cn 4 ce + erLC ‘ } ‘ ; | 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 {oo} ‘ y a 4 een ine ¢ ree h us \ . al, Ho wl Cc? » 4 , é P- ec , « " ,% 181 eS 4 wei “7 mee ) U -« > ° ° . ee ot . r4 . — @ — . | . _- x as o- - ~ ' _ 40 — ee Pa , } ( ‘ ‘ i - "hat 4) Ls t he ? > 4 ,. q) } wr by convicting of naa verdict of not O a lesser A3/ vilty. _ aa 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 »? , ate ' al ~« 7 il 4 TOY , P y di ‘7 , 2 4ak oy ( > { ‘ cle ‘ dal Tar 4 eau ] ; i if ¢ . , 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 ea I h I > but ruising the questic included Thus, un 4 nothiyr 4 ‘ f ‘ 7 , 5] Yor 7 le -* ee —— «eee —— 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 a - EE OS eee - - / ov > ; aad a rt + r ‘fr os m P ‘ ot ya - 1» , 1y ( i, 4 ~~ :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 — « = © , o. . ~ ‘ ‘ , c 4 ; : ¢ . > ‘ + 2 4 , . y “4 r ° ° n . ~ ‘ ‘ > ’ ‘ . a 4 . - . ‘ 1 - A . b > . ° > . > , . ~ + ° . - 7 ° _* - . ~ ,- . ‘ ‘ ‘ 7 ’ - > ‘ } ; - ™ a ’ ‘ we — > . ‘ ‘ - > + : . J o~t . . " : 4 : : = ; , - . : aad . . ¢ ; ( - b- - A e “ —_ - : ° . é rt 4 . ° ’ . - c 7) > ° j . > “ C ws A 4 ‘ - J . ; 4 ) ) . : . >i | 4 ‘ * " ‘ + - <> . ‘ . — 4 4 ; . ; : “i , ’ ‘ 4 . ‘ 4 . - . . . = e a) “ . . 7 ' A ; P ; ‘ ° > , . mn b 4 co , e ¢ ~~ /~ - . . . ‘ ~~ © ee 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 + — ' ) ™ ’ }¢ «ar ‘ ’ * ¢ ‘ ’ her th deat vy 2 Oo wicon with « e. ; .¥ iry «4 y . of mwmcen ya ‘ ar } ‘ ) | i @ .¥ Tt » @ ¢ ‘ r ‘ V the aq ! I v) ‘ } a ae | e ' ‘ , gery? ¢ ) +? ‘ d ii i! a2 sy } a ; ' ‘ . a | 1+ » f P ] J ‘ ‘ 4 . ¥ * 4} 4 »} ’ 7 ‘| ; , i aii ° j } os 4 4 . 4 ) ‘ ‘ i | \ i , i + 4 ‘ 4 ) v i uals i ‘ PT , ,* 5 . ’ ’ ; a 4 , . i ) Gv {}% i Y 4 * . Lal 4 A SF: } , j ) " 4 . ‘ ) 4 1 ‘ I { i 3) ) f P ‘ ‘ “-} 4 r : : 1! ’ r#wvd4 ’ 4.% ¥ ‘ , ‘ . . , } \ ° fa } J li’ . ‘ ‘ i } P C4 4-) ‘ P t } 4 4 ‘ . y ( ( . a 4A } ‘ ; ’ . " ’ : { C) 4 , 1 i ui i‘ ( ‘ . ¢ . ‘ ‘ ; ‘ * ? ¥ f) ) ’ ‘ \4é , ‘> . , , ht sia i . | AA \a4 hia 4 \ ‘ , - ? y | | ‘ , ? +) ; ‘ I (Vv ; ‘ 4 ‘ " uy ‘ +} . . ‘ 4 or oO 1) ‘ 4 ' 1’ 4 aif 2 t ’ cC i P Zi i> il . 5 L, wi ‘ ‘ y ‘ ‘ 4.) ¢ a ) . . L313 ) ee \ , ‘ , ‘ ‘ 4 hy ct ‘ } i( , | i y | , ‘ ; 4+) * , tne bk) tli { wal nor ul 1 Va ¥ ‘ } P >) ) 17 ‘ 22S @ & ) | ui Mn thi »4 oc ° Zi Ve ° al $341 ) “* TE Se a ee eee i eae SO I OS eT . ° ~ 4 a ~ > . + . ‘ ‘ : al . ‘ — 2 é > = . =. 4 » ~ -" ‘ 42 4 de I _ 4 ~ r — ~ ; NN onus ! | i] ’ , }t ) .* 4} #* ‘ . . r ca 4 F [ihe ’ > ‘ 4 )) «Lee f Cc) ° ° P C2 ° 4 P td ° j ° ° . iw i. f oO \1 ‘ 2 a6) (19 ' . 4 > ‘ , ‘ ; l , lee Ga ° 118 (] 2) ; . » * d . } ) V/ in , »? . ,acay ’ cA 4 I » —s , aA - ’ ‘ ) P ) 5 | ‘ 4 ; ‘ ‘ \ , ? ¥ ve . i} L di = , ia «i ( . } " + ¢ ) i Tal V ( 1 ( ; ‘ vi 4 i He op r a. ) } ‘ , ‘ ’ . c P P * - ; 1 f - N.C. GCn. it « | 4 co 4 ) ) 5 | > ° » wl ° 1 Il, i Nee wl » ket . , c »7 eA Se , . , a P i \ ) = ‘ 43 \ ( ‘ | , ] ‘ ( } } ! | ( ? Y¢ ¢ cyt t ‘ | ‘ ‘ 4 . c } L 3} : 2 eC} l he see La. « Dp. . TR EN nem a = ian _ = >, as o> I co 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 integrity of the . « . process'" leading to imposition of the death sentence, id. at 523 n.22@ and this Court has permitted attacks upon numerous death sentences despite the lack of contemporaneous objection to for-cause challenges that violated Witherspoon. See, e.g., Bo a» ulden eee —+ —---- _—— v. Holman, 394 U.S. 478 (1969); Maxwell _v. Bishop, 398 U.S. 262 (1970); Wigglesworth v. Ohio, 403 U.S. 947 (1971); Harris v. Texas, 403 U.S. 947(1971). Significantly, the lower court decisions reversed in the latter two cases had held Witherspoon error waived because of the absence of timely objection. State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); Harris