Petition — Woodson v. North Carolina

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RECEIVED

SEP 24 1975

CHHICE OF THE CLIK

IN THE WT CUT, Ca.

SUPREME COURT OF THE UNITED STATES

October Term, 1975 |

No. 75- SQ]

JAMES TYRONE WOODSON and LUBY WAXTON,

Petitioners,

<y.<

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH CAROLINA

EDWARD H. MCCORMICK

Post Office Box 38

Lillington, North Carolina 27546

W. A. JOHNSON

Post Office Box 146

Lillington, North Carolina 27546

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS %

DAVID E. KENDALL

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ADAM STEIN

CHARLES L. BECTON

Chambers, Stein, Ferguson & Becton

157 East Rosemary Street

Chapel Hill, North Carolina 27514

ATTORNEYS FOR PETITIONERS

Citation to Opinion Below .....++esees Cece eer eseeeeeens

Jurisdiction *eeeeeeneeneeneenreeneeenereeeeeee @ *enrnewneeenee ene eee © @

Question Presented .....5.6.. eececce PTT TTTITTITTT tit

Constitutional and Statutory Provisions Involved ......

Statement Of the CASE wosessseesesteeeeeeeesesessessses

How the Federal Question was Raised and Decided Below..

Reasons for Granting the Writ ....... TETTTTRELTILITL TTL

This Court Should Grant Certiorari To

Consider Whether the Imposition and

Carrying Out of the Sentence -« Death

for the Crime of Murder Under the Law

of North Carolina Violates the Eighth

or Fourteenth Amendment to the Consti-

tution of the United States ....ceececcccssesecees

Conclusion *enreremeeeeneeeneeneeneeneeeneeeneeeneee “ene eo eoeweeeneneeeeneeee

Appendix A, State v. Woodson & Waxton, _N.C._, 215

S.E.2d 607 CIDTS) ccocccccccccececesececeseeseeeeses

Appendix B, Pp. 26-140, Brief for Petitioner, Fowler

v. North Carolina, No. 73-7031 ..ccseceees TeTTELT

Appendix C, North Carolina Defendarts Presently Under

Sentence Of Death....c.esee srees Terr rer errr eee

TABLE OF CASES

Armstrong v. North Carolina, No. 75-5076 (July 11,1975).

Crowder v. North Carolina, No. 73-6878 (June ll, 1974)..

Dillard v. North Carolina, No. 73-6875 (June ll, 1974)..

Fowler v. North Carolina, No. 73-7031 (certiorari

granted October 29, 1974)......+eeeeee ececcccccces

Gordon v. North Carolina, No. 74-6733 (June 26, 1975)...

Henderson v. North Carolina, No. 7'-©853 (June 8, 1974).

Honeycutt v. North Carolina, ‘oo. 7% 7u>? (July 9, 1974).

Jarrette v. North Carolina, No. °* !*7 (June ll, 1974).

Lampkins v. North Carolina, No. 74-6673 (June 9, 1975).

Lowery v. North Carolina, No. 75-5032 (July 7, 1975)....

McLaughlin v. North Carolina, No. 75-5077 (July 1l,

Dh s6nonbOe6064000666006066600000600enee6o teCeC

Noell v. North Carolona, No. 73-6876 (June ll, 1974)....

Robbins v. North Carolina, No. 75-5426 (September 12,

PTD 606 6600666606606600600 00 66006 O06 Cb06O CSCC C CeCe

Simmons v. North Carolina, No. 75-5262 (August 12,1975).

Sparks v. North Carolina, No. 74-669 (November 29,1974).

tate v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974)......

ms Vv. Albert Carey, 285 N.C. 509, 206 S.E.2d 222(1974).

State v. Anthony Carey, 285 N.C. 497, 206 S.E.2d 213

Dit hthnn ghee benab hes haokeennsebeeeennnesnseeees

v. Johnnie Lee Carroll, Harnett Cty. Super. Ct.

Nos. 74-CR-4994, 4995 (Dec. 9, 6056666686066

tate v. Antonio Dorsey, Mecklenburg Cty. Super. Ct.

No. 73-CR-47181 (Sept. ll, Deven 6 eceeeecebeeeeeeee

_— v. Harold N. Givens, Mecklenburg Cty. Super. Ct.

No. 73-CR-46182 (Aug. 31, Beer coeeceesoeesscohovse

state v. James C. Mitchell, Mecklenburg Cty. Super. Ct.

No. 73-CR-61589 (Dec, 17, BECSD Cocccceoceececesooss

state v. Leonard Maurice Tucker, Harnett Cty. Super. Ct.

Nos. 74-CR-5050,5051 (Dec. 9, | es eee

State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).....

Stegmann v. North Carolina, No. 74-6735 (June 26, 1975)..

Vick v. North Carolina, No. 75-5075 (July 11, 1975)......

Vinson v. North Carolina, No. 75-5384 (Sept. 3, 1975)....

Ward v. North Carolina, No. 74-6263 (March 28,1975)......

Woods v. North Carolina, No. 75-5091 (July 14, 1975).....

Young v. North Carolina, No. 75-5281 (Aug. 15, 1975).....

IN THE

SUPREME COURT OF TIL ‘'NITED STATES

October Term, 1975

No. 75-

JAMES TYRONE WOODSON and LUBY WAXTON,

Petitioness,

—%.°

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH CAROLINA

Petitioners pray that a writ of certiorari issue to review

‘the judgment of the Supreme Court of the State of North Carolina

entered on June 26, 1975.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of North Carolina is

reported at _N.C.__, 215 S.E.2d 607 (1975), and is set out in

Appendix A hereto, pp. la-15a,invr

JURISDICTIO!.

The judgment of the Supreme Court of North Carolina was

entered on June 26, 1975, and is out in Appendix A hereto.

Jurisdiction of this Court is ianvoh.ed under 28 U.S.C. §1257(3),

petitioners having asserted hbel< asserting here deprivation

of rights secured by the Const:t «{ the United States,

QUESTION

Whether the imposition ‘ out of the sentence

of death for the crime of m ' 'se law of North Carolina

BEST COPY AVAILABLE |

violates the Eighth or Fourteenth Amendment to the Constitution

of the United States?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Eighth and Fourteenth Amendments

to the Constitution of the United States.

2. This case also involves the following provisions of

the General Statutes of North Carolina:

N. C. Sess. Laws 1973 (2nd sess., 1974), c. 1201,

61, amending N.C. Gen. Stat. §14-17 (1974 cum. supp.):

“Murder in the first and second degree defined;

punishment.--A murder which shall be perpetrated

by means of poison, lying in wait, imprisonment,

starving, torture, or by any other kind of willful,

deliberate and premeditated killing, or which shall

be committed in the perpetration or attempt to per-

petrate any arson, rape, robbery, kidnapping, burglary

or other felony, shall be deemed to be murder in the

first degree and shall be punished with death. All

other kinds of murder ghall be deemed murder in the

second degree, and shall be punished by imprisonment

for a term of not less than two years nor more than

life imprisonment in the State's prison.”

“Pelonious assault with deadly weapon with intent

to kill or inflicting serious injury; punishments.--

: (a) Any person who assaults another person with a

deadly weapon with intent to kill and inflicts

serious injury is guilty of a felony punishable

by a fine, imprisonment for not more than 20 years,

or both such fine and imprisonment.

(b) Any person who assaults another person with a

deadly weapon and inflicts serious injury is guilty

of a felony punishable by a fine, imprisonment for

not more than 10 years, or both such fine and im-

prisonment. ,

deadly weapon with intent to kill is guilty of a felony

punishable by a fine, imprisonment for not more than

10 years, or both such fine and imprisonment.”

§14-87 (repl. vol. 1969):

“Robbery with firearms or other lingerous weapons.~--

Any person or persons who, having in possession

or with the use or threatened use of any firearms

or other dangerous weapon, implement or means,

whereby the life of a person is endangered or

threatened, unlawfully takes wv. attempts to take

personal property from another or from any place

of business, residence or bursiny institution.or

any other place where there is a person or persons

in attendance, at any time, either day or night, or

who aids or abets any such person or persons in the

commission of such crime, shall be guilty of a

felony and upon conviction thereof shall be punished

by imprisonment for not less than five mr more than

thirty years."

§15-176.3 (repl. vol. 1975):

"Informing and questioning potential jurors on

consequences of guilty verdict. --When a jury is

being selected for a case in which the defendant

is indicted for a crime for which the penalty is a

sentence of death, the court, the defense, or the

State may inform any person called to serve as a

potential juror that the death penalty will be

imposed upon the return of a verdict of guilty

of that crime and may inquire of any person

called to serve as a potentic) juror whether

that person understands the consequences of

a verdict of guilty of that crime."

§15-176.4 (repl. vol. 1975):

“Instruction to jury on ‘on ees of guilty

verdict.--When a defenu . s. tinmtscted for a crime

for which the penalt. is a sentence of death, the

court, upon request by e:it!e: party, shall instruct

the jury that the death »enst*. will be imposed

upon the return of a verdict of juilty of that crime.”

§15-176.5 (repl. vol. 1975):

“Argument to jury on cons: ae ices Of guilty

verdict.--When a case wi)! .¢ ratted to a jury

on a charge for which: thi per lt: Ss a sentence

ent to the jury

of death, either party i: ‘t

: verdict of guilty

may indicate the conse

of that charge."

BEST COPY AVAILABLE |

§15-187 (repl. vol. 1975):

"Death by administration of lethal gas.--Death by

electrocution under sentence of law is hereby >

abolished and death by the administration of

lethal gas substituted therefor.”

§15-188 (repl. vel. 1975):

"Manner and place of execution.--The mode of executing

a death sentence must in every case be by causing the

convict or felon to inhale lethal gas 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 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 peniten-

tiary shall also cause to be provided, in conformity

with this article and approved by the Governor and

Council of State, the necessary appliances for the

infliction of the punishment of death in accordance

with the 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

26, "1975, affirming petitioners' convictions and death sentences

for first Goprep, pacer. Petitionem James Tyrone Woodson and

petitioner Luby Waxton, indigent black men, were convicted and

sentenced to death on December 9, 1974, after a joint trial in

the Harnett County Superior Court, for the murder of Mrs. Shirley

Whittington Butler, a white woman.

At this trial, petitioners were convicted of the armed robbery

of Mrs. Butler, but these judgments were arrested, since the armed»

robbery was the predicate felony of the felony murder counts.

155-156. Petitioner Waxton was also convicted of the crime of

assault with a deadly weapon with intent to kill for an assault

upon Mr. R. N. Stancil, during the robbery, and he was sentenced

to a term of twenty years imprisonment for this crime. R. 154.

—

murder and armed robbery with petitioners, but pleaded guilty to

The State's case against petitioners consisted primarily of the lesser offenses, R. 31, on December 2, 1974 (prior to petitioners’

testimony of two co-defendants, Leonard Maurice Tucker and Johnnie trial), and were sentenced to terms of impris —s

Lee Carroll. Although the State introduced the testimony of twelve fucker's and Carroll's sccounts were essentially similar.

other witnesses and various exhibits, no fingerprint, ballistics, Tucker testified that he and petitioner Woodson were together

or other physical evidence directly linked petitioners to the = between 11:00 a.m. and 5:00 p.m. on June 3, drinking wine. R. 39.

and the a other eye witness, R.N.Stancil, could not place them Woodson declared that “he did not want any part of the robbery,”

. . 5 -

on the scene. Tucker and Carroll were indicted for first degree R. 44, that they had been discussing with Carroll and petitioner

Waxton for the past few days. Waxton came to Tucker's trailer

about 9:30 p.m. and asked where Woodson was. Tucker said Woodson

s “uptown,” R. 39, and Waxton told Tucker to come with him. As —

2/ Three of these witnesses were policemen who went to the Butler tea ° |

store after the robbery, R. 36-38; one was a pathologist who

testified that Mrs. Butler had been killed by a gunshot wound

in the head and that the bullet was too fragmented for ballistics

testing, R. 44-45; one was a fingerprint expert who testified

that Tucker's fingerprints were on a package of Kool cigarettes

found in the Butler store after the robbery, R. 5l; one, R.N. |

ne Sen Ce See Sees See eee eee ee "if he didn't come -- if he didn't kill him I [Tucker] would.”

the robbery; two testified as to the chain of custody of evidence,

R. 52-53, 53; two testified concerning the loan of a car to , , : :

Carroll by his brother-in-law, R. 53; one was a police officer PREG Ceeteen*e aye was Biseting ane Guetias ans be Regt Ste hese

who testified concerning his investigation of the crime, R. 53-56;

and one was a firearms expert who testified about the inconclusive

ballistics tests he hd performed. R. 56.

the two walked toward Waxton's trailer, they saw Woodson approach-

ing. Waxton hitshim in the face and told him that he was going to

go along with them. According to Tucker, Waxton told Woodson that

over it as he accompanied the two men.

3/ Stancil testified that he lived across the street from the

E-Z Shop, which was operated by Mrs. Butler, R. 52. He entered .

the shop about 10:15 p.m., June 3, 1974, to buy a Coke and noticed

that Mrs. Butler “was not in her place.” Ibid. "I met someone

coming out who seemed to be in a hurry and went on by me. I saw

something on the floor and I was going to pick it up when I heard

an explosion. The person I had just met said something like

"look out' ... . After the explosion I felt pain in my back

4A. Tucker was sentenced to ten years imprisonment on his plea of

guilty to a charge of Accessory After the Fact to Murder, State v.

Leonard Maurice Tucker, Harnett County Super. Ct. No. 74-CR-5050

|| (December 9, 1974), and to not less than twenty nor more than

thirty years imprisonment on his plea of guilty to a charge of

Armed Robbery, State v. Leonard Maurice Tucker, Harnett County

Super. Ct. No. 74-CR-5051 (December 9, 1974), the sentences to

; es : run concurrently. Carroll was sentenced to ten years imprisonment

th > one vy popes tectagg 7 ps -~ : h 7 § “? ao on his plea of guilty to a charge of Accessory After the Fact to

. nye 0 =< 7S ow aes oe Armed Robbery, State v. Johnnie Lee Carroll, Harnett County Super.

a a Se | Ct. No. 74-CR-4994 (December 9, 1974), and to ten years imprison-

ment on his plea of guilty to a charge of Accessory After the Fact

to Murder, State v. Johnnie Lee Carroll, Harnett County Super. Ct.

llNo. 74-CR-4995 (December 9, 1974), the sentences to run consecutive

}

5/ Tucker testified that “[a]bout a week before the 3rd of June

Luby [Waxton] told Tyrone [Woodson] and me he wanted to rob some-

thing. That is the only time I heard Luby make statements concern-

ing robbing the place.” R. 4l.

~~ 7

The three proceeded to Waxton's trailer where they met

Carroll, who had borrowed his brother-in-law's car for the

evening. Woodson told Carroll that Waxton hit him because he

was drunk, and Carroll got him a towel to put over his eye.

R. 39. Inside the trailer, Waxton took a nickle-plated derringer

from a sails ua put it in his pocket, and Tucker took a .22

caliber automatic rifle from the couch and handed it to Woodson,

at Waxton's request. R. 39. “Luby was giving all the orders."

R. 43. According to Carroll, “[w]hen Woodson took the gun from

Tucker, he said he was going to show him that he wasn't drunk.”

R. 47.

The four men got into Carroll's nesthen~tn-Ban"e Car;

Carroll drove, and Woodson sat beside him on the front seat, and

Waxton and Tucker sat in the back seat. Waxton declared that

they were going to rob the E-Z Shop, but when they arrived, they

found customers there and drove on past the store. R. 39. They

stopped the car briefly and, at Waxton's direction, Woodson test- |

fired the rifle by shooting it into the ground twice. R. 43, 45.

6/ Carroll testified that "I could tell that Woodson had been

Grinking.” R. 50.

7/ Although Carroll had previously seen Waxton with a “silver

Derringer", he did not see any pistol in Waxton's possession on

the night of the crime. R. 46.

They then returned and parked near the store. “Up until

the last minute Waxton had instructed Woodson to go in but [he]

changed his mind,” R. 44, and so Tucker accompanied Waxton into

the store, while Carroll and Woodson remained in the car, with

the rifle on the floor of the front ee told Woodson

not to let anybody in the store," and*Woodson said nothing in

response. R. 43. Inside the store, Tucker asked Mrs. Butler for

a package of Kool cigarettes, and she gave them to him and he

paid her. R. 40. He moved down the counter and Waxton also

asked for a package of Kools:"the woman handed them to him and

Luby then reached into his back pocket, pulled out the Derringer,

stuck it around or about the left side of her neck and fired one |

shot." Ibid. Waxton then leapt over the counter and lifted the

money tray from the cash register. As Tucker ran out the door,

he passed R.N. Stancil, who was entering the store to buy a Coke,

10/

R. 52. Tucker ‘told him to look out and [I] kept walking toward

8/ According to Tucker, “the rifle was on the floor of the

front seat and not in Woodson's hands." R. 43. Carroll, however,

testified that Woodson sat with the rifle “in his hand." R. 45.

9 According to Carroll, however, Tucker emerged from the

store carrying the money tray. R. 45.

10/ Carroll testified that "Woodson saw Stancil first. He did

not stop him. Woodson got out of the car with the rifle and I

pulled him back into the car and told him to put the rifle down.”

R. 48.

the car. Then I heard a second shot from inside the store. I

At the close of the State's evidence, a hearing was held in

got in the car and about a couple minutes after the second shot ll/ :;

; the absence of the jury at which petitioner Waxton tendered a

Luby came out of the store walking fast with some paper money , ‘

Y guilty plea to charges of armed robbery and accessory after the

in his hand." R. 40. The men drove to Waxton*s mother's house

; fact to murder. Petitioner Waxton's counsel stated:

(where Carroll, Waxton's half-brother, lived), and on the way.

Waxton said that "he shot the man in the back” in the store. Ibid.

ll/Just before this in camera hearing was held, the following ex-

At the howe, Tucker and Waxton counted the money in the change occurred after the tral court had denied petitioner Woodson's

motion for a mistrial (a motion based on certain discrepancies

bathroom: "[t]here was about $280 and Luby kept it." Ibid. between Tucker's trial testimony and the oummary whic. had pre-

viously been furnished defense counsel):

c ll put the rifle and the money tray in the pantry, R. 45,

~~ ¥ od "MR. TWISDALE [Solicitor]: . . . Your Honor, I

and, a few hours later, buried the money tray under the house at would like to state for the record that Mr. McCormick

and I have had several pleading negotiations sessions.

Waxton's direction, R. 46. On June 4, Waxton and Woodson flew I met him at least twice in his office and at least

one time up here and I have just as much idea of his

to Newark, where they were subsequently apprehended by North client entering pleas Monday morning as I did Max

McLeod [Tucker's attorney] or Sammy Stephenson [Carroll‘s

Carolina police officers. attorney] and I say pleas of guilty.

On cross examination, Tucker admitted that he had pleaded MR. MCCORMICK [Counsel for Petitioner Woodson]: I'm*

sorry I didn't catch that. Are you saying that we

guilty to lesser charges “in an attempt to save myself." R. 42. indicated that we were going to plead guilty?

MR. TWISDALE: Yes, sir.

MR. MCCORMICK: I'd like to say that I have never

“I was told that I would have to testify against Luby Waxton and

I agreed to do that in return for the State Attorney ‘to accept stated that to Mr. Twisdale, I have told him that

I would make certain recommendations to my client:

a lesser plea." Ibid. Tucker stated that he “was afraid of and I have consistently told him that Woodson says

he was not guilty. .

Waxton,”" R. 43, but added that "Waxton didn't threaten any

MR. TWISDALE: I am saying, your Honor, as a result

of us," R. 44, to force them to participate in the robbery. of our discussion I was under as much impression

that pleas of guilty being entered in his case as

Likewise, Carroll testified that "(i]t is true that I have made is Sammy Stephenson or Max McLeod until this morning. sic’

a trade to save my own life... . 4 agreed to come up here and MR. MCCORMICK: I did not offer you one did I?

MR. TWISDALE: No, sir, but I said I had the sane

impression.

testify in order to save my own neck." R. 47. He added that Woodsan

“and Tucker went willingly and did whatever they did willingly,”

COURT: Motions for mistrial are denied and again I'm |. |

ibid., and that he himself “participated in the crimes on my own; going to let the record stand for itself on the

happenings up until now."

Luby did not make me." R. 48.

. ’ R. 70-71.

@ 16 «

“He [Waxton] . . . stated to me that he desired

to plead guilty to the same thing Mr. Tucker had

pled guilty to and stated that he had -- that he

was not any more guilty of anything than was the

defendant, Mr. Tucker, and that he did not feel

that it was fair or right for Tucker to be given

an opportunity to pleed guilty without his having

been afforded the same opportunity. .« - {I]t does

appear to me that there would be a basic injustice

and inequality in the light of the evidence which

has been heretofore presented, and accepting for

the moment without admitting that testimony of the

defendant Tucker is true in all respects, in the

light of [the fact) that it does appear to me that

the defendant Waxton could not legally be guilty

of any offense greater than any offense for which

the defendant Tucker is allegedly guilty, and there-

fore, to accept such pleas as have been accepted

from the defendant Tucker . . . [and not to afford)

the defendant Waxton the same opportunity and . .« -»

the same type of pleas... produces an inequality

and unjust results which I believe our law does not

contemplate. I would have to say in all honesty and

candor, in the light of the evidence that we have

heard up to this point, it would seem to me to be

most unjust and inequitable to the defendant Waxton

to be subjected to a punishment greater than that

to which the defendant Tucker might be subjected

under his pleas, if the defendant Waxton, wanted

to tender the same kind of guilty pleas which the

defendant Tucker tendered, and Mr. Waxton tells me

that he does want to tender such a plea."

R. 83, 84-85. Petitioner Waxton was then examined by the trial

court concerning his comprehension of the tender and his desire

to enter such pleas. The Solicitor, however, declared simply, |

“I cannot accept the pleas," R. 87, and the trial continued. |

Petitioner Waxton testified in his defense, and he gave an |

account of the robbery that was similar to that given by Tucker |

and Carroll. He said, however, that he had punched Woodson in

the eye because Woodson owed him $3.00 and had declared "I don't |

have anything,” when Waxton asked him for the money. R. 88-89.

He also testified that he had never owned a derringer, that Tucker

e il -

——

carried a pistol in his pocket on the night of the robbery, and

12/

that Tucker shot both Mrs. Butler and Mr. Stancil. R. 89, 90.

“Planning of the robbery began in the

trailer park. All of us were giving suggestions

of what to do. Tyrone gave suggestions. On June

3 we all of a sudden just came together to rob

the store. We all had been talking about it.

I am referring to James Tyrone Woodson, Johnnie

Lee Carroll, Leonard Maurice Tucker and myself.

We had talked earlier about robbing another E-Z

Shop on Cumberland Street but then decided not

to rob it after someone made the remark there

were too many customers coming in and out of that

one." 13/

R. 94-95. On the evening of June 3, 1974, “(w)hen Tucker got to

my trailer, he said, ‘Are you reddy to go?' and I said, ‘Yes,

I'm ready.' We all four agreed we were ready." R. 89, Petitioner

Waxton denied forcing anyone to participate in the robbery, and

he declared that the four of them split the proceeds of the

robbery equally. R. 93.

Petitioner Woodson also took the stand and gave his account

of the robbery. He “became addicted to hard drugs", R. 99, in

Newark, New Jersey, and had gone to North Carolina with Waxton

to break his drug habit.

12/ On direct examination, he testified that it was Woodson's

idea to test-fire the rifle before the robbery. R. 89. On cross

examination, he stated that “Tucker suggested that Woodson test~

fire the rifle." R. 92. |

13/ According to Waxton, “{aJll four of us talked about it [a

robbery] and planned it in advance because Johnnie Lee [Carroll]

and Tyrone [Woodson] were unemployed. They said they were going

to pull a job. I said, ‘Why not?'” R. 91.

e 12 -«

“Waxton had mentioned the robbery to me on

the morning before the robbery. I never agreed

to go along. When he brought the subject up

I would not say anything. Most of that day

(June 3) Tucker and I saayed together. We made

two trips to the store to buy wine. We drank.

We diecussed the proposed robbery by Luby.

Tucker said Waxton had mentioned it to him too.

I told Tucker I wasn't going to be in no robbery

and he said the same thing.”

R. 99. Later that evening, Waxton came to Woodson's trailer:

“He said, ‘Look at you, you are drunk.' Well he

cursed, he said, 'M...F...», look at you,

you are drunk,' and I said, ‘So what,' and he said,

‘So what, you are drunk.’ Just like that. And I

said, ‘So what, I am not going nowhere,' and

that is when he hit me. I grabbed my eye and

I fell up against the trailer and then I went

down. I never hit him. He did not hit me again.

He said, ‘If I don't kill you M. ..F... ,

Tucker will.' ‘Come on and let's go.'"

R. 100. He took the rifle from Tucker and entered the car: "No

one forced me in the car. I didn't want to go but, just put it

this way, I was scared after being punched in the face and

14/

threatened in a kind of way." Ibid. Woodson did not recall

any test-firing of the rifle. Ibid. While sitting in the car with

Carroll outside the store, he heard one shot, and Tucker came

running out. R. 101. He saw Mr. Stancil enter the store but made

no effort to stop him; he then heard another shot and Waxton

rushed out with paper money in his hand. Ibid. After they returned

to Waxton's mother's house, there was no division of the money,

and he saw Waxton give his mother “something that was sparkling,"

14/ He later testified on cross examination: "I got in the car

of my own free will, I knew there was going to be a robbery, and

I knew we were going to the place ... . No one was keeping me

in the car." R. 105.

oS «

13 |

ibid. (Woodson testified that, he had “previously” seen Waxton

with a ".22 Derringer, nickelplated, pearl handle", ibid.).

“We turned on the T.V. and I just turned

around and started to mention about him

shooting the woman but the woman was the

last word I got out of my mouth before he

had turned around and hit me in the other

eye, and blood started coming out of my nose

so I just got up and staggered to the bath-

room and washed my face, you know, and went

and laid across the bed; and after he hit me

he told me never in my life to mention that

woman's name again, ever. Said he did not want

to hear no more about what happened.”

R. 101-102. Petitioner Woodson introduced a signed confession

he had given to the police on June 16, 1974. R. 108-114.

The trial court instructed the jury that it could find peti-

tioners guilty or not guilty of first degree murder and armed robhe:

R. 120-121, and that it could find petitioner Waxton guilty or not

guilty of assault with a deadly weapon with intent to kill, R.

125 or guilty of the lesser-included-offense of assault with a

deadly weapon with intent to inflict serious injury. Because the

State had proceeded on the theory that petitioner Woodson was an

15/

aider and abettor in the robbery, the trial court instructed

15/ “The State proceeds on the theory in this case that the de- —

fendant Waxton committed murder or killed Mrs. Butler while in the

perpetration of a robbery of the place of business where she workec

and that he is thereby guilty of murder in the first degree, and

it contends that the defendant Woodson was an aider and abettor in

the robbery being committed and that murder having been committed

in the perpetration of a robbery and he being an aider and abettor,

then he is guilty of murder in the first degree equally with the

defendant Waxton." R. 120-121.

e 4

the jury that “you cannot find Tyrune Woodson guilty of an offense

unless you have also found Luby Waxton guilty of that offense,

the same offense.” R. 145. The trial court also instructed that

the jury might find petitioner Woodson not guilty of any offense

if it found that he had committed criminal acts under coercion

16/

and duress.

The jury found both petitioners guilty of first degree murder

and armed robbery, and it found petitioner Waxton guilty of oie

with a deadly weapon with intent to kill. On June 26, 1975, the

Supreme Court of North Carolina affirmed petitioners’ convictions

17/

and sentences.

16/ “So, recognizing that the State must prove beyond a reasonable

doubt that the conduct of Woodson was willfully, that is of his

own free will, he did acts which constituted violations of the law

with which he is charged, if you believe that he was under a well-'

founded fear of death or serious bodily harm, immediate eminent

[sic] and impending at the hands of Luby Waxton such as to cause

him to go when he would not have gone to render assistance or be

ready to render assistance when he would not have otherwise done

so in the commission of an armed robbery, then under those circum-

stances Woodson would not be guilt, of the armed robbery because

he would not have acted of his ow. fre: will and willfully; but

mere persuasion by another person or > Ick of strong will or fear

of slight or remote injury is not enou’. to excuse a criminal

act... . The defendant Woodson contends that he was coerced by

reason of all the background and circ ’~s ances of his knowledge

of Waxton, his authority over him and his power, the assault on

him this day and knowledge of other éss.ults that he had committed,

that he reasonably apprehended eminent |sic] danger of death or

great bodily harm at Waxton's hands if he did not go along and take

whatever part he took, and under those circumstances he contends

he was coerced and was not guilt: of cit!er robbery or any killins

which might have resulted fro. the ro!lecry. The defendant Woodson

contends that at most he was mere)y present. As I read to you

earlier in the law, members of t!'c ju: ", mere presence at the scene

of a crime does not constitute iin: ina .betting, and a person ra

be present even though a criminil vct is Lauking place and do nothin.

to prevent it without being guilty ot tne «ffense charged, but if

his presence under all the circunstarcts is a communication to the

other person of his readiness ind wil!:. evs to assist if needed,

under those circumstances he ma, !«e« .1 :icer and abettor."R.139-14

17/ On July 10, 1975, Chief sustree

petitioners’ death sentences in or

certiorari to be filed in thi Cou

eee BEST COPY AVAILABLE |

ilow a petition for

ie Sharp stayed execution ce:

HOW THE FEDERAL QUESTION WAS RAISED

AND DECIDED BELOW

Before trial, both petitioners moved to quash and dismiss

their indictments for murder “on the grounds that punishment for

the same . . . has been invalidated by the ruling FURMAN v GEORGIA,

408 US 238... [and] [t]hat GS 14-17 as presently written one §

the Eighth and Fourteenth Amendments to the Constitution of the

United States in that it grants discretion to the jury with respect

to imposition of the death penalty." R. 19; see also R. 20, R. 25.)

The motions were denied, R. 20, R. 25. These contentions were

renewed in a motion to arrest judgment after verdict, R. 151-153,

which was also denied, R. 152. Petitioner Woodson assigned these

rulings as error (Assignment of Error Nos. l, 2, 5, 7, 19 (R. 161-'

164)), as did petitioner Waxton (Assignment of Error Nos. l, 3, =

8 (R. 160-161)). The North Carolina Supreme Court rejected their

federal claims succinctly:

"In the last three years this Court has

several times rejected these contentions.

They have been thoroughly considered and

further discussion would be merely repe-

titious. See State v. Waddell, 282 N.c.431,

194 S.E.2d 19 (1973); State v. Jarrette,

284 N.C. 625, 202 S.E.2d 721 (1974); State

v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974);

State v. Crowder, 285 N.C. 42, 203 S.E.2d 38

(1974); State v. Avery, 286 N.C. 459, 212 S.E.2d

' 142 (1975)."

State v. Woodson & Waxton, _N.C.__, 215 S.E.2d 607, 615 (1975),

App. A, infra, at 10a.

e 16 «

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF MURDER UNDER THE LAW

OF NORTH CAROLINA VIOLATES THE EIGHTH

OR FOURTEENTH AMENDMENT TO THE CONSTI-

TUTION OF THE UNITED STATES .

Although there are now twenty-one cases pending here on

petitions for certiorari which challenge the constitutionality

of death sentences imposed under the capital procedure mandated

by State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), this is |

the first petition involving death sentences which arise under

the post-Waddell North Carolina death penalty statute, enacted

19/ |

April 8, 1974, effective immediately. Because this statute does

18/ Henderson v. North Carolina, No. 73-6853 (filed June 8, 1974);

Dillard v. North Carolina, No. 73-6875 (June ll, 1974); Noell v.

North Carolina, No. 73-6876 (June ll, 1974); Jarrette v. North

Carolina, No. 73-6877 (June 1l, 1974); Crowder v. North Carolina,

No. 73-6878 (June 11, 1974); Fowler v. North Carolina, No. 73-7031

(certiorari granted October 29, 1974); Honeycutt v. North Carolins:,

No. 73-7032 (July 9, 1974); Sparks v. North Carolina, No. 74-669

(November 29, 1974); Ward v. North Carolina, No. 74-6263 (March 28,

1975); Lampkins v. North Carolina, No. 74-6673 (June 9, 1975);

Stegmann v. North Carolina, No. 74-6735 (June 26, 1975); Gordon v.

North Carolina, No. 74-6733 (June 26, 1975); Lowery v. North

Carolina, No. 75-5032 (July 7, 1975); Vick v. North Carolina, No.

75-5075 (July 11, 1975); Armstrong v. North Carolina, No. 75-5076

(July 11, 1975); McLaughlin v. North Carolina, No. 75-5077 (July

ll, 1975): Woods v. North Carolina, No. 75-5091 (July 14, 1975);

Simmons v. North Carolina, No. 75-5262 (August 12, 1975); Young

v. North Carolina, No. 75-5281 (August 15, 1975); Vinson v. North

Carolina, No. 75-5384 (September 3, 1975); Robbins v. North Caro-

lina, No. 75-5426 (September 12, 1975).

19/ N.C. Sess. Laws 1973 (2nd sess., 1974), c. 1201, §1, amending

N.C. Gen. Stat. §14-17 (1974 cum. supp.). There are now eighty-

nine persons under sentence of death in North Carolina. Forty-

five of these death sentences have been imposed under the State

v. Waddell procedure; forty-four have been imposed under the new

statute. See Appendix C, infra, for a complete listing of these

cases.

» 19 «

not in any way alter North Carolina's capital procedure so as

to limit or control the arbitrary and capricious infliction of

that State's nominally mandatory death penalty, petitioner in-

corporates here by reference the arguments and authorities con-

tained at pp. 26-140, Brief for Petitioner, Fowler v. North

Carolina, No. 73-7031 (attached as Appendix B, intra) concerning

(1) the arbitrary infliction of the death penalty due to prosecu-

torial charging discretion, plea bargaining, jury discretion,

and executive clemency, and (2) the excessive cruelty of the

death penalty.

This case, indeed, exemplifies the freakish administration

20/

of the death penalty in North Carolina. Four persons were

20/ The kine of arbitrary discretion in the administration of

the death penalty which is exemplified by the present consolidated

case arising under the 1974 North Carolina death penalty statute

parallels the same sort of discretion that appears in numerous

pre-statutory prosecutions under State v. Waddell.

For example, five open murder indictments, sufficient to

charge capital first degree murder, were returned against Albert

Carey, Anthony Carey, James C. Mitchell, Harold Givens, and

Antonio Dorsey for a June, 1973, killing during the course of a

service station robbery in Charlotte, North Carolina. The State's

evidence, as recounted by the Supreme Court of North Carolina,

State v. Anthony Carey, 285 N.C. 497, 206 S.E.2d 213, 215-217

(1974), indicated that the twCareys and Dorsey remained in a

car parked near the service station, while Mitchell and Givens |

went inside to rob it. During the course of the robbery, Mitchell |

shot and killed an attendant. Mitchell was allowed to plead guilty

to second degree murder, was sentenced to thirty years imprison-

ment, State v. James C. Mitchell, Mecklenburg County Super. Ct.