v. State, 457 S.W.2d 903 (Tex. Cr. App. 1970). has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law -- to follow conscientiously the instruc- he imposition of the deat} entence in a particular case." A venireman must be 1im to “subordinate his personal instructed that the law requires yiews to what he... . [perceives] to be his duty to abide by } ; i. . eart 4 e.8 2 veniremen here stated, without more, that their attatuce towara the death penalty might affect their decision as to petitioner's guilt, neither of the was given any instruction on their duty ’ to attempt t serve as a juror or asked whether they could sub- ordinate their initial instincts to the law f North Carolina that . ) o . the triai Cc rt would char 3 the to obé y- | ! B ° , ° y VU a - | e ’ caaont Scruple ' z =_ " a.f 2% ma ; a SiS xt 1 ™ fis ; } ‘ ’ I ‘ ‘ ay Lve } ot it »f tlic i S c! i t to 1 he Yr entat ‘e yurVe p XE =. - onl -_ a eas te SATA tanta d ' In order to avoid subjecting the Court to redundant argument, petitioner adopts the “Reasons for Granting the Writ" section of the Petition for Writ of Certiorari to the Supreme Court of Florida, Hallman v. Florida, No. 74-6168 (filed March ll, 1975) at 72-78 (attached as Appendix D, infra). (Lampkins Case Continue Cert rari to the of Flor lcd, j Lis No. 14-6) ( (fais ‘ ; \ / } the aceuscad of a ‘jury that is "truly representative of the Jury Commicsion 396 U.S. 320, 330 (1970) -- is violative of f petationer's right to equal protection and due process. | | ti ; es ‘;’ ? ‘ of " Vi ry rm \ 4), Con ‘ it ¢ ) : vriy le gains Copitebl Punic) nt bopraived mc: 5% ha ae bb sy iment kaght 1 a hi } ‘ 3 an ’ ‘ ' ; Vhi cuse also presents the significant constitutions) ' ~ . , + . . ; Guestion whether any death gualification of a jury ty Ms permissible jn the wake of the incorporation of the Sixth | Amen ne's yury-trial guarantee into the Fourteenth. The Vital _ rate oon: ) wes h rryrleer?d at wn onlv a fcow aave after ‘ + « - ‘ }) J hy i 9) - 145 (2°68); Wathers, ms +e? De ‘| of course, long pre-dated Ll" ‘an; and the cases in which t]} | Court has since applicd Witherspoon have all been pre-! i if ie t 2. Of death qualifa ts0on was made. See Roulden v. Mol | 34 U.S. 4 (1909); } Lv. Bishop, 398 U.S 262 (1970); i and rhe twenty-three cases reversed on authority of Wit) my 403 U.S. at 946-948 (1971). Prior to the effective date or 1) _. tefano v,. Woods, 392 U.S. 631 (1°66)), the only § federal constitutional rights enjoyed by a state criminal defen = | nt ian connection with the selection of his trial jury were th | vouchsafed by the Dve Process and iiqual Pretection Clauses of Y the kour't nth Amendment. The Court hed then recounized the Oblagation of the States not to exclude racial minority groups | i from the petit jury, see Smith v. Yeyvar, 3)1 U.S. 128 (1940); ; . ! Ra BEST COPY AVAILABLE ~ —— eee ee we = —_— ——— — Hernandes_v. Texas, 347 U.S. 475 (1954), but had not yet imposed upon state criminal trials the more exacting obligations of the Sixth Amendment. Compare Hoyt _v. Florida, 368 U.S. 57 (1961), with Taylo-~ v. Louisiana, 43 U.S.L.W. 4167 (U.S., Jan. 21, ae Since Dunean, however, the Court has recognized that the ! Sixth Amendment quarantee of jury trial entitles a state criminal, defendant to “a petit jury [drawn] froma representative cross section of the conmunity." Taylor v. Lovisiana, supra, 43 U.S.L.W at'4169. In Teyler -- which marks only the latest excmplifica- G6/ tion of this principle -- the Court held that a male criminal 66/ Between the dates of Punean and Taylor, the Court clearly said several times that the selection of petit juroxs from a representative cross secticn of the community