No. 73-CR-61589 (December 17, 1973), and testified against the

Careys at their respective trials for first degree murder. both

Careys were convicted and sentenced to death. A nolle prosequi

was entered against Givens, State v. Harold N. Givens, Mecklenburg

County Super. Ct. No. 73-CR-46182 (August 31, 1973), and Dorsey,

State v. Antonio Dorsey, Mecklenburg County Super. Ct. No. 73-CR-

47181 (September 11, 1973). The Supreme Court of North Carolina

reversed the convictions and death sentences of the two Careys

under State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974), because)

the trial court had refused to let defense counsel inform the

respective juries that death was the punishment for first degree |

murder. v. hony Carey, supra; State v. Albert Carey, 285 |

N.C. 509, 206 S.E.2d 222 (1974). Albert Carey was retried and was |

}

e Be

indicted for the capital crime of felony murder, but two (one who

went into the store where the killing took place and one who re-

mained outside as a lookout) were allowed to plead guilty to

lesser charges. All four testified at petitioners’ joint trial

and admitted their complicity in the planning and implementation

of the robbery: as the North Carolina Supreme Court noted, cnhie

the applicable legal doctrines of conspiracy and felony murder,

“since each admitted he was one of the four who conspired to

rob the shop, legally it makes no difference . . . [who] fired

the shot [that killed Mrs. Butler]." State v. Woodson & Waxton,

_N.C.__, 215 S.E.2d 607, 615 (1975); App. A, infra, at 9a. The

punishments imposed upon the four equally culpable defendants do

not, of course, square with this “legal” logic. Instead they

illustrate -- if further illustration were needed -- the extra-

legal, arbitary administration of “mandatory” capital punishment

as practiced in North Carolina and documented in the Fowler

brief. "These two death sentences are cruel and unusual in the

same way that being struck by lightning is cruel and unusual."

Furman v. Georgia, 408 U.S. 238, 309 (1972) (Mr. Justice Stewart,

concurring).

20/7 cont'd.

again convicted of first degree murder and sentenced to death,

State v. Albert Carey, Mecklenburg County Super. Ct. No. 73-CR-

46178, 61586 (December 19, 1974); his appeal is pending in the

Supreme Court of North Carolina, State v. Albert Carey, N. C.

Sup. Ct. No. 67, Mecklenburg. Anthony Carey was not retried,

however, and the State entered a nolle prosequi on December 19,

1974, State v. Anthony Carey, Mecklenburg County Super. Ct. No.

73-CR-46179.

e 19 «

The North Carolina Legislature has manifestly followed the

lead of the North Carolina Supreme Court in preserving procedures

that invite juries to nullify the “mandatory” death penalty in

sympathetic cases. Codifying the rule of State v. Britt, 285 N.c.

256, 204 S.E.2da 817 (1974), it has provided that defense counsel

may inform veniremen on voir dire that a death penalty will be

imposed upon the return of a verdict of guilty to a capital

crime (N.C. Gen. Stat. §15-176.3 (repl. vol. 1975)), may request

the trial judge to instruct the jury that the death penalty will

be imposed upon the return of a verdict of guilty to a capital

crime (N. C. Gen. Stat. §15-176.4 (repl. vol. 1975)), and may in

closing argument in a capital case "indicate the consequences

of a verdict of guilty,” (N.C. Gen. Stat. §15-176.5 (repl. vol.

1975)).The clear and inevitable result of these statutory pro-

visions, as of the Britt rule, is to invoke de facto jury dis-

cretion which undercuts the imposition of North Carolina's

supposedly mandatory death penalty in a randomly and arbitrarily

selected number of cases.

@ 20 «-

- ee eee = -_—

CONCLUSION Appendix A:

Petitioners respectfully pray that the petition for a

writ of certiorari be granted.

Respectfully submitted,

“) *

- f

ae i —

Se iG . . ‘ ‘* tw,

EDWARD H. MCCORMICK

Post Office Box 38

Lillington, North Carolina 27546

W. A. JOHNSON

Post Office Box 146

Lillington, North Carolina 27546

JACK GREENBERG

JAMES M. NABRIT, III

PEGGY C. DAVIS

DAVID E. KENDALL

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ADAM STEIN

CHARLES L. BECTON

Chambers, Stein, Ferguson & Becton

157 East Rosemary Street

Chapel Hill, North Carolina 27514

ATTORNEYS FOR PETITIONERS

e 21 «

State v. Woodson & Waxton,

2715 S.L.2d0 607 (1975)

Cc.

STATE v. WOODSON

N.C. 607

Che as 2155 t.24¢c07

and the Court of Appeals affirmed “a

fendant appealed to this Court on oe

ground that the case ms vived “a Sule eye

question nrising, under the nearer ye

the United State {ane} of this rowel _

§ TA-BA1). On 29 Apr it 1975 pl inti fi “

with this Court a motion to ono vc

appeal on the ground that it presented no

substantial constituls ynal Guestion

Carl F. Gaddy, Jr., Rake ih, for defendant

appellant. : |

George M. Anderson, Raleigh, for plain-

tiff appetice

PER CURIAM

i nte y this ap-

The sole question presented by this a]

peal is whether defendant 1s entitled to :

jury trial in &@ criminal contempt precece-

ing.

{1} The ‘idextical question was con-

idcred and answer J in the negative in

ay r tion v. Clothing Work-

Blue Jeans Corporatio: mage Sate

ers, Zid N.C. £95, 168 SF.24 $67. We rest-

: ’ vel

firm that well? Ree ako Codis;voti

ton by Justice Hushi: : age ae

4 418 U.S. 605, 91 S.Ct. 2057,

md and schelarly opin-

=" f

vy. Pennsyl\ ons bey

41 L.Ed 2d $12, Taylor v. Hayes, 418 U.S.

488, %4 S.Ct. 2697, 4] Ldi2a doe.

(2) GS. § TA- 303) prov! tes that there

ay be an ep) 1 of right to this Court

wating tee se of Agmeals

from decisions of the Court of Appea

ive p substantial q

which directly invelve # subeten "

? ‘ {*s tttut

tion ariming, wrest the Const 4

United States or th: Comstiiuien of tb

c o a ons interpreting

4 Wii ‘

State However, our ¢

} ?. Hant most

ew that an appellant mast

this statute require that ao ep;

nd show the existence GF a

either alleye 4

termination, and therefore plaintiff's mo-

tion to dismiss Is allowed.

Appeal dismissed.

fo Larrawccessne

STATE of North Carolina

James Tyrone WOODSON and

ad Luby Waxton.

No. 127.

Supreme Court of North Carolina.

June 26. 1975.

Four defendants were indicted for

murder and other offenses i.

with the robbery of a store. The ouhenor

accepted guilty pleas from two dcfemtants

to lesser offenses in return for their eat

mony. The Superior Court, Harnett — ;

ty, Henry A. McKinnon, Bt On ager

judgment and imposed maneator)y ers

sentence and defendants appealed. The Su-

preme Court, Sharp, C. J. het ! _ o

death penalty statute 1s constitutions:!, that

: ——- *™

{ ants’ mony Was ndmssiee,

the codefendants testrmon)

4,¢ iants

and that the agreement with cuodefencant

‘ at the ay fend

; : Si) me

did not violate defendants’ constituliot

rig his

No error.

‘ .

ial ¢ Litutronal Queswon

real and substantial consti "

which has met é

conclusive judicu! cetermines

wlroady been the subje t of

Faum, J., concurred and filed opinion.

tien or suffer

dismissal, State ¥. Closon, 274 N.C. 2%,

163 S] 93 ssh, cert c nied, Ott US }0S7

g9 SC. BIC, 71 L.Ed2d 759

+ J, Criminal Law o= 1169.7

ot prejudiced by ad-

Defendants were wot prejudiced by

3 \\ 4 j ( j te ot} . a. ‘ 5 sconmsiy awit wh

} t ‘ | Oo Wisse nO. Lestink iV of ct H

| } \} ' t as t » hd ' wr Ss ho

the | of a Ms tantial const

show the exten 7

, ‘ loch ha not atreat

tulion al questron ,

‘

, ;, re

been the sulsyect of conc! ve Maal lay

pleaded guilty to lesser offenses where de-

eh os! ‘ > e - ;

fendants themscives testified to facts mar.

i ffense charyred.

ing ther gruilty of greater offense charyte

{la} ;

——

-~—

————<-— =

oe soon oom

eee @ we Ooe*

G08 N.C. 215 SOUTH EASTERN REPORTER, 24 SERIES |

2. Criminal Law ¢=508(7) . ee ee

saulting Mr. R. N. Stancil on 3 June 1974

Testimony of defendants’ coconspira- With a 22 caliber pistol with the intent to

tors, who pleaded guilty to lesser offenses, kill him, thereby inflicting: upon him serious

was competent. injur.s, not resulting in death.

3. Criminal Law ¢> 1213 At the 2 December 1974 Criminal Session,

; in exchange for their testimony as State's

Statutes providing death sentence for witnesses against Waxton and Woodson,

first-degree murder and first-degree rape the solicitor for the State dismissed the

are constitutional. GS. §§ 14-17, 14-21. armed robbery charge against Carre!) aod

the first-deyree murder charyes ara!

both Tucker and Cerro!!. Tucker was :

mitted to plead guilly to the armed rel!

firs. Butler and as an accessory . ft ;

fact to her murder. Carre! whe iso kat

brother of defendant Wexton,

4. Criminal Law ¢>302(1) '

Prosecutor's announcement before trial

that State will not seck verdict of greater

degree of offense but would ask for verdict

of lesser degree is tantamount to taking

‘nolle prosequi or acquittal on charge of

* greater depree.

5. Criminal Law 302(1)

Shortest and best mode of catrying ou

: ’ H . M

ted to plead guilty as an ccc. ots

fact to both the murder and armies roovery

of Mrs. Butler.

‘ At the trial, the State’s first witness:

: : 2 - were several police officers, whose testime

promise of immunity is for solicitor to exer- a lations:

cise right to enter nolle prosequi.

6. Constititions! Law ¢2250.2(5), 268(8)

Criminal Law ¢=273(3)

Solicitor had authority to xeree to ac- body of Mrs. Butler, an employee o

cept guilty pleas to lesser offenses in return

for testimony against other defendants and

,agreement did not deny other defcodants

due process and equal protection. Const. from the register.

1970, art. 1, §§ 19, 27; U.S.C.A.Const.

Amend. 14.

Appeal by defendants under G.S. § TA.

2i(«) from McKinnon, J., 2 December 1974

Special Session of the Superior Court of

Harnett.

At the 24 June 1974 Session, in separate

bills, defendants, James Tyrone Woodson,

aged 22, and Luby Waaton, aed 24, along

with Leonard Maurice Tucker, aged 19, and

Johnnie Lee Carroll, aged IS, were indicted

under G.S. § 15-144 for the murder of Mrs.

Shirley Whittington Butler on 3 June 1974.

At the same time they were also indicted

for the armed reltery of Mrs. Butler on 3

June 1974 and for conspiracy to commit

armed robbery. In addition, defendant

Waxton was indicted for feioniously as-

[2a]

ny tended to show:

About 10:30 pom. on 3 June 1974, # potier

officer of the City of Dunn entered the bb Z

Shop on Fairground Road and foun! the

f the

shop, lying behind the cash register. She

had been shot through the head at close

range. The cash drawer had been removed

Lying, on the counter

were a pacl: of Kool ciyurettes, a dollar bill,

a pack of matches, and a box of Cracher-

Jacks. In due course, these items were

collected and sent to the SBI, and Tuck.

er's fingerprints were found on the pack of

Kool:

Shortly after the discovery of Mes. Hut-

ler’s body pole headquarters received «

call from Mr. Stancil, who lived just wer

the street from the FZ Shop. He reported

he had been shot and requesied heip. The

detective who went to his assistance found

him bleeding badly and immediately toot:

him to the hespital.

Mr. Stancil testified that about 10:15 p

m. he went to the PZ Shop and, as he

entered, he noticed that Mrs. Butler was

not in her usual place. A person, who was

leaving: in aw hurry, said to him something

which sounded like, “look out.” Almost

' BEST COPY AVAILABLE

‘’ STATE v. WOODSON N.C. 609

Che as 21S St .20 607

simultancousty Stancil heard an explosion

and felt pain in his back. He started lo-

ward the back of the store but, ob crving

that blom! was spurting from his arm, he

went home to call for help. A bullet had

entered his back, just to the left of his

spline, and ody din bis arm. Mer. Staneil

never saw Mes. Butler, and he could not

identify the person he saw leaving the shop.

Georye Will Carroll (George Wilhe), the

brother of Jolenic Lae Carroll (Carroll) and

half-brother of Wanton, testified that about

8:30 p.m. on 3 June 1974 he lomt his car to

his brothers, that about 10:95 p. m. they

had not returned it, an’ he went to the

police station end “reported he wanted his

car located.” Later that night, George Wil-

lic, aceompenicd by Waxton, Carrotl, and

Tyrone Woodson, returned to the police sta-

tion and reported that “the boys” had

brought his car back

Detective Melee testified that at 6:09 a,

m. the weat morning, June 4th, he went to

the home of Waxton's mother and request

ed Wanton to acoompony him to the pote

atation Warten det so, and after 20 30

minute ! him te his moth-

er'’s. Immediately thereafter Wasten (so

he testifiod Mater) arrcoped with a friend te

take him and dcfendant Woodson to the

ve '

Fayettovs roart, where they enplaned

for Nu Witth, N. J There they remi wed

until Jur Mt! when Detective Mohime

returmd theta to Dan

On 16 A } “4 { : ow) V’ tt . Wo Isor

rave Detective Mo! the first stater cat

he obtained fr any of the four, In it he

bmyplicated bitmeel’, Waston, Tucker, and

Carrol! in Uhe relly ry a | On the

basis ef the formation he furnished, Care

roll avd Tuclor were arrested AU 7:30 p

m. on June Ith, Tucher syed & confession

which i plicated Veet , Wanton, and

Carrot! Ou June 27th Carroll pave the

officers & statement, bat it was not reduced

to writing: and signed

Prior to the tine “Ducker at Carrell were

called ; wit ‘ for < State, counsel

for defer ' ; wbjected to thea corny terney

as witnesses on the grounds that they had

wen indicted with Waxton and Woodsen as

co-conspirators and principals for the niur-

der and robbery of Mrs. Butler and, if con

victed, all would have been subject to the

same punishment; that, as a result of “ne-

gotiations and ples harjatining” with the

suliciter for the State, on 2 December 1974,

Tucker and Carroll had been permitted to

plead guilty to lesser offenses; that in con-

sequence they were “prejudicial witnesses

against Waxton and Woodson,” and to per-

mit them “lo testify in an attempt to place

the blame for the incident” on defendants

infringes upon defi adtants’ right to a fair

trial; and that, after permitting Tucker

and Carroll to plead yruilty to lesser erimes,

the solicitor's election to put Woodson and

Waxton on trial upon a charge for which

the mandatory punishment upon conviction

is death “is unjust, constitutes an unequal

application of the laws of the State and

denics them the equal protection of the

laws as guaranteed by both the State and

federal constitutions.”

The court, “being of the opinion that the

matters raised go to the weight and ered:

bility of the witnesses and not to their

competency to testify,” overruled the objec:

tions to the competency of Tucker and Car:

roll as witnesses and permitted them to

testify

Tucker's testimony, suinmarized except

when quote J, is briefed below

We entered pleas of guilty to the armed

robbery of Mra. Butler and to bom an

accessory after the fet te hor nmiverder in an

wlternpt to save hiineel{, Pnovwinge Chat apo

these pleas he could receive sentences total:

ing 40 years. He first discussed Unie cure

with the officers on June 16th, at which

time he pave them a statement

Tucker, a native of New Jersey, came to

Dunn on 1 May 1974 and stayed around

“without any income, drinkings wine, wn

smoking: marijuana.” The becarne wequaint

od with Waaten and Woodson ohout two

weeks after his arriwal in Harnett County

On June 3rd bo and Woodsen spent a proud

{3a}

610 N.C. , 205 SOUTH EASTERN REPORTER, 2d SERTES

part of the day drinking wine for which

Woodson bad paid.

About 9:50 p. m. Waxton came to Tuck-

en's trailer, He inquired for Woodson, who

was not there, and told Tucker to follow

him. In about three minutes Tucker

‘ walked toward Woodson's trailer, which

was about a block away. As he approached

the trailer, he saw Waxton hit Woodson in

the face with his hand and heard hin advise

Woodson that if he didn't join the group

cither Tucker or Waxton would kill him.

Woodson had previously told Tucker that he

did not plan to take any part in the robbery.

The three men then proceeded to Waxton’s

trailer, where Carroll pave Woodson a tow-

el to put over his eye, Waxton got a nichel-

plated Derring«t pistol from 4 cabinet and

put it in his pocket. Tucker took

Waxton's 22 automatic rifle from the couch

and handed it to Woodson, Warton and

Tucker then got in the back sent of an

automobile which belonged to Carroll's

brother, George Wille. Woodson laid the

gun down in the front seat of the car and

got in beside Carroll, who drove the car

away.

Waxton announced that they were going

to rob the b-% Shop. A weel. earlier he

had told Woodson and Tucker he was going

to rob a pluce. As Carroll drove by, they

aaw a customer entering the shop, so Car-

roll drove a short distance down the road

and stopped. Waxton was yriving all the

orders ond he directed Woodson to test-fire

the rifle by shooting it into the ground.

After he had done co the group then drove

back to the BZ Shop and parked. Up until

then, the plan had been that Woolson

would accompany Warton into the store,

but at “the lust minute” Waxton changed |

his mind and gave Woodson the duty to

» cover the front door. He told Tucher to v

into the store with him and instructed

Woodsen to stay outside “and don’t let no-

bexty in.” p

As the two watked to the store Waxton

told Tucker to ask for a pack of cigarettes.

In the store they saw Mes. Butler behind

the counter, and Tucker asked her fur a

pack of Kools, which she handed to hin

Tucker paid for the cigarettes and moved

down to the right of the counter, Waxton

then asked for a pack of Kools. As Mrs.

Butler handed it to him, he procured th.

Derringer from his back pocket and fire!

one shot into the left side of her head. She

fell to the floor and Waxton jumpol over

the counter, took the money tray out of the

open cash register, and put it on the coun:

ter, Tucker picked up the tray and started

to the dvor. When he reached the door he

met Mr. Stancil coming in. He told Stanci!

“to look out” and continued towan! the car,

Outside, Tucker heard a second shot from

inside the store, He got into the ear end

Waxton “came oul of the store walling foot

with some paper money in his hand.” The

four then went to the home of Waxtun’s

mother. There he and Tucker went inte

the bathroom and counted the money, a! out

$280.00, which Wanton kept.

From the home of Waxton'’s mother, the

four went downtown to the Shaft Inn

George Willie was there and Carrot went

with his brother to the police station, Upon

their return to the Inn, Carroll tool th

others back to Waxton’s trailer.

Carroll’s testimony, summarize. excep"

when quoted, tended to shew:

He has lived in Dunn all his life. In Ju:

1974 he was unemployed and living with ha

mother. Prior to June 8rd he had Lows

Tucker three or four days and Woedses

about six months, Dis half-brovhe: \ er

tun, at agre 18, left North Cereus tethd We

to New Jersey. Waaton returned to Nort!

Caruling in VOTS and thereafter Carre’ :

him almost dgily. Waaton showed him

some of the karate “moves” he had learn d

in New Jersey, On June 8rd be and Was

ton borrowed the automobile belongings be

their brother George Willie, who lent it te

Waaton “for about 10-15 minutes.” About

9.00 p>. nh. Carroll drove the ear to Waxton

trailer. As he approached it, he saw Was

ton coming across the fickl with Woodson

and ‘Tucker walking: behind him, At the

trailer Woodson tokd him that Waaton bh v!

{4a}

+. 4. STATE ¥. WOODSON - NG GIL

Che as DISSE 24607

punched hin in the eve because he had been

drinking, an? Carroll gave him a towel to

cover the eye

Soon thereafter Woodson took a rifle

from Tucher and pot in the front seat with

the rifle in his hand, Both Woodson and

Tucker went willingly and did whatever

they did willingly. He himself participated

in the crime on his own. Waaton did not

make him. Cuorro'l drove the car past the

E-Z Shop and stopped on a dirt road, where

Woodson jot out and fired the rifle into the

ground twice. The four then drove back to

the FZ Shop. Carroll parked the car and

Waxton told Tucker to go into the store

with him. They got out of the car leaving

Woodsen and Carroll sitting in the front

sent. Woodson was the first to see Mr,

Stancil come aeroes the street. Tle pot out

of the car with the rifle but Carrol! putied

him back and told him to put the rifle

down. Me. Stancil went into the store as

Tucher was coming out with a cash register

money tray iv his band Prior to that,

Carroll hi: ! heard om shot fired After

Yucker came out and the man went in, he

heard one more shot. By the time Tuc.er

got to the car, Wanton came out ran tage

with seme dollar bills in his hand. Me said,

“let's gro,” and Carroll drove the car back to

his mother’s house

Back at hore Carrot! took the rifle from

the car and put it in the pontry. Me and

Wee lon sotto the Lying seam v hile Tuck-

er and Wasten went mto th bathre

About tom roinutes 4 for the four went

‘downtos.n, where they met George Vill.

He antl Warton “wathed to the poh white

tion and yot at str. wht about the car”

Carrell then tec Waaton, Weetwon, and

Tucker to W, * trainer. Carrell next

aaw Viaatouw woul 4.00 a. m. on June th

when he and Weedon eome to his mother’

houre. Waster tol! Corroll to pet rid of

the cash tray, which he had put in the

pontry. at 1 Carrell burial Rh beneath bos

mother’s hou That morning be wert

with Waaten cmd We

when Jethro Wynn took them to the air

tu Vaye levine

port. Carroll reecived none of the money

from the robbery.

Carroll saw Waxton and Woodson when

they were brought hack to North Carolina

on June Mth, and he himself was arrested

on June 16th. On June 4th he had talked to

Chief Cobb and had deni that Waxton

had anything to do with this case, What he

told Chief Cobb on that date was untrue.

On June 16th he didn’t say anything. On

June 27th he made a statement to Chicf

Cobb after being advised of his constitu.

tional rigchts.

On cross-examination Carroll testified, “1

made a trade to save my own life. ] am not

trying to put anything on Luby [Waaton),

I'm just telling what happened. LT agreed to

come up here and testify in order to save

my own neck,”

Chief Cobb's textimony tended to show

that the statement which Carroll gave him

on June 27th was in substantial accord with

his testimony, that asa result of the infor-

mation Carroll gave him, he found the mon-

ey tray buried under his mother’s house

where he had said it was; that Carre! told

him all previous statemcrts were untrue;

that he had made no notes on June 2704 of

the questions he msked Carroll and the an-

swers which he gave, and Carroll signed no

statement; that he had tried unsuccessfully

tu locate the pistol which killed Mrs. Butler.

At the close of che State's evidence de-

fendants moved (1) to dismios the charyre

against them Iweanse Tucker and Carre!

had given ceriain lestimony whieh God not

appoor in the “summary of ‘Statement of

State's Witnesses’ ” which the robeitor fur-

nished counse! prior to trial; and (2) “if not

dismissed then, in mny event, a juror be

withdrawn and a pew trial ordered.” The

Court denied these motions.

On the pround that the following: Meme

were not continued in the summary defend:

ant Woodson then specifically moved to

strike the statements (1) “that Wooden

tou, the pun from Tucker” at Waaton’s

trailer, (2) “tbat Woodson pot out of the

car and test-fied the rifle by shooting: it

[5a]

»*

G12 N.C. | 2S SOUTH RAST NIN Pavone, 2d SPRIPS

twice on the ground” before the group

stopped at the B-Z% Shop; (8) “that Worst.

son had a gun before, during, at and efter

the robbery while they were in the cor";

and (4) that Woodson with the gun at

tempted to get out of the cur to stop Stan-

cil.” This motion was also denicd.

During the course of the argunient: on

these motions the solicitor told the court

“for the record that Mr. MeCormich, (Won!

son's attorney) and [he}) had had severe

pleading neyotiation sessions” ane thet it

was his innpression that Woodson woul! cue

ter a plea on Monday morning alow; with

Tucker snd Carroll, Wheres, Mr.

McCormick informed the court th th. hal

never stated to the solicitor that 1h) chert

, would plead guilty; that he tekl ics!

“would make certain recommendst) te

his client” Woodson, but he had “Seow ton

ly told the solicitor that Woodson say. test

he was not yruilty.” The solicitors re,

was thatalthough Mr. McCormicih i! on

offer him a plea but, as 2 result eof whea

discussions; it was “his impressh oo" thet

Woodson would enter pleas in his casos just

* as Tucker and Cerro!!! had dene.

At the conclusion of the forego,

‘sion, defendant Waxton, through bis atte

ney, Mr. Jolimeon, requested the coor t's je

smission to make a@ metion in «

Whereupon, in the absence of the .

in the presence of only Judge *

defendant Woodson end his att ;

MeCormich,, Mr. Gien Jehne on, t!

the court reporter, and a dey

defendant Winton tendered le U

plea of pvilly to being an ac

the fuct of murder and guilty «7

robbery, the sume crimes to wi

had pled guilty.” Mar. delnoon «

the judye and the soheitor Ghat Waxten tae

anid to him “that be thought hoo,

tled to the same treatment tht" '

recelved and he wanted to d

thing Tucker had done.” | Whe

court inquired of the solicitor, °

your position on that?” and «

-answered, “I cannot aceept t) yp:

Bach defendant testified in his own be.

half and offered no other evidence. Wax.

tor’: teotimony, summarized except when

quote t) tended to show:

Woeaton, a native of North Carolina, efter:

living nine years in Now Jersey, returned to

Dunn in November 1973. Woodsen, whom

he had known for eight years in New Jer-

s 4, came with him, and the tw lived to-

po ther ina mobile home park. Waxton met

Tucker, abo aw resident of the park, shout

twe wees prior to 3 June 1974. Maving

“tothed about it and planned it in advance,”

\Vicaton, Weodson, Carroll and Tucher had

aproad te rob the EZ Shop that might

Were on ond Carroll were unemplos oc

“Ticy said they wanted money, so they

vere geoiyge to pull a job. 1 said, ‘Why

no's"

About $:09 p.m. on June 3rd, Waxton

went loobin,: for Woodson because Woodson

“knew we woe going to rob the PZ Shop.”

Mi found hin at the trailer of his girl

friend Waelson had been drinking, but he

wa oreterank. An argument ensued, “He

said somethin, to disrepect me and TD sail

suinethins te Ch respect him; so TD hit his

Waoocn thes loft without having men.

ti aed the rebbovy to Woodsen Voodson

jot wed bela him and, when Chey got to

\. tr cer, Carrell was there in

‘ ‘') *S eur Wasxton owned a 1972

be +" N63 Volhswagen, but thes

' V'he's car in the robhory

froin another trailer ane

" as re sudy ti fii Iv

and the four bof in

ro with Cerrotl driving.

‘ \ Ro, rifle, whieh Wastes

‘it “to hill smal

They ther cios

' ‘

by the 1-2 Shop, which

: 's from Was ton's ts

' rt road where Weod

the pifl: to “mabe sure it

he had fired it twiee,

'e BZ Shop. Woedeon

to. in the eae while Waa

1 t Waited iF inte.

"BEST GOPY AVAILABLE

Waaton’s verrion of what happened in

“TL was about to ask for

but before |

dfore packaye of eta

side is at folle

a packare of Root cigarettos

spobe, Pu Ler ashe

retles

he shot her

ter awl stork

and ther got

out As J ran out } wet Mer.

called Tucher @

body i conn

tance from the eat 1 heard

didn’t have

there in th

or weapon after De

When | heard the

‘

(vue ae

qarre

the car We

more then five mi

From the FE

home of Warten

wei

ed the mony!

8325.00 snd |

hand dithe |

he bad off

moth.r ene

After she pane

D then gum

' getting

Sloe and

P EVany Ce

fee ad

HPN A

yivcod at ¢

" niehely

ovel

her to beep it for hit

STATE vv. WOODSON

pletey

lateal Dornnper

hires the etgarettes

pod over the coun

the money out of

the cash reyrrter }yuta handful of money

afraid so J started running,

Stancil and |

nd told him, ‘let's po, some.

we’ After J got a short dis.

another shot. 1

any pun or weapen at any ime

} didn't have any pun

ane out of the store.

sccond shot Jaonore

out and we be

‘pot it the Food Store

four went to the

'e poother, where he count

There wes

N.C. G13

Chee os TIS SE 2H EN?

he “was telling something that wr not

true”; that the officers never pave him an

opportunity to make a statement before he

took the stand, that they only listened to

what Tucker, Woodson, and Carroll had to

gay. ,

Woodson's testimony, summarized except

when quoted, tended to show: He and

Warton were good friends. In November

1978 Warton had brouyht him. to North

Carolina to help him escape the drug habit

which he had sequired in New Jers y. At

first he had lived with Waxton or his nveth-

er and George Wille had gotten him a jo’.

On June 8rd Woalson was livingt with his

girl friend From time to time Waxton

; reminded Woodson of what he had done for

th rot i him

Warton had “inentionc A” the robbery to

Woodson on the morning of June 2nd, but

he “never agreed to fo along.” Woodsen

and Tucker spent most of the day on June

Grd drinking wine which had been pur:

chased with money Woodson’s girl friend

He and Tucker had spre :

roll ry.

had piven hin. : |

that they would not be in any

a . : ; - : 4

That evening whe Waaton found Woodson

Wis xlur ‘s

a" ? this , J mh qh 2 ‘ “ = " ‘ _

Later buena ul, on n nt his irl fr nd . Or tle mn axton cul (

‘ j ‘ “ 7 ed ‘ en ‘

the pun wit! him when they TeX : s. him and taki him he was Crush. When !

down. °! The asi ner wi? a , told Waxton it made he differenes Ins hy)

He they bead pre . whore. Ws ye 4

who tol! t! he ill ' : ties he was nol gong ony’ here, — we

robbery VW} thoy denied the aceusa! him iv the eye and said, "it Tdont hall you

x on . , \" the ; ¢ . ia? gin ”

he ‘ ' \ , : : ’ : ‘ wa. Vu ler will, ( ome on, Ke ’ i sad

Lol ‘ si. ; , . ; . c } i TI , Wey ~ VIS “pert ity high” b it Le Wi wt

29 ‘ ' } fevwaett Cie ‘ heii . a wee -™

lie tell au Detective Sehinet had drunk Ne knew what he was doing He

next} — rene jonk a totded tea po with Waster and followed

tathed tu | \ ' , “& sf . 6 cave. “ | om Tet . 4 , , J

r ‘ ! whi the Blase ’ bests lo hi our Phers . or og

-™ * : 7 ' ' Son ’ ton Wiatotn s 8 fle, a lle pot ii. Une oT

nit ' , } | a Thee \ ie yim r . 1} } ‘

Ulist , “ . . tig J oth ‘

Care te I , \ ton hed beer with it of bi, “own eres er ¥ he he

ATA intial ' ae _ ue 8 Wherry, ote '

i the Dunn jail for “a white,” Wanton there was going, to a a '

om ' 7 ' a i ! over at } } nw VWaaton hi { the Yer etn r NO ON

shad iat rs ; gi . ~ * call teat-

He Mian tell th. detective “who @id the forced him te £9 Ne ea is ae

. %%q' ‘ Pwith the re: ing the pun Qn the way to Us 1 ay =

Oo\! ; ' , ' ! iro “to

; ; { ie i We ' cron the bali was the first tine Warton told & ‘ a

rs } ! vd Woe who did, th watch the front door ated we t | shane my

aet : WW 1 Ty Ler | al dor in.” Ile nats 't baave yene pry Weakly Ve abe ee :

it , he had ahed hen Woalson, however,

Waaten test

Yucher shit

the

Pahiat he hed hee officers

joefy drat

with the towel over his

When he } ‘ ard

“was laying bac!

to’ i his ‘ eye, the rifle hy his side.

(Va) ‘

G14 N.C. 215 SOUTH BASTEEN

the first shot from inside the store, he

jumped vp and saw Tucler coming, out the

door and Mr. Stancil proing in, but he made

no move to stop him. Then he heard a

, second shot. Tucher was outside the build-

ing end almost immediately Woolson saw

Waxton cmerging with paper money in his

hand. ,

From the E-% Shop the four went to the

home of Waxton's mother. Waxton handed

his .22 Derringer with the nickel-plated,

pearl handle to his mother, He and Tucher

had the money. They went into the bath.

room and closed the door, but “there was no

division of the money at that

time.” After going downtown and secing

George Willie, Woodson and Waston re.

turne? to the home of Waston’s mother.

There Woodson “started to mention about

him shooting the woman,” but the woman

was the Inst word he got out of Lis mouth

before Waxton hit him in the other eye and

steprored Lim. “lie told me never in my

life to mention that woman's neme agein,

ever.”

The next morning, after Waster re.

turned? from the police station, he told

Woodson “to get a few pices” (elothes),

that they were polup to New Jersey. Jeth

ro Wynn took them to the airport and Car-

rol) went along. At the airport Waxton

gave Woolson money from the robbery

with which to buy his Uiclhet aad then balled

up the rest of the money and teld him “to

hold it.” In New Jersey, at the home of

Wexton’s nother-inlaw, he “pave bach all

the money” te Waxton, When Woo!son

was biter picket ep, Le returned to North

Carolin.

Later, in the Donn jail, Woodson herrd

Waaten “when he was hollering shout mit.

ing a confess io

Meohiser.” The detective toc him over “im

front of Waxton,” whe told Mohiver he

knew vho shot the woman and that he

would tell Lies where the pistol was if he

woukl pic Tucker up and lock bin up.

Woodsen did not make any statement at

that time because he “hod alreaty made

[his) signed statement.” Ite heard Waxton

volurteri'y,

he wanted to speck bo

[8a

REPORTED, 2d SERIES

tell Mohiser “that he did not do the shoot

ing; that it was Leonard Tucker.”

As to Woolson the jury returned verdict

of “Guilty of Murder in the First Dopr.

charyred,” and “Guilty of Armed Robbery

charged.” Upon these verdicts the eh.

of felonious assault having been merged |

the charge of first-deyree murder, the eon

impored only the mandatory sentence of

death.

—

As to Wanton the verdicts were “Guilt

of Murder in the First Degree es charged,

“Guilty of Armed Roblory as charged,” and

“Guilty of Assault with a Deadly Weap»

with Intent to Kill Inflietings Serious dn)

as charged.” Upon the charye of felon.

assault the court ccjudped that Veaaten !

imprisoned for twenty years. Upon t!

murder an! roblery conviction, the 4

bery charge having Loen mered in U

charge of first-cogree murder, the cour!

imposed the mandatory sentence of deat!

Fach defendant epponted fro:a the +

tence of death dircet!y te thi, Court ur hy

GS. 6 TA-27 (4) cl, upon Water's t

we certified his app

imprecd nu

1 from the sen’

por his conviction of fle:

assault for initi.l apjpaticte review byt!

Court woder GS. & T/A 3Ns)

Rufus L. Edmicten, Atty

James FO Mepgner, Jr, Aset

Raleigh, for the State.

Gen, ant

Atty. Ger

Faward Vi. MeCormict., Lillington, fe

James Syrone Woodson, Gefcudas'

Vienst.

W. A. Joly

ton, defon amt agpelhout,

SHARD, Chict Justice.

{}) Vatently, defer fants’ riotion to «

miss the charps

cortentions thet

egieet then and (

, . .

bees ceortnin item. «f

evidence were omitted from Uhe suns.

merit and require no discus won, Mach de

fondant went upon the stand and volun

}

he him 4

STATED v. WOCDSON

Che asPtsnt 2teo7

N.C. 65

}* sthorw . . .