was an cscential requirement of the Sixth Amendment. In Carter v. Greene County rirsion, 396 U.S. 320, 330 (1970), the Court suggested ASD y_ Corn that such a requirenent was inposed upon the States by Duncon, stating that the “very icen of a jury" was’ that of a “*body i truly representative of the conmunity’” (quoting Smith v, Texas, » 31] U.S. 128, 130 (194%) and that jury Lists must "*rceasonably reflect a cross-section of the population,'” 396 U.S. at 332 (quoting Brown iv. Allen, 144 U.S. 443, 474 (1953)). See also ‘ Williams v. Plerid:, 399 U.S. 78, 100 (1976); Apodaca vy. Oregon, |; A06 U.S. 404, 410 (1972); and see Peters v. Kitf, 407 U.S. 493, 502-504 (1972) (opinion of Mr. Justice Marshall). ; } defendant had standing to contest the exclusion of women from his trial jury without the necessity of demonstrating any specific prejudice because the exclusion of a distinctive popula- tion qroup “deprived him of the kind of fact finder to which he &7/ was constitutionally entitled.” Id. at 4168. G7/ “We accept the fair cross-section requirement as fundamental to the jury trial guaranteed by the S:xth Amendment and are convinced that the reguiyvement has solid foundation. The purpose of a jury is to guard against exercise of arbitvary power -- to make available the comnon- sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the ‘professional or perhaps over- conditioned or biased response o£ a judge . «-. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, more- over, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups oy excluding identifiable segments playing major roles.in the community cannot be squared with the constitutional concept of jury trial. Trial by jury presupposes a jury drawn from a pool broadly ee ee re oo ee eee . representative of the community as well. as impartial in a specific case ... . The broad representative ! character of the jury should be maintained, partly : as assurance of a diffused impartiality and partly because sharing in the administration of justice is . a phase of civic responsibility." Taylor v. Lovisiana, supra, 43 U.S.L.W. at 4170. As the Court bas progressively clarified the nature of the “jury” guarantced in state criminal proceedings by the Gixth Amendment, the cross section requirement has become |} increasingly essent ial and the permissibility of death qualifica~| | tion has therefore become increasingly suspect. Williams v. Flor , 399 U.S. 78 (1970), held that au jury of twelve was not | an indispensable part of the Sixth Amendment right: al} the | Sixth Amendment reguired was that the jury be large enough "to | | provide a fair possibility for obtaining a representative i! : l} ore ~section of the community .. . " Id. at 100. This was so | . i because the critical function of the jury was to provide a r | citizen group, representative of the community, which would serve to check possible Government oppression of criminal | @efendants. "[T)he essential feature of a jury obviously lies F i! i . ; : ) ain the interpesition between the accused and his accuser of ; , | the c nm sense judgment of a group of laymen, and in the I : ; ; as th a ‘ i ce ty participation and shared responsibility that resuls i : , . ° ° fron that group's determination of guilt or innocence." Ibid. | } i , i «a i} In Apodaca_v. Oregon, 406 U.S. 404, 410 (1972), the Court i similarly ruled that the Sixth Amendment did not require convic- ' . V tion by unanimous verdict in State criminal cases, since the | Y jury's function could be served without unanimity “as long as |} ait consists of a group of laymen representative of a cross ' ' | ° : ‘ | section of the commufiity.’ ; Tle principle that no identifiable group may be system- atically excluded from jury} yaanels is not limited to groups J 3) i defined by race, of course. See Taylor v. Louisiana, Supra; | White v. Crook, 251 F. Supp. 401, 408-409 (M.D. Ala. 1966) (exclusion of women}; Labat_v. Bennett, 365 F.2d 698 (CAS 1966), cert. denied, 386 U.S. 991 (1967) (exclusion of wage earners); State v. Schowdrew, 240 Md. 121, 213 A.2d 475 (1965) (exclusion | | : | “whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written | or as applied, single out that class for different treatment not based on some reasonable classifica- tion, the guarantees of the Constitution have been violated.” Hernandor v. Texas, 347 U.S. 475, 478 (1954). As the Court | yeiterated in Apodaca_v. Oregon, supra, 406 U.S. at 413, the | Sixth Amendment forbids “systematic exclusion of identifiable ” | segments of the community from jury panels," because all groups G Q ) i 9] Q uv | have “the right to participate in the overall legal pro | by which criminal guilt and innocence are determined.” And the | ij Court plainly recognized in Witherspoon that jurors with scruple t Ls | against th nposition of the death penalty form a distinctive, | - , . coherent and sizeable group in most cemmunities from which juries GR/ Sec alco, e.G-, Bronson, On the Conviction Proneness and Represent.tiveness of the Neath-Oualified Jury: An Empirical _ a — ee —_— Study of Colorado Veniremen, 42 U. COL. L. REV. 1 (1970); 4 ’ Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 --95 soe ~e- -_ Since a venireman was excluded from petitioner's post- | Duncan trial jury on the sole ground of her conscientious scruple: | against the death penalty, the issue is presented here whether jj} such an exclusion.may be justified under the exacting standards | of the Sixth Amendment. Admittedly, a defendant cannot object ! i | under the Sixth Amendment to the exclusion for cause of venire- | | | . . *. | men who are related to him or who have a monctary interest in ; | the outcome of his suit, because of the danger that such venire- : | ° ° men, if selected as jurors, would bring to the jury's delibcra- tions attitudes that are inconsistent with their proper duty as |! jurors to determine the truth impartially. Under a statutory scheme like Florida's,however, it is the rightful duty of the jury to express community attitudes about punishment: “one of | the most immortant functions any jury can perform {in the administration of such a stutute)-. .. . is to maintain a link betwcen contemporary community values and the penal system i i y y ! == a link without which the determination of punishment could | | } hardly reflect ‘the wolving standards of decency that mark the ee ee ee ~ supra, progress of a maturing socicty.'” Witherspoon v. Illinois, | : | at 520 n.15 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). | Indecd, the Florida capital punishment statute implicitly con- | templates the expression of a broad range of community sentiment | sentence by a “majority of the jury,” Fla. Stat. §921.141(3), and | ! : regurding punishment, since it provides for a recommendation of | i . ' | allows the trial judge to overrule this “recommendation,” ibid. | ' It would thus have been impossible for Venireman Miller to have "hung" the jury on the issue of sentence (assuming even that she o 99 « [6d] ~14d- c in by the fave »T ve a majorit ~*~) CK - of P cn ther + rT y tence vv y O { the dire { th ce. sct O a nt T cant ws Y xii! e jury The death s record, entence -- an see pp. 61-67, to recommend al Vv ry re jury pan nt ev & rt be eaardina not for east 16 ‘dad the trial rt should ~ stalled the cases. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2054%3A1. Public record. Not legal advice.