‘ GLa rh W ne compotent to testify is not ren

of fret i t? tC «4 ‘ A we ler

concede. the oun! ! ‘; hes coumcl dered ineompotent hy the fact that he has a

: . ys differsnee tn premise of immunity or lenience for him-

. ir testis Tr to who fired a) self.” Annet, 120 ALR. 742, 751 (Mas)

shot which | Stes Butler nw « f , LC. SRI. Ie

sapere } vy the see State v. Watson, 283 NLC. SSt, 166

‘ yt / \ vl, sinee eae) S.F 2d 232 (1974), annot., 24 LALA. (Nu)

te oe oererm '* ote ; ’

adi hes ‘ of the f who con 442 466 (1010)

aspired to pelt makes t :

; ' As Justice Barnhill (later Chief Justice)

perp ‘ it mi toy

» rob ! ‘

ny, GS ba..87F « on 4

first Gey In 4 ny

pres r 7

anil | , \ to fu

eit! } +!

ce f ; ‘

bury y bout i. <

why ¢ ‘ ‘

ed por; the « ane

} {

Vor, a

1?) } ( ¢*

ther felo fi

said in State v. Relorson, 215 N.C. Fey

3 S.F.2d ood, De (19. ) “Wt bears a

a im the the ecredihil is of a witness that he is ar

accomplice in the erime ¢!

Cie

feed

pitts t

wergeed end testi

for the prosecution; and the pendency

int ul » Of an indictment against the witr oss in ti.

cates indirectly a sit

lar pootibility of his

ration u ne f » fies ify .

: currying favor by testifying for the State;

ef af an te ;

' ut so, too, the existence of a promire or prot

vw! : capectation Of pardon for his shar .

' ’ ;

; Vi these ; hy {

ye ¢ jt re ermne cha ged 2 Wigs it

‘od | mn} ' ny + ore .

Phy = on Lwidouee, ct ed. 359 See ) N.C. vi

j ck ag’ § Pa (Lr } | ° hk v. 17s)

P ball of ' a

Judy Mekisnou correetly beld that

* it {? ‘ ‘ ‘ ‘ " >

a Sucker and Carroll were competent wit

. horses and that (heir etatus as ce Cunsypyyt

é ae ” “ri es

. bp e604 or eat f. P 4 +? *s. *

or { wie DTA ‘ SF oA bore Up t

, ,

weighi and ereditutiy of their testime:

P ’ , 7) ‘ .

' and Hos uj ii econ eC)

P :@ ; 7.

‘ G.S § 14 17, % revrwku on - Ay ] “4

by the enact t of N.CS Pat ay

’ ’ |

) 4, $ ) }? ; ‘ L nuresr is hi

! "a }

Ge ypre ! { } tw, bb doath Lx

_ ‘

4 A fer ’ tvul f !, ', ‘? 1) it cA} |

’ i

] ‘ . \ ! \ of N rth ¢ ‘

Linas [we US Conet. At Vi

, ‘sy v)

‘ fit ot N.C 3

- : } » wf Ir (| ! t t! ‘4 \4 (|

thet w or : vere | my t) ‘

le ti " om t! ‘

’

, ,

sito? ; f . ' i vib Van

nerely pepe Sev & v. Wad

” ‘ ;

‘ ‘ 3 ; ’ } - i? : ; ; ,

’ ! ;

os ‘ ~ ( P ‘. : | . 2 l

‘ {, } Lula Von , of N’.( )

' c | ‘ ’ ‘

‘ : ' ( v. Croweler, ¢

Be mS SM :

() } eiute 4

Avert ]

3. ( 9 &be 6 ‘ isda

‘ ? J ‘ }

(2) All { ' bere of the Cour

, ,

‘ , oe ,

. ‘ ih j ’ ve ‘ hol

Cam. ata Voted ty pennaanl

GIG XC

for the imposition of a sentence of life

iinprisonment, the dissents were not based

upon the premise that the death sentence

constituted erucl and unusual punishment cree murder it woul

unfair” to permit

guilty to offen

or that there were any constitutions! in-

firmitics in capital punishment per se. On

the contrary, the thesis of the dissents was

(1) that the decision of the United States ers

Supreme Court in Furman v. Georgia, 408

US. 288, 92 S.Ct. 2726, 8 LV. 346

(1972), decided 29 June 1972, had invalida-

ted the death penalty provisions of GS.

contends thet the

§ 14-17 (and alse G.S. § 14-21,G6.S.§ 14 52, power which denied him ave proce

and G.S. § 34.58), enacted in 19, and (2) the equal protection of the laws. Def

that until the statutes which made death ant Woodson, who tendered no pea

the punishinent for first-«legree murder, contended throuhert that he was

first-degree burglary, rape, and arson were — yuilty, argues thet “duc process and ¢

{ { ? | iv ly, j :

rewritten or amended by the General As- protection” require that he ree

ser..ly, this Court could not reinstate capi- greater punistiment than his secot;

tal punishment. could have giver under their p!

1074 the =e

On & April 1974 the Gen ral Assen ry “Fron th carticst times, it has

. iho > . ‘ — aos -S 47 ’

rewro.e GS. § li 7 and GS. § 1-21 to found necessary, for the detect mnect

provide the death sentenc for firsi-deyee sshment of crise, for the state tos

murder and first Geyiree rape. At the sence the criminal, t oos fur testit

time Horew rote G S. S }+ Oe mie G.S S }4 v hich to convict the es 7

f, tatee Be r His.onmMe t t yor ] . > . ’ op

§$ to provide Pfc impr — fo bert erime. While such a offers a}

yi e first deywee and arse ) :

ry in the first : gree i son AS tO in te treachery, and sometimes pet

eengees eensere 88 get gpl more guiliy to esse, tends to |

committed after £ April lo, hy its rowers a : Dy) Bae :

. : ( 00 94 thet and break up ce !

> £14 Para GS. & 2.4 the Gener- mle ; ; =

of GS. § “ one 7 7 ore , criminals sust of ©: ot

@ Aancmity eliminate’ Me Ervin oe eften beads to the pu F of |

which three members of the Court had alis- 7 -

7 ; . ‘ pers vrs . hy vf ‘ Ce mr 4

sented to the imposition of the Coath sen - a ; ae Se

{ , : ae. : Pneretore, ont pie ie Ls }’

7% wo osuch crimes comm ites prior iO ’ :

tence fe _ “7 . has bece waiforimiy hel’ Uhat {

that dete. The felony-niurder for whic! rr > eel

" : . 7 : euntrackt Wiel a © ! cM

Waxton snd Weedon have been convict . nae?

- eps from prosec:t je sl

Was committed on o June Wi—oo ces . ia

‘ ’ , ' ; fz.0v by " . 6 f\ . :

after th ] a ture rnceechiu ky yet whet) : .

P , . you eet alt ar.) « }

policy of this State with refers tr capital ag (Cit '

° - ‘ . wweu Or he Onin

punishment Until changed by the Gener! : as edd

eee ree ae gram v. Prescott, 13 , 2

Assembly, or invalidated by the Sopmens« ain ee , : :

“ - ; So. Sov Cs » hk reo ¥. SY }

Court of v! ited States, that policy pret, : geet

ta | : $15, ic? : v. . i: ), ; i f

Banc .

the history «f t nantes of

Coun ol for ¢ fondant: ? althe: ‘ h gwar tice” when ico i “tur ! ty

‘ef the Wadicll and Jarreite Geer ions, as dence,” sec United State. v. Pe

well as thy subse vucn! ules barved or thie 10), ot, , Ld! (] ): a\W! Sa

have understandably felt comstrained to re- inal Law and Procedure § 165 (15%

peat the constitutional chulhige to the CJS. Crimine! Law § 4601) (1

death penalty. R.C.1., Criminal Low § 10) QS)o),

{10}

ton, Woodson, Carrell, :

215 SOUTH HASTERN REVORTER, 2d SERIES

conspirators, are equally guilty

two of them

bea:

soll

cept his plea was an a

the

“sf

of f

fumelan

capital

mh)

rbitras

‘

change for their testimony against Uh

Defendant Warton, who tender

the close of the evidence the same p’

which Tucker tendered prior to the tr

. !

ust to

Defendants next contend that since Wis.

1 Yucher, the f

STATE v. WOODSON -

:' Cite as 215 S$ 1.20 607 ; * N.C. 617 . ,

| WAm & Eng Ann Cas. 747 (1911), M4 LR. right vested in him “when, in his judgment GIS N.C. 215 SOUTH EASTERN REPORTER, 2d SERIES ro

A(NS) 459 et seq. (1910), the ease calls for it, to enter a nelly geure- _— ” =

? In many states the proses ting attorney qui and allow the prisoner's discharyc, 4 " - _ ta . . a ” 8 a gph nner greet soe

has no authority without the court's con- which practically accom lishes the same . , ym Mr. Stancil is overwhe!: nee

sent, to make a binding agreement with one ‘ends as [a] pardon.” The solicitor had full - In rejecting the appe lant’s contertions ,

charged with a erime that if he will te tify authority te make the ayreement which b: ; Buryer, Circuit Judge (new Chief Justice of licitor any incentive to accept the plea be

against others, he himself shall be exempt made with Tecker and Carroll, and we hold the United States Supreme Court), pre nted tendered at the close of the State's c.1-

‘ from criminal hability or be allowed to that it violated neither the Fourteenth As on Gat Os United States Attorney ts a.

plead pouty to a lesser offense. “In states Amendment rights of defendants Waxton charged ath Cs mani enceniien ot Ge

in which a prosecuting attorney may enter and Woodsen nor their rights under N.C . . laws and prosecution of offenses against

5 at neuebainan Gaia re ou, Camt, art 1 €§ 19, 27. the United States, ant, ns such, he must

court, he may grant a witue:s immunity ns eee iad a a | . have — diseretion. “To say that the

from prosecution by contract without ap s Mr. Justice White said in delivering United States Attorney must literally treat

_ every offense and every off nder alike ts to

Woodson at no time tendered to the State

a plea of any kind Throughout the trial be

contended that he was innocent because Ts

had acted under duress from Waxteon 1c:

sspvel of tha coat” 98 Am Ser 9d. Criead- the opinion of the Court in Brady v. United rn in dae Rage -iay 0N he

. States, 2397 U.S. 742, 90 S.Ct. M63, 22 ' delegate him an impo: site tash; of courre,

«J

defense in view of his testimony Uhat on th

night of the robbery he hnew what h

' -

na! Law § 153, sce also §§ $14-S1S (1965)

3 ’ eit’ Jo * “e cS) . ”» . - - ot ° ’ . . . .

4 LRAINS) 42-43 (1910), IB Am. € L.Pd.2d 747 (1970), “[ W]e cannot hold that : this concept would negate discretion. Myrt-

ae \. ete -“eveed CIOL), Am : — . ' ° ; . vat e wot ir - ra

Bae Ann Cc 28-719 (1922) - ow it is uneonstitutional for the State to ex- ad factors can center into the prosecutor's doing; that he pot inte the car o: his «

athe? : inv ded GIS), SANOL., ov , . . . . free will afte: re wm sll of

ALN 1277 0 The ¢ treat ' tend a benefit to a defendant who in turn decision. Two porsens may have committed ree will after having: known all cay

ete. Thee (ay, The courts treat such obey : : “th S poine he Lhery”

“ prom! _ t 43 Mie faitt , extends a substantial bem fit to the Stat what is preci-cly the same legal offens: but there was going te be a rewwery , U

) ry cs te . , ’ . ‘ . se aw ead al ¥ . .

‘ : o> 5*4 “ Tt) ae Oe wl Cc jainh ana - " . s . ‘ gu? 1” _ ! —_ x , .

ai aaa is a “eb ' me ee Ad. at 753, 99 S.Ct. wt M71, 25 the prosecutor is not compelled by law, Guty had not seer, Wanton during the du)

A tiete ¢ pubuc presecutor, the . , 2% oy ould have gene an f

court vil! ett 4 R f : } © LFd.2d at 759. In Lisenba v. Cuiifo: nis or tradition to treat them the same as to he could have gene anywhere if he bol

ut i SeC Lal. lemme eee ih aunt? \ sich ‘ ‘ao « ‘>* + * re : . eh «sn {iia¢

has | ' } ‘ | $14 U.S. 299, 227, €2 S.Cr. 200, 285, 86 Ld charges. On the coalvery, he is expected to desired to do so", that his stayin; t

s been pledged by hia is kept. Caimrer . ome sen a aching . ; : . ~ —— .¢

: - mi - : 166, 175 (1941), Mr. Justice Roberts noted exercise discretion and commen sense to the ar with the rifle outside the BZ?

v. State, 32 Tex Crim. 18), 22 S.W. G82, 40 ; ice hoverls moted era

” » == se > # . . -~_ . — ' «¢ if - , on: Calas ; . sat a A * * the y “w © it ’

° AmSth. 703 0 < Cy i! ’ that “the practic of taking into comidera- ° end that if, fer exampe, one bs a young Carroll's driving the car wes Je ae e

ae ee ‘ é4 te), S< Litee v. wie . . 2 . 4 } a- © Md ®

94? | } no MNS. tien, in sentencing an accomplice, Lis au! te ; first offender and the ether elder, with 9 4 part of the plon ac was Wantor

22 ba. & ii, »Sn vd 25 (102), State v ' ee ; ~<a me ; “pee er tea

" : ‘ yo Seare ¥, the state m turning stat %. eovielos _ . crinain.! me od, or Cle pl vel i: Venser and Tue PS PLttays beeaee bles Laede Ste Zi

Ward, 112 W.Va 3° #1965 S.E. 893, &5 — evidence can be , , _ ~~ ; as . e ;

ALY 1 ea nsec dr no denial of due process to a convicted , the other a dominant rete, one the Misi Jur.2d, Criminal Law 3 Wt (ive)

y - ‘ in Ae v. Graham, 12 confederate.” ‘ a tor and the other a foNower, Ue prosecutes Ww ,

room BM, 32 Am. -2 4«_) 31879 , er . Ve rot wwever, the rnc? corel 3

u aa , l i Wi (.s. by} . : can ane +} sath d 1! r' such fector mie hea Lue, ; ~e* | = — i

nit o athe ae “ase fo. .%5-* OF cow ns Posslen <r » ‘ ‘oO f maT ry il Fees Fishts ce ate

KC a v. Tee, Case No. bo, , In Newmen v. United States, 127 U.S , S geeount; ne court hac any jer iclion to taking, Oriel juncge funy ot 7' .

Sug q)} ies l stout § ‘ » BP en De 4 eae yf oC ‘ > rere ome : - a . . . wi : ne TC: . ned ¢ .: . ~

~~ ( ; ted Stater v. Weody, App UAC. 266, 82 Pd ate Uses) the sul inquire into cr review bis deci vot Id. wt oe cue appraise Bae oar we ‘

2 F.2d 202 (.Mout.1925), United States v. question presented was whether it was a ; 481-482 Woodsen the full benefit of hie « ;

’ - . - ~~

’ > ,, cf _” * ‘ * 7 ~ ' ] °

Broliw, | ‘ , i (SDB 145), an denial of the apy! Nant’s comstitutronal o oe ‘ that he wert with t Pea en) tu rine Ue 2.

not e’} ' ] } 7 } soe, he +" ’ 7 . ‘ Mere oem SUI IED an ~~ * a a creak S} 4 ! ; ! f “

oe a ok UL Sey (a te) rights for the United States Aiturrey to mations Dees » ereenagy WHA CMMs, from Wat

: “ , MO COMSHLU ei! preres Oyler v. Bolesy . bs —

' . ' “fe? — . accept a purty pica fen iby az *..9.9° : a : ury were py tra. taut 3 Ve

{4} I N ri t ! is; Cc Solu or? | ' : a tenes pet by “eo sales 368 US es i P2 D1 "1 ] | Sa ’ : .

: co-defendant lesser of? ° : : Pure along and cot wheat I<

ad / : ; ot : ; tefendant for a lb , of! ywnetor Us — - : 4 . mie ati iwi ~ te el

ac ‘ r i.ul ta wl qin os . : a 4 . “tr = 446 (). ‘) barbies e the defer [elena e, Ry a e

powers j { } t t Stat ' ] ’ pmadiclinenl, Wille Peruoitys fT a js the egu } i eivet uty? : he ’ +h well-fout “we oS

i 4 evs i ; . ae be eel » : ie iit. ale oe eae Oe | : — } ot . - .*

nou tf ‘ ‘ Pebot the | ‘ —— or * a ENE Sy nf doth wean Amenenens.)| ene taut e hint O eg ; { a “i she

‘1 ‘ ° — tiddicla > jor hh slop . a0 ' ; a ' ; ‘ Wii ins .

wo net § 2 We wo! of Tira! nl — seid. y Gree t . tion wae delibcrat ely f pju~t.f . = 7°

; . , n\ phe co fond: nt was alloucd to pica - y-

degre t for a verdict aa ape BON Cd UG Jetcet ‘ able sto: dird, sueh cs race, teh, or Gt Finally, we rote t \

uLiv te the mo , mee nor ‘ ee ' P ,

of socom! ror mantauurt — BE DRT ANSTS OF PLAY Sere : er stbitvary ¢! ration” Unted &

‘ ‘ ‘ j e , . . : : . Soh Vere s ; :

ana 3.2 ° oof | , ae . > . 5 @ . ‘ o> 4

tanto ® to t-.' nollie ps eal oo Dt , inact it howebrecheng, Uhe aj, y. Stecke, 261 F.2d 3345, 159 (et). Car T ly; Yuct ms! tt '

me ; ant we tr , anc 2 ' . ; t , : e ; e*? - . t 4 ‘ i

ac ie. ‘ ‘ eC { nt-<! jre ’ Pe h . " . Shs 1 Uh res . - See Cum: *, be } ry t . "\' te les z ££ -? Bi . ‘ , ‘

der. State v. 3 oP NC Ot ec og 6S He contended that the United ‘ * atory Firfereement of Must —— G1 7 wo! ’ : a,

. - - owe, 4 ™ . : _— —_ . leg in ° oe " a’ ev 4 " gf. age: i te te

c ° ‘ ‘ ’ . Sine Att rnc\ A SF ! ' 4 . . ‘ .* . ® . a

Ss} i se, ‘{] i) 7." al \ Dann rs, wi . oe A mut had advnn i ‘ , Co! LJ t% 1} . i}} * Jae \. ys vider 1. {1 »

N.C. 8 ’ | ' dus process And Oqyual protectin in that +: ’ ' :

. : both “wor " In Lists ¢ * we § ave To j tie Con errr... bool pe lur Li - Je

. 4 eyy ’ i. ‘ peo ¢ ° ° ’ . , : '

1S.G) As 4 ial » in Sate « Bas . : ana to stitution.) ecu mriy ta Uae don vssehe. @ hnowhdpe of barat '

. ' Vos. F o haat \ ae arrit one t\ ’ e . .

: . ’ j one porty an avenue Ga Cscapo Wilt . , et : . .

&) N« i ‘ } ; 2 . ‘ ’ . ’ tion, HO ah eb oet me. , aml no #fi- foriuats im Va ? G

(3 t Cand rclatiwely manor purcohonat while re fu : ‘ ‘

best mo of out bron of at ; t re trary clhosuficction, AN lecrel va be fa rie! port tes youn: bred

; . 3 cary, " he fame pe ' —_—_ ' ° . '

' . procecate te Appellant Veet .

pmri unm fi ‘ = . P : . ant ave Vio thf rere e ¢ ‘ "4 We fred we cvetes th..t t!

. ‘8 ‘ rs ied the S.athG.rra of f-. ’ ad , — ty il ' .

oeae Te berees ee we 5 ie nll ’ . ) - . ei vw" — . .

- [ili } Uh i t+! in ‘ t i | bs . Mie w j ety tee i

} - ;

, plan cot ome directed the sotliary ate thal je ie. ot ral

* . - . {12a)

a. a

‘ . ° ’

STATE v. WOODSON N.C. 619

Cire as 21581 24 68)

We have consitered the entire re vd in It is not an easy question for l am per-

this caec, well ac cach Ate ; at- sor ally Op yr vse ! to capital puri lire nt

sign nf of or with core ¢ ma Maminmmyp u, even for murder, is pet in

rate % th tt i t fr id 4] my) viev wis pubhe po! 5 ] do net te.

« ' i ; p4 j |

which defendants apy 3 and m ul

below we find

No Prror

EXUM, Justice (concurring)

This is the first ease, since my joining

Court, in wl we have consales

ayy. e-at . ? thy al th sente: pu

to Chepter 2%), Wes mn]

trial liewe, however, that its infliction upon on

convicted of premeditated murder or nm

der committed in the course of anot!»

. =

felony which itself as inte

to humen

rently dat rere

ife, such as we have here, contra

My belief that enpital punishment is un

i if public poticy os be

promnarity on the proposition that povern

i of the United Stntes

620 N.C.

in degree but in kind. It is unique in its

rejection of rehabilitation of the convict

‘as a basic purpose of criminal justice.

. And it is unique, finally, in its absolute

.. renunciation of all that is embodied in

our concept of bt. nity.” (Emphasis

supplicd.)

Neither do | believe that capital punish-

_ ment, even when regularly utilized, deters

generally the commission of capita! crimes.

Practically all of the statistical data availa-

ble on the subject has been collected and

much of it thoroughly analyzed in Bowers,

Executions in America (D. C. Heath and

Company, 1974) (hereinafter, Rowers). The

author concludes: . .« + Ss

- “To assess the deterrent effects of capital

-*. punishment, investigators have conducted

* gtudies of various descriptions—examin-

ing and comparing nations and jurisdic-

~ tions within nations for the effects of

* °. gbolition and other changes in the status

. of the death penalty, Tor the effects of

fluctuations in and the cessation of exe-

~ eutions, and for the impact of the death

» .sentence and the exccution in specific

eases. Not one of these studies has

turned up evidence that the death penal-

ty is superior as a deterrent to punish-

* Ments used as alternatives. The data

presented in Chapters 5 and 6 specifically

restrict claims for the detcrrent power of

“.. the death penalty by showing that the

experimental abolition of capital punish-

ment, the ralionwide moratorium on exe-

. eutions, and the move from mandatory to

* diserctionary capital punishment, did not

~ encourage or contribute to a rise in erimi-

nal homicide.

“The failure of the death penalty to dis

. play any unique deterrent effect has been

attributed to the fact that it had come to

be imposed almost exclusively for irra-

tional actions and that even for such con-

. duct it was unlikely to be imposed. Mur-

‘der and rape are typically committed in

aware, drunkenness, and/or stupefying

passion. The offender acts in madness or

out of hatred, because of insult or betray-

_al, without expecting to Le caught, or not

[14a]

215 SOUTH EASTERN REPORTER, 24 SERIES avi

caring if he is. While the objective like!)-

hood of being put to death for his crime )

quite low, it is doubtful that the capita!

offender is subjectively aware of his

chances of escaping execution. Thus,

even under the mandatory death penalty,

which presumably contributes to the im-

pression that offenders are certain to be

executed if caught, potential offenders

appear equally oblivious to such impend-

ing doom.” Id. at 193-94.

Bowers has carefully compared homicide

rates for an equal period of time before and

after 1967 (the year of the last execution in

the United States) in death penalty and

contiguous abolition states. These cumpari-

sons make a convincing case that neither

utilization of capita! punishment mandiatori-

ly or in a discretionary way nor its de jure

nor de facto abulition has had any apprecia-

ble effect on the rate of commission of

capital crimes. See also Furman v. Geor-

gia, supra at 348-Si, 92 S.Ct. 2726, 33

L.Ed.2d at 412-415 (Mr. Justice Marshal

concurring). ‘ ;

It must be conceded that the raw dzta

available has shortcomings which reduce its

probative value. “Onc is that there are no .

accurate figures for capital murders; there

are only figures on homicides and they, of

course, include non-capital killings.” Jd. «t

349-50, 92 S.Ct. at 2783, 33 L.Ed2d at

412-13 (Mr. Justice Marshall concurriny).

The main shortcoming of the statistical ir-

guments is: ,

“Capital punishment has obvious!)

failed as a deterrent when a murder is

cominitted. We can number its failures.

But we cannot number its successes. No

one can ever know how many people have

refrained from murder twceause of the

’ fear of being hanged.’ This is the nub of

the problem . . ..” Id. at 317, 92

S.Ct. at 2781, 33 LEd.2d at 41) (Mr.

Justice Marshall concurring).

Deterrence, however, is not the only pur-

pose of sanctions against criminal activity

Ketribution has long been recognized by

‘

many as another valid purpose. Chief Jus-

tice Burret pointed out im his dissent in

Furman, “The Court has con istently as-

sumed that retribution is 4 legatimate di-

mension of the pun Ament of erie 3.” 408

US. at 394, 92 S.Ct. at 2806, 93 L.Fa.2d at

439. 1, personally, do not believe that retri-

bution has an) legitimate place in our crim-

My view is that the

goals of sanctions against criminal conduct

jnal justice system.

should be general deterrence to others, spe-

cial deterrence to the offender himself, res-

titulion to the victim, and rehabilitation of

the offender. Punishment in the sense of

retribution, vengeance, OF retaliation is al-

ways in the long run self-defeating.

“But the punitive attitude persists. And

just so long: #5 the spirit of vengeance has

the slightest vestige of respectability, $0

Jong 2s it pervades the public mind and

. infuses its evil wpon the statute books of

the law, we will make no headway to

ward the contro! of erime. We cannot

assess the most appropriate and effective

‘penalty 8° long as we seck to inflict retal-

iatory pain.” Menninger, The Crime of

Punishment 918 (The Viking Press 1965).

Many disagree. “[it}esponsible legal think-

ers of widely varying persuasions have de-

“pated the cociolojica! and philosophical #s-

peets of the retribution question for penera-

tions, neither side being able to convince

the other.” Furman ¥. Georgia, supra at

994-95, 92 S.Ct. at 9305, 33 L.Ed at 439

(Chief Justice Buryer dissenting) While

the extent of retritulion available is ¢er-

‘tainly limited by the Crucl and Unususl

Punishment Clauses in our state and feder-

al constitutions, in the case now under con-

sideration exaction of the death penalty in

a purely retributive SENS’, while offensive

to me personally, gducs not comtravenc these

constitutional prot jbilions.

The point is that as 4 judge I cannot

gulstitute my personal will for that of the

Legisiatere merely because } disagree with

{isa}

STATE ¥. WoONSON

Cre 0s 215 S120 607

N.C. 621

its chosen policy. The utility of capital

punishment as 4 sanction against first de-

gree murder in our scheme of criminal jus-

tice is one Upon which reasonable, learned,

humane, and conscicntious persons differ.

These differences are nowhere better docu-

mented than in the nine separate opinions

filed by the Chief Justice- and Associate

Justices of the United States Supreme

Court in Furman and the various authori-

ties relied on in each of the opinions.

Whether the effects of capital punishment

in a murder case arc, indeed, brutalizing oF

_ salutary, whether the data available tend-

ing to negate the deterrent effect of capital

punishment really outweighs arguments in

its favor resting on “logical hypotheses de-

yoid of evidentiary support, but persuasive

nonetheless,” Furman Vv. Georgia, suprit at

347, 92 S.Ct. at 9781, 33 L.Ed.2d at 41) (or.

Justice Marshall coneurring), and whether

in a murder case it should be permitted for

purposes of pure retribution are questions

ypon which honest persons conscientiously

and deeply differ. This aspect of the ques-

tion strongly militates in favor of judicial

deference to the legislative will in the case

now before vs.

1 fervently hope that someday North Car-

olina will join her ten sister states who have

leristatively totali. abolished capital pun

ishment and some forty-five civilized coun-

tries throughout the world who likewise

have abolished it (except, in some instances,

in time of martial law and “for certain

extraordinary civil offenses’) Bowers at 6,

178. The Constitutions of the United

States and North Carolina in my view do

not require her to do so in cases such as this

one.

.*- oom

—-"

Appendi x B:

Pp.

26-140, Bricf for pet

North Carolina, No.

itioncer,

73-7031.

Fowler v.

intractable judgment is to be made in numerous covert

ways which conceal while increasing the irregularity,

irrationality, and irresponsibility of the life-or-<death

decisions. (See Part II, pp. 26-101 infra.) Moreover, the

historical lesson learned through decades of overtly

discretionary capital sentencing -— that the death

penalty is no longer “widely accepted,’’®? but is instead

resoundingly repudiated by the institutions of criminal

justice that have actually borne the terrible respon-

sibility for choosing between life and death as the

disposition for even the most heinous of offenders (see

Part Ill, pp. 102-140 infra) — is to be ignored, as

though it never happened. With all respect, this result is

heedless of Furman, heedless of reality and history, and

forbidden by the Eighth and Fourteenth Amendments.

Il.

THE ARBITRARY INFLICTION OF DEATH

Although the prevailing Furman opinions differ

somewhat in regard to the questions left unanswered by

the square holding of that case, each opinion condemns

at least any system of capital punishment in which

some persons are chosen to live and others identically

situated are consigned to die by irregular and erratic

2Tyop v. Dulles, 356 U.S. 86, 99 (1958) (plurality opinion of

Chief Justice Warren).

selective processes.** Furman thus accords contem-

porary recognition to a central historic concern of the

The concurring opinions of Mr. Justice Brennan (408 U.S. at

257-306) and Mr. Justice Marshall (408 U.S. at 314-373) shared

the view that the death penalty is unconstitutional per se

regardless of the presence or absence of selectivity in the

procedural system through which it is administered.

Mr. Justice Douglas did not reach the question “[{w]hether a

mandatory death penalty would ... be constitutional” if it were

in fact applied wholly non-selectively, 408 US. at 257, but held

the death sentences under review in Furman and companion

cases incompatible “with the idea of equal protection of the laws

that is iniplicit in the ban on ‘cruel and unusual’ punishments,”

ibid., because they were “imposed pursuant to a procedure that

gives room for the play of ... prejudices,” 408 U.S. at 242, and

allows .the application of capital punishment “selectively to

minorities whose numbers are few, who are outcasts of society,

and who are unpopular, but whom society is willing to see suffer

though it would not countenance general application of the

same penalty across the board.” 408 U.S. at 245.

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 US.

at 306, since he forad that the death sentences under review

were retumed “un. ~ legal systems that permit this unique

penalty to be ... w..tonly and ... freakishly imposed,” 408

US. at 310, and therefore violated the Eighth and Fourteenth

Amendments. “[O]f all of the people convicted of rapes and

murders ..., many just as reprehensible as these, the petitioners

are among a capriciously selected random handful upon whom

the sentence of death has in fact been imposed.” 408 US. at

309-310 (footnote ommitted).

Mr. Justice White declined to consider the question whether

“the death penalty is unconstitutional per se,” 408 US. at 311,

and held only that capital punishment was unconstitutional when

it “is exacted with great infrequency even for the most atrocious

crimes and ... [when] there is no meaningful basis for

distinguishing the few cases in which it is imposed from the 927

many cases in which it is not.” 408 US. at 313.

Eighth Amendment: “that government by the people,

instituted by the Constitution, . not imitate the

conduct of arbitrary monarchs.” Weems v. United

States, 217 U.S. 349, 376 (1910).

As this Court has recognized,** the Cruel and

Unusual Punishments Clause of the Eighth Amendment

is derived from the almost identically worded Tenth

Clause of the English Bill of Rights of 1689.°* The

preamble to the Bill of Rights declared that James Il

had endeavored to “subvert” the “laws and liberties of

this kingdom” by arbitrarily ‘assuming and exercising a

power of dispensing with and suspending of laws and

the execution of laws, without consent of parlia-

4 In re Kemmler, 136 U.S. 436, 446 (1890).

Modern historical scholarship lends support to this con-

clusion. See SCHWARTZ, THE BILL OF RIGHTS: A DOCU-

MENTARY HISTORY 41 (1971). The “Declaration of Rights,”

which William and Mary signed on February 13, 1689, before

their coronation, was reenacted with minor additions as a statute

(the “Bill of Rights”) by Parliament later that year. 1 W. & M.,

sess. 2, ch. 2 (1689), VI STAT. OF THE REALM 142-145. See

also 5 PARL. HIST. ENG. 483-490 (1688-1704) (Cobbett ed.

1809); BROWNING, ENGLISH HISTORIC DOCUMENTS

1660-1714 122-128 (1953); BAXTER, BASIC DOCUMENTS OF

ENGLISH HISTORY 159 (1968). Clause 10 provides: “That

excessive bail ought not to be required, nor excessive fines

imposed; nor cruel and unusual punishments inflicted.” 5 PARL.

HIST. ENG. 485 (1688-1704) (Cobbett ed. 1809). The Eighth

Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments

inflicted.”

ment.”°* The first two Clauses accordingly declared

such conduct on the part of the King and the royal

%Of particular concern to Parliament was James II’s claim

that the royal prerogative authorized him to ignore the statutes

prescribing religious qualifications for the holding of public

office, 4 THOMSON, A CONSTITUTIONAL HISTORY OF

ENGLAND, 1642-1801 87, 89 (1938), and to imprison subjects

when no statute or common lew principle authorized such a

punishment, 2 MACAULAY, THE HISTORY OF ENGLAND

FROM THE ACCESSION OF JAMES II 515 (1850). This royal

claim was fecilitated by the 1686 decision of the King’s Bench in

Godden v. Hales, 2 Show. K.B. 475, 89 Eng. Rep. 1050, 1!

Howell St. Tr. 1197 (Trinity Term, 2 Jac. 2) (1686), a collusive

action arranged by James II before handpicked judges to secure

judicial approval of the royal power arbitrarily to disregard the

enactments of Parliament. KENYON, THE STUART CONSTITU-

TION, 1603-1688 420-426 (1966). The Court ruled: “That the

laws of England are the King’s laws, That therefore it is an

inseparable prerogative in the Kings of England to dispense with

penal laws in particular cases and upon particular reasons, That of

those reasons and those necessities the King himself is the sole

judge.” 11 Howell St. Tr. at 1199. This decision confirmed the

Parliamentary belief “that the Crown must be limited, controlled,

and [made] inferior to the laws of the land,” HUGHES &

FRIES, CROWN AND PARLIAMENT IN TUDOR-—STUART

ENGLAND 291 (1959); the realization by both Whigs and Tories

“of the inadequacy of the laws of Parliament to withstand the

attacks of the King was the beginning of their rejection of James

and the real commencement of the revolution of 1688.” /d. at

294.

judges illegal,?” and Clause 10 prohibited the infliction

of “cruel and unusual punishments.” The legislative

history of this provision makes clear that it was

intended to prohibit the infliction of harsh punishments

that were arbitrarily imposed.** am |

While the Bill of Rights was pending in Parliament,

an Anglican clergyman, Titus Oates, appealed his 1685

perjury conviction to the House of Lords. Oates had

37 These two Clauses flatly overruled Godden v. Hales, supra

note 36, declaring:

“1. That the pretended power of suspending of laws, or the

execution of laws, by regal authority, without consent of

parliament, is illegal. 2. That the pretended power of

dispensing with laws, or the execution of laws, by regal

authority, as it hath been assumed and exercised of late, is

illegal.”

5 PARL. HIST. ENG. 485 (1688-1704) (Cobbett ed. 1809). A

significant new phrase was also added to the Coronation Oath:

henceforth, the ascending monarch was to ree to em

rding to “the statutes in Parliament agreed upon, an

ioe a customs of the same.” WILLIAMS, THE EIGHT-

EENTH—CENTURY CONSTITUTION, 1688-1815: DOCU-

MENTS AND COMMENTARY 3, 37 (1960). “The oath in its

previous form had pledged the King to ‘grant and keep’ the laws

and customs ‘granted’ by his predecessor. If the laws were merely

the King’s grants, then it might be contended that he could

revoke them. Henceforth, it was plain that he was bound by the

laws.” 4 THOMSON, A CONSTITUTIONAL HISTORY OF

ENGLAND, 1642-1801 176-177 (1938).

38 Granucci, “Nor Cruel and Unusual Punishments Inflicted:”

The Original Meaning, 57 CALIF. L. REV. 839, 859 (1969);

Wheeler, Toward a Theory of Limited Punishment: An

Examination of the Eighth Amendment, 24 STAN. L. REV. 838,

844 (1972).

been convicted in the King’s Bench of giving false

testimony during the “Popish Plot” trials of 1678-1679,

and had been sentenced to be defrocked, to serve a

term of life imprisonment, to pay a large fine, to be

twice severely whipped, and to be pilloried four times a

year.*® This punishment was harsh.‘ discriminatory and

arbitrary in the extreme — a manifest attempt to avenge

Oates’ anti-Catholic intrigues against James II (who had

then been Duke of York) by the imposition of

punishments that were both unauthorized by statute

and outside the jurisdiction of the sentencing court.*!

For discussions of this phase of the Oates case, see CLARK,

THE LATER STUARTS, 1660-1714 88-92 (1934); BROWNING,

ENGLISH HISTORICAL DOCUMENTS, 1660-1714 12-15

(1953); 4 THOMSON, A CONSTITUTIONAL HISTORY OF

ENGLAND, 1642-1801 61-65 (1938); LANDON, THE TRI-

UMPH OF THE LAWYERS: THEIR ROLE IN ENGLISH

POLITICS, 1678-1689 181-183 (1969).

“The lengthy flogging prescribed for Oates was apparently

intended to be fatal: “the court, having no power to hang him,

plainly intended that he should be flogged to death.” 4

THOMSON, A CONSTITUTIONAL HISTORY OF ENGLAND

1642-1801 142 (1938). This was the contemporary under-

standing of the court's intent. In 1689, the House of Commons

resolved “[t] hat it was illegal, cruel, and of dangerous example

that a freeman [Oates] should be whipped in such a barbarous

manner, as, in all probability, would determine in death.” 5

PARL. HIST. ENG. 387 (1688-1704) (Cobbett ed. 1809).

“"Imprisonment for life could not at that time be imposed for

perjury (a misdemeanor), 4 THOMSON, A CONSTITUTIONAL

HISTORY OF ENGLAND, 1660-1801 142 (1938); and “fo] nly

a spiritual court could degrade a priest,” ibid. According to

Macaulay, “that the sentence [imposed on Oates] was illegal was

a proposition that admitted of no dispute.” 3 MACAULAY, THE

HISTORY OF ENGLAND FROM THE ACCESSION OF JAMES

Il 308 (1850).

Oates’ conviction and sentence were affirmed in the

House of Lords, with thirteen of the Members

dissenting strongly on the grounds that these punish-

ments were “cruel, barbarous, and illegal’ and “‘con-

trary to the Declaration [of Rights] of the 12th of

Feb. last... whereby it doth appear, that excessive Bail

ought not to be required, nor excessive Fines imposed,

nor cruel nor unusual punishments inflicted.’’*? Oates

425 PARL. HIST. ENG. 291-292 (1688-1704) (Cobbett ed.

1809). This dissent declared:

“1. ‘For that the King’s-bench, being a temporal court,

made it part of the Judgment, That Titus Oates, being a

clerk, should, for his perjuries, be divested of his canonical

and priestly habit, and to continue divested all his life:

which is a matter wholly out of their power, belonging to

the ecclesiastical courts only. 2. For that the said

Judgments are barbarous, inhuman, and unchristian. And

there is no precedents [sic] to warrant the punishments of

whipping, and committing to prison for life, for the crime

of perjury; which yet were but part of the punishments

inflicted upon him . 4. For that this will be an

encouragement, and an allowance, for giving the like cruel,

barbarous, and illegal Judgments hereafter, unless this

Judgment be reversed. 5. Because sir John Holt, sir Henry

Pollexfen, the two Chief Justices, and sir Robert Atkins

chief baron, with six Judges more (being all that were then

present), for these and many other Reasons, did, before us,

solemnly deliver their Opinions; and unanimously declare,

That the said Judgments were contrary to law, and ancient

practice; and therefore erroneous, and ought to be reversed.

6. Because it was contrary to the Declaration of the 12th

of Feb. last, which was ordered by the lords spiritual and

temporal, and commons, then assembled; and by their

Declaration ingrossed in parchment, and inrolled among the

Records of parliament, and recorded in Chancery; whereby

it doth appear, that excessive Bail ought not to be

required, nor excessive Fines imposed, nor cruel and

unusual punishments inflicted.’ ”

then sought relief in the House of Commons, where his

cause was strongly taken up by militant Protestants,

who secured passage of a resolution “That Bills be

brought in to reverse the Judgments against Mr.

Oates... as cruel and illegal."*? Sir William Williams

declared during the debate on this bill: “let any man

give us a precedent to square with that Judgment. It

makes the Judges arbitrary, and hereafter the Judges

may. be most injurious in punishing.”“* When a

deadlock occurred with the House of Lords over a

collateral matter,** one of the floor managers from the

Lords (whose bill gave Oates more limited relief than

the Commons bill) admitted that the Oates judgment

was illegal but declared that Oates deserved punishment

for his libels. A Member of Commons responded:

** *Be it so. This bill gives him no indemnity. We

are quite willing that, if he is guilty, he shall be

punished. But for him, and for all Englishmen, we

demand that punishments shall be regulated by

5 PARL. HIST. ENG. 296 (1688-1704\Cobbett ed. 1809).

“Id. at 294.

“The Commons had also declared that the perjury judgements

against Oates were “corrupt.” 5 PARL. HIST. ENG. 392

(1688-1704) (Cobbett ed. 1809), and it was this j

q \ allegati

the Lords would not agree to. /d. at 394. —

law, and not by the arbitrary discretion of any

tribunal.’ ***

By the time of the framing of the American Bill of

Rights, eight States had adopted prohibitions of “cruel

and unusual punishments” that were modeled upon

43 MACAULAY, THE HISTORY OF ENGLAND FROM

THE ACCESSION OF JAMES II 310 (1850). The floor managers

of the Commons bill reported back to the House of Commons

on their difficulties in securing an acceptable compromise bill

from the House of Lords:

“the commons had hoped, that, after the Declaration [of

Rights] presented to their majesties upon their accepting

the crown (wherein their lordships had joined with the

commons in complaining of the crue! and illegal punish-

ments of the last reign; and in asserting it to be the ancient

right of the people of England, that they should not be

subjected to cruel and unusual punishments; and that no

judgments to the prejudice of the people in that kind

ought in any-wise to be drawn into consequence, or

example); and after this Declaration had been so lately

renewed in that part of the Bill of Rights which the lords

had agreed to; they should not have seen Judgments of this

nature affirmed, and been put under a necessity of sencing

up a Bill for reversing them, since those Declarations will

not only be useless, but of pernicious consequence to the

people, if, so soon after, such Judgments as these stand

affirmed, and be not taken to be cruel and illegal within

the meaning of those Declarations—That the commons had

a particular regard to these Judgments, amongst others,

when that Declaration was first made; and must insist upon

it, that they are erroneous, cruel, illegal, and of ill example

to future ages.... That it was surely of ill example for a

temporal court to give judgment, ‘That a clerk be divested

of his canonical habits; and continue so divested during his

life.” That it was of ill example, and illegal, that a

Judgment of perpetual imprisonment should be given in a

case, where there is no express law to warrant ty

5 PARL. HIST. ENG. 386-387 (1688-1704) (Cobbett ed. 1809).

Oates was pardoned by King William before the differences

34 between Commons and Lords were finally resolved. /d. at 399.

Clause 10 of the English Bill of Rights,*” and the

federal government had inserted a similar provision into

the Northwest Ordinance of 1787.4 Because earl

American legal history is so obscure, it is not saesitie

to know exactly what the draftsmen of these provisions

intended.*® However, whatever else such clauses were

47u7:..:_:

ny! amine of 1776, Declaration of Rights, §9 (7

pe - ae AND STATE CONSTITUTIONS 3813

ame rod a hy page THE BIRTH . OF THE BILL OF

inte of Fen. 6 y i —— ); Delaware Declaration of

Carolina Constitution of 1776, §10 (s ee. : ae

Maryland Constitution of 1776, § 22 (3 THORPE ee aan

Massachusetts Constitution of 1780, art. 26 (3 THORPE os =

:. Bann Ne’ Hampshire Constitution of 1784, $33 (4

. a “dom «t 2457); Pennsylvania Constitution of 1790, art.

I -.+ Mor cruel punishments inflicted”) (5 THORPE

spre, at 3101); South Carolina Constitution of 1790, art. 9 84

: ae 4 on punishments inflicted”) (6 THORPE, supra, at

— ' : oe Constitution of 1777, ch. 2, §35 (6 THORPE

print 1): To deter more effectually from the

pear : crimes, by continued visible punishment of long

: » and to make sanguinary punishments less necessary ;

Ouses ought to be provided for punishing, by hard labor, th

who shall be convicted of crimes ....” wiliain

48 .

, sp nee of 1 787, The Northwest Territorial Government

* . Il (Confederation Congress, July 13, 1787): “All fines shall

' moderate, and no cruel or unusual punishments shall be

inflicted.” See 1 U.S.C. xxxvii-xxxviii (1964).

“Legal development is probabl

' elopr y the least known aspect of

pone ed colonial history. Judicial opinions were not eto in

a es, no year books were issued, and the printed materials

or legal and judicial history have been so scanty as to preclude

the more cautious historians from dealing with this important

side of colonial life.” MORISON (ed.), RECORDS OF THE

SUFFOLK COUNTY ,

(1933). COURT, 1671-1680 unpaginated preface

10b

intended to prohibit, it is unlikely that they were not

intended to guard against the arbitrary infliction of

harsh punishments. For there is evidence that the

colonists were concerned with this issue. In 1635,

Governor John Winthrop described the attempts of the

Massachusetts Bay Colonists to draft a comprehensive

criminal code in order to limit the discretion of the

magistrates: “The deputies having conceived great

danger to our state in regard that our magistrates, for

want of positive laws, in many cases, might proceed

according to their discretions, it was 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 and the general court,

should be received for fundamental laws.”*® The

writings of Blackstone, whose influence on the

development of colonial American law was enormous,*'

had echoed the 1689 Parliamentary debates concerning

the Oates case by stressing the fact that English law did

not allow the arbitrary infliction of punishment:

“it is moreover one of the glories of our English

law, that the nature, though not always the quality

or degree, of punishment is ascertained for every

offence: and that it is not left in the breast of any

judge, nor even of a jury, to alter that judgment,

S WHITMORE, COLONIAL LAWS OF MASSACHUSETTS

1630-1686 5 (1889).

S'\Granucci, “Nor -Cruel and Unusual Punishments Inflicted:”’

The Original Meaning, 57 CALIF. L. REV. 839, 862 (1969).

Edmund Burke announced to Parliament in 1775 that almost as

many copies of Blackstone’s Commentaries had been sold in the

American colonies as in Great Britain. SUTHERLAND, THE

LAW AT HARVARD 25 (1967).

1lb

which the law has beforehand ordained

subject alike, without respect of aang Fong |

judgments were to be the private opinions of the

judge, men would then be slave to their

magistrates; and would live in society, without

knowing exactly the conditions and obligations

which it lays them under....[{W]here an estab-

lished penalty is annexed to crimes, the criminal

may read their certain consequence in that law

which Ought to be the unvaried rule, as it is the

inflexible judge of his actions.’’S?

Finally, the American statesmen who framed the state

and federal prohibitions on cruel and unusual punish-

ments in the late Eighteenth Century typically believed

that their rebellion against Britain had been justified in

order to preserve their inherited English civil rights and

political freedoms:** “from a purely legal interpreta-

tion, the American Revolution itself, as the Americans

saw it, was largely the result of England’s disregard of

the common-law rights of the Colonists.” It therefore

appears unlikely that they would consciously have

“See BAILYN. THE IDEOLOGICAL

, ORIGINS OF THE

AMERICAN REVOLUTION 1-54 (1967).

wa ORIGINS OF THE FIFTH AMENDMENT 337

12b

rejected or limited any of their traditional liberties,**

including the right against arbitrary infliction of harsh

punishments. George Mason, the author of both the

Virginia Declaration of Rights and the amendments

proposed to Congress by the Virginia ratifying conven-

tion.®® stressed the necessity of limiting all forms of

American governmental authority by such guarantees of

individual liberty:

“In the declaration of rights which that country

{Great Britain] has established, the truth is, they

SSThe legislative history of adoption of the Eighth Amend-

ment is sparse and not particularly illuminating as to the

purposes of the Framers. See 2 ELLIOT’S DEBATES 111 (2d

ed. 1863); 3 ELLIOT’S DEBATES 447-448, 451, 452 (2d ed.

1863); 1 ANNALS OF CONGRESS 754 (Ist Cong., Ist Sess.

1789). There is evidence, however, that in certain ratifying

conventions, opponents of the Constitution feared that, without

a Bill of Rights, Congress would be free to devise whatever

criminal punishments it wished and that tortures might be

instituted. Patrick Henry, for example, declared to the Virginia

Convention: “when we come to punishments, no latitude ought

to be left, nor dependence put on the virtue of representatives

[in Congress] .... Are you not, therefore, now calling on those

gentlemen who are to compose Congress, to prescribe trials and

define punishments without this control [a constitutional

prohibition on “cruel and unusual punishments”’]?. . . . You let

them loose; you do more — you depart from the genius of your

country.” 3 ELLIOT’S DEBATES 447-448 (2d ed. 1863). There

is thus some evidence that the Framers were concerned to limit

the discretion of Jegislators to devise punishments, and there is

no indication whatsoever in any of the debates that they would

have approved an arbitrary freedom on the part of magistrates to

impose criminal punishments.

S6See | ROWLAND, LIFE OF GEORGE MASON 234-250

(1892).

13b

have gone no farther than to raise a barrier against

the power of the Crown; the power of the

legislature is left altogether indefinite... .

But although ...it may not be thought necessary

to provide limits for the legislative power in that

country, yet a different opinion prevails in the

United States. The people of many states have

thought it necessary to raise barriers against power

in all forms and departments of Government... .”

1 ANNALS OF CONGRESS 436 (Ist Cong., Ist Sess.

1789).

The arbitrary infliction of death which this Court

condemned in Furman and companion cases arose, of

course, from various procedures*’ whereby juries (or

judges) were given the option to sentence convicted

capital offenders to life (or term) imprisonment or

death.** But — particularly in the light of McGautha vy.

California, 402 U.S. 183 (1971) — it is impossible to

read Furman as prohibiting only the explicit statutory

annunciation of jury discretion to impose alternative

sentences of imprisonment or capital punishment.

Surely Furman and the Eighth Amendment forbid any

arbitrarily selective imposition of the “unique penalty”

of death,*® whatever the source or mechanism of the

arbitrariness. See Commonwealth v. A Juvenile, 1973

‘’For a description of some of these variations, see State v.

Rhodes, Mont. _.__, 524 P.2d 1095, 1099 (1974).

58See McGautha v. California, 402 US. 183, 197-203 (1971).

59Furman v. Georgia, supra, 408 US. at 310 (concurring

opinion of Mr. Justice Stewart).

l4b

Mass. Adv. Sh. 1199, 300 N.E.2d 434 (1973).%° The

particular method of selecting some men to die while

others in like cases live with “no meaningful basis for

distinguishing” among them*' cannot be thought

constitutionally decisive. For the Federal Constitution is

not ordinarily concerned with the forms of state

procedure, but with their result. See, e.g., Chambers vy.

Mississippi, 410 U.S. 284, 302-303 (1973); Mempa vy.

Rhay, 389 U.S. 128, 135-137 (1967); Jackson Y.

Denno, 378 U.S. 368, 391 n.19 (1964), It “‘nullifies

sophisticated as well as simple-minded modes” of

producing unconstitutional consequences. Lane v. Wil-

son, 307 U.S. 268, 275 (1939). Federal constitutional

guarantees cannot — as Justice Holmes wrote in another

context — “be evaded by attempting a distinction” of

form without a difference in substance. Davis Y.

Wechsler, 263 U.S. 22, 24 (1923).

1, Commonwalth v. A Juvenile, the Massachusetts Supreme

Judicial Court held a “mandatory” death penalty statute

unconstitutional under the Eighth Amendment where death was

the “mandatory” punishment for a specified crime but

discretionary mechanisms existed by which a trial court could

avoid subjecting a particular defendant to that “mandatory”

sentence. The case involved a juvenile who had been condemned

under a statute which made death the “mandatory” punishment

for rape-murder. The Court held that when a juvenile could be

adjudicated either as an adult for rape-murder (in which case, the

death sentence was mandatory, see Mass. Gen. Laws Ann. c.

265 §2) or as a juvenile (in which case no death sentence could

be imposed), a death sentence imposed pursuant to the adult

“mandatory” statute could not be affirmed, since Furman

invalidated “discretionary imposition of the death sentence.” 300

N.E.2d at 442 (emphasis in original).

61Furman y. Georgia, supra, 408 U.S. at 313 (concurring

opinion of Mr. Justice White).

156

To be sure, Waddeil’s annulment of the North

Carolina “recommendation” statute ostensibly made

death the exclusive punishment for first degree murder,

rape, first degree burglary and arson. But the

implementation of the death sentence for this broad

range of offenses inevitably required the exercise of vast

and uncontrolled selective discretion by district attor-

neys, trial judges, juries and the Governor in choosing

which defendants would live and which would die in

cases where the death penalty was potentially applicable

after Waddell. Language requires that the several

practices through which unrestrained and arbitrary

discretion infects the administration of the death

penalty under Waddell be described separately, as we

shall do in the following subsections of this brief. But

the practices plainly operate cumulatively to produce

the kind of extreme uncertainty and unpredictability in

the infliction of the death penalty that violates

Furman’s ban.

“There is... danger in treating any one stage [of

the criminal justice process] as if it were a

self-contained system rather than merely one

decision in an ongoing process of interrelated

decisions and consequences of decisions. An

assumption, explicit or implied, that adjudication

is in fact a quasi-automatic, nondiscretionary

process, turning solely on matters of sufficient

evidence, is a gross oversimplification ... .”

NEWMAN, CONVICTION: THE DETERMINATION

OF GUILT OR INNOCENCE WITHOUT TRIAL 150

(1966). Thus as demonstrated by Professor Charles

82See also Rosett, Discretion, Severity and Legality in

Criminal Justice, 46 SO. CALIF. L. REV. 12, 14-15 (1972).

16b

Black in his recent trenchant analysis,®? the result of

63BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY

OF CAPRICE AND MISTAKE (1974). Professor ®lack points

out the numerous discretionary decisions made at every stage of

the criminal justice process, with life and death consequences,

and emphasizes:

“Regarding each of these choices, through all the range,

one of two things, or perhaps both, may be true.

First, the choice made may be a mistaken one. The

defendant may not have committed the act of which he is

found guilty; the factors which ought properly to induce a

prosecutor to accept a plea to a lesser offense may have

been present, though he refused to do so, the defendant

may have been ‘insane’ in the way the law requires for

exculpation, though the jury found that he was not. And

so on.

Secondly, there may either be no legal standards governing

the making of the choice, or the standards verbally set up

by the legal system for the making of the choice may be so

vague, at least in part of their range, as to be only apparent

standards, in truth furnishing no direction and leaving the

actual choice quite arbitrary.

These two possibilities have an interesting (and, in the

circumstances, tragic) relationship. The concept of mistake

fades out as the standard grows more and more vague and

unintelligible. There is no vagueness problem about the

question ‘Did Y hit Z on the head with a piece of pipe?’ It

is, for just that reason, easily possible to conceive of what

it means to be ‘mistaken’ in answering this question; one is

‘mistaken’ if one answers it ‘yes’ when in fact Y did not

hit Z with the pipe. It is even fairly clear what it means to

be ‘mistaken’ in answering the question ‘Did Y intend to

kill Z?’ Conscious intents are facts; the difference here

really is that, for obvious reasons, mistake is more likely in

the second case than in the first, for it is hard or

impossible to be confident of coming down on the right

side of a question about past psychological fact.

(continued)

17b

numerous interrelated arbitrary processes in the admin-

istration of the death penalty in North Carolina is

exactly the result condemned by Furman: death

sentences which are “wantonly and... freakishly im-

posed.” Furman vy. Georgia, supra, 408 U.S. at 310

(concurring opinion of Mr. Justice Stewart).

And this means not merely that a few men die for

ties nO more atrocious than the crimes of many who

are spared. It means also that society’s most extreme

and irremediable punishment is likely to be practiced

principally upon the outcast of society. Discrimination

is inseparable from arbitrariness wherever social atti-

(footnote continued from proceeding page)

It is very different when one comes to the question, ‘Was

the action of which the defendant was found guilty

performed in such a manner as to evidence an ‘abandoned

and malignant heart’?” (This phrase figures importantly in

homicide law.) This question has the same grammatical

form as a clearcut factual question; actually, through a

considerable part of its range, it is not at all clear what it

means. It sets up, in this range, not a standard but a

pseudo-standard. One cannot, strictly speaking, be mistaken

in answering it, at least within a considerable range

because to be mistaken is to be on the wrong side of a

line, and there is no real line here. But that, in tum, means

that the ‘test’ may often be no test at all, but merely an

invitation to arbitrariness and passion, or even to the

influence of dark unconscious factors.

‘Mistake’ and ‘arbitrariness’ therefore are reciprocally

related.”

Id. at 19-21 (emphasis in original).

“See, e.g, LAWES, TWENTY THOUSAND YEARS IN SING

SING 302, 307-310 (1932); DUFFY & HIRSHBERG, 88 MEN

AND 2 WOMEN 254-255 (1962); De Ment, A Plea for the

Condemned, 29 ALA. LAWYER 440, 440-441 n.2 (1968)

(quoting Commissioner A. Frank Lee, of the Alabama Board of

Corrections).

18b

tudes make men or groups unequal or unpopular. That

had not ceased to be the case in England three

centuries after Titus Oates,°* and it assuredly has not

ceased in this country where “(t]hroughout our history

differences in race and color have defined easily

indentifiable groups which have at times required the

aid of the courts in securing equal treatment under the

laws.” “It is the poor, the illiterate, the underpriv-

ileged, the member of the minority group — is

usually sacrificed by society’s lack of concern. To

believe that this discrimination can be ended or

controlled by the annulment of forthright jury

discretion in capital sentencing in North Carolina blinks

reality. For,

“discretion in the imposition of the death penalty

will continue to be exercised in the prosecuting

attorney’s decision concerning the wording of the

charge; the grand jury’s decision concerning the

6SPIERREPOINT, EXECUTIONER: PIERREPOINT 2i!

(1974):

“As long as reprieves for the death sentence existed, the

reason for a reprieve was always fundamentally political: an

execution here would incite too much sympathy for the

victim and must be respited; an execution there will show

that the Home Secretary means business. The public were

allowed to blow like the wind for one popular reprieve of a

favourite from Hampstead, and stay dead calm about an

unattractive strangling in Ashton-under-Lyne precisely

because the same basic inconsistency was being operated

for the policy reprieves. The trouble with the death

sentence has always been that nobody wanted it for

everybody, but everybody differed about who should get

off.”

6 prernandez v. Texas, 347 U.S. 475, 478 (1954).

67D iSalle, Trends in the Abolition of Capital Punishment, 1 U.

TOLEDO L. REV. 1, 12-13 (1969). See also text and notes at

44 notes 226-227, infra.

19b

allegations of the indictment; the jury’s findings

concerning the existence of defenses, [and]

elements of the crime...; and the governor’s

decision whether to commute the death sentence if

one results. Since discretion will not be substan-

tially restricted under the new [procedure] ...,

but merely shifted to other parts of the criminal

justice process, there is little reason to expect thai

disproportionate application to minorities and poor

people will not continue.’’®*

A. Prosecutorial Charging Discretion

As long ago as 1931, the Wickersham Commission

reported that “[t]}he Prosecutor [is] the real arbiter of

what laws shall be enforced and against whom... .’’®

Browning, The New Death Penalty Statutes: Perpetuating a

Costly Myth, 9 GONZAGA L. REV. 651, 661-662 (1974). See

also Note, Mandatory Death: State v. Waddell, 4 N.C. CENT. L.

J. 292, 298 (1974).

**NATIONAL COMMISSION ON LAW OBSERVANCE

AND ENFORCEMENT, REPORT ON PROSECUTION 19

(1931). See also DAVIS, DISCRETIONARY JUSTICE: A

PRELIMINARY INQUIRY 188-214 (1971); authorities collected

in note 74 infra. Cf. MOLEY, POLITICS AND CRIMINAL

PROSECUTION vii (1929):

“... | have attempted to indicate the very great

importance of the public prosecutor, a fact which is

particularly American. The sheriff and the coroner, the

grand jury, and finally the petit jury, products of a long

historical evolution, have quite faded into insignificance.

Likewise, both the examining magistrate and the trial judge

in state courts, partially through their own lack of

capacity, partly through legal limitations upon their

powers, and largely because they have no means for

knowing what they should know about the cases before

them, perform no dominant role. In the midst of the decay

and impotence of his official associates, the prosecutor rises

to a definite mastery. To a considerable extent, he is

police, prosecutor, magistrate, grand jury, petit jury, and

judge in one.”

20b

In North Carolina, the prosecuting attorney (called the

Solicitor) is charged with the duty to “prepare the trial

dockets, [and] prosecute in the name of the State all

criminal actions requiring prosecution in the superior

and district courts of his district,” N.C. Gen. Stat.

§7A-61 (1973 cum. supp.) (emphasis added). He is

thereby given broad and _ essentially antennas

authority to initiate and terminate prosecutions, State

be eath penalty case, where the conviction and

.” yn ec ge new trial ordered because of

procedural error, illustrates the Solicitor’s charging discretion

under Waddell. In State v. Spicer, 285 N.C. 274, 204 S.E.2d 641

(1974), two persons were tried and convicted for murder during

the course of an armed robbery. A third person, one Brailford,

had helped to plan the robbery and was to share in its proceeds,

but he was not charged in the murder although his testimony

“permitted the jury to make a finding that he was an accomplice

either in the robbery or the murder, or both. 204 S.E.2d at

647. The Court described Brailford’s criminal role in the

following fashion:

“the 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 he expected his cut. ...

The evidence discloses that the witness Brailford originated

the plan to rob his employer and explained the setup at

the plant.”

Ibid. The other two persons involved in the robbery, Spicer and

one Isaac Monk, were convicted of first degree murder and

sentenced to die. Spicer’s conviction has been, as indicated,

reversed on grounds permitting a retrial and a new death

sentence, while Monk’s conviction and death sentence are now

pending on appeal in the North Carolina Supreme Court. State v.

Monk. No. 13, New Hanover County, Fall Term, 1974.

2lb

v. Loesch, 237 N.C. 611, 75 S.E.2d 654, 656 (1953),”!

including not only absolute discretion whether and

what to charge,” but also absolute discretion to bring

an indicted defendant to trial upon lesser charges than

those set forth in the indictment even if the evidence

"The Court also ruled in State v. Loesch, that the Attorney

General had no supervisory jurisdiction over the several Solicitors

of the State, whose offices were established by Article III,

Section 18 of the State Constitution. “(T]he duty of the

Attorney General in so far as it extends to the solicitors of the

State is purely advisory. The Attorney General has no

constitutional authority to issue a directive to any other

constitutional officer concerning his legal duties.” 75 S.E.2d at

656.

"The grand jury provides no significant check upon

prosecutorial discretion since — except in a few extraordinary

cases — it is heavily dominated by the prosecuting attorney.

See, eg, Goldstein, The State and the Accused: Balance of

Advantage in Criminal Procedure, 69 YALE L. J. 1149, 1171

(1960), and authorities cited; Shannon, The Grand Jury, True

Tribunal of the People or Administrative Agency of the

Prosecutor? 2 NEW MEXICO L. REV. 141, 170 (1972); Note,

Private Prosecution: A Remedy for District Attorneys’ Unwar-

ranted Inaction, 65 YALE L. J. 209, 212-213 (1955). Indeed, it

is dubious that even the most conscientious grand juror, zealous

to perform the grand jury’s function of providing “‘a fair

method for instituting criminal! proceedings against persons

believed to have committed crimes,’ Costello v. United States,

350 U.S. 359, 362 (1956) (as quoted in Russell v. United States,

369 US. 749, 761 (1962) ); accord: State v. Greer, 238 N.C.

325, 77 S.E.2d 917, 918-919 (1953), by inquiring “into the

existence of possible criminal conduct and [returning] ... only

well-founded indictments,” Branzburg v. Hayes, 408 U.S. 665,

688 (1972); see also United States v. Calandra, 414 US. 338.

343 (1974), would suppose that this function called upon him to

return an indictment upon charges greater than those sought by

the prosecutor. And, as we shall shortly see under North Carolina

law, if a grand jury did return such an indictment, the prosecutor

could elect not to prosecute the offense charged, but only a

lesser included offense. See text and note at note 73 infra.

22b

shows that 2 greater crime has been committed, State v.

Allen, 279 N.C. 115, 181 S.E.2d 453, 455 (1971);”

and see State v. Roy, 233 N.C. 558, 64 S.E.2d 840,

841 (1951).”

™31n State v. Allen, the Court affirmed a second degree

burglary conviction in a case where the sole question presented

on appeal was “ ‘Did the trial court commit error by placing the

defendant on trial for burglary in the second degree when all the

evidence tended to show burglary in the first degree?’” 181

S.E.2d at 455. The appellant was charged by indictment with

first degree burglary, but at trial the solicitor announced he

would seek no verdict greater than burglary in the second degree.

The Supreme Court of North Carolina -ruled that “the solicitor

has the authority to elect not to try the defendant on the

maximum degree of the offense charged but to put him on trial

for the lesser degree thereof and lesser offenses included

therein.... The effect of such election by the solicitor,

announced as in this instance, is that of a verdict of not guilty

upon the maximum degree of the offense charged, leaving for

trial the lesser degree and the lesser included offenses.” /bid.

Cf Note, Prosecutorial Discretion, 21 DePAUL L. REV.

485, 486 (1971-1972):

“(t]he limitations of a prosecutor's discretion are some-

what nebulous, and, in general, undefined. He has the

authority by law to enforce certain laws by prosecuting

offenders. Whom he chooses to prosecute, what he charges

them with, whether he charges them at all, whether he

later drops the charges or recommends a lower sentence at

the time of trial are all within the prosecutor’s exercise of

discretion.”

See also MILLER, PROSECUTION: THE DECISION TO

CHARGE A SUSPECT WITH A CRIME 154-172, 293-350

(1969); 2 PLOSCOWE (ed), MANUAL FOR PROSECUTING

ATTORNEYS 315-320 (1956); Baker & DeLong, The Prose-

cuting Attorney, 24 5. CRIM. L. & CRIM. 1025 (1934),

Ferguson, Formulation of Enforcement Policy: An Anatomy of

the Prosecutor’s Discretion Prior to Accusation, 11 RUTGERS L.

REV. 507 (1957); Mills, The Prosecutor: Charging and

“Bargaining,” 1966 U. ILL. L. F. 511; Note, Prosecutor's

Discretion, 103 U. PA. L. REV. 1057 (1955); Note, Private

Prosecution: A Remedy for District Attorneys’ Unwarranted

Inaction, 65 YALE L. J. 209, 209-215 (1955).

23b

The North Carolina courts steadfastly refuse to

review prosecutorial decisions. The leading case is State

v. Casey, 159 N.C. 472, 74 S.E. 625 (1912), where an

appellant, prosecuted and convicted for second degree

murder by poisoning, argued that there was no evidence

of this crime; that she was either guilty of first degree

murder or not guilty of any offense. The North

Carolina Supreme Court rejected this contention,

commenting that the appellant had no “privilege to be

tried for the capital felony” and concluding 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

following Waddell, the court in State v. Jarrette, 284

N.C. 625, 202 S.E.2d 721, 742 (1974), flatly rejected

the contention that the Eighth and the Fourteenth

Amendments required any circumscription of the

discretion of the Solicitor in capital cases:

“the Constitution of the United States does not

require a state, in the enforcement of its criminal

laws, so to hedge its prosecuting attorney about

with ‘guidelines’ that he becomes a mere auto-

maton, acting on the impulse of a computer and

treating all persons accused of criminal conduct

exactly alike.”

The consequence of this unfettered prosecutorial

discretion is, of course, that different Solicitors may

utilize different standards in deciding whether to

initiate capital or noncapital prosecutions. Without any

guidance whatsoever,”* a Solicitor is free to make the

SCf. Wechsler, The Challenge of a Model Penal Code, 65

HARV. L. REV. 1097, 1102 (1952):

“{a] society that holds, as we do, to belief in law cannot

regard with unconcern the fact that prosecuting agencies

can exercise so large an influence on dispositions that

involve the penal sanction, without reference to any norms

but those that they may create for themselves.”

24b

decision whether an indictment will be sought for first

or second degree murder or manslaughter,” for rape or

assault with intent to rape, for first or second degree

burglary. 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 vy. Georgia, supra, 408 U.S. at 314

(concurring opinion of Mr. Justice White). This

unconstrained discretion doubtless accounts in consider-

able part for the striking fact that there have been only

three convictions’’ of first degree burglary during a full

year of Waddell’s implementation in a State where there

were about forty convictions annually for this crime in

7*As we demonstrate at pp. 65-76 infra, the distinctions

among these offenses as they may apply to particular factual

Situations are largely intangible and judgmental.

State v. Poole, rev'd for insufficient evidence, 285 N.C. 108,

203 S.E.2d 786 (1974); State v. Henderson, 285 N.C. 1, 203

S.E.2d10(1974), petition for cert. filed sub nom. Henderson y.

North Carolina, U.S.S.C. No. 73-6853 (June 8, 1974); State v.

Boyd, N.C. Sup. Ct. No. 7, Spring Term 1974, (pending on

appeal). In State v. Henderson, supra, the defendant was also

convicted of and sentenced to die for rape; and in State v. Boyd,

supra, the jury was unable to agree on a homicide verdict after it

was instructed that it could find the defendant guilty of second

degree murder.

25b

the recent past, and where 39,210 “burglaries and

housebreakings” were reported in 1972.7? The conclu-

sion is inescapable that Solicitors have simply not

regarded first degree burglary as a crime deserving

death, and have not initiated first degree burglary

™In 1955, the North Carolina Department of Justice ceased

to report separate statistics for persons convicted of first degree

burglary and of second degree burglary. In 1952, there were 47

convictions for first degree burglary in Superior Court (with 15

“Other dispositions”) and 5 convictions in “inferior court” (with

64 “Other dispositions” there). 32 BIENNIAL REPORT OF THE

ATTORNEY GENERAL OF THE STATE OF NORTH CAR.

OLINA 1952-1954 515, 521 (1954). In 1953, there were 33

convictions for first degree burglary in Superior Court (with 10

“Other dispositions”) and 4 convictions in “inferior court” (with

49 “Other dispositions” there). /bid. In 1954, there were 35

convictions for first degree burglary in Superior Court (with 26

“Other dispositions”) and 9 convictions in “inferior court” (with

61 “Other dispositions” there). 33 BIENNIAL REPORT OF THE

ATTORNEY GENERAL OF THE STATE OF NORTH CAR.

OLINA 1954-1956 377, 379 (1956). “Other dispositions” is

nowhere defined; since the total of convictions and “Other

dispositions” represents “cases disposed of in the Superior and

inferior courts of the State,” 32 BIENNIAL REPORT OF THE

ATTORNEY GENERAL OF THE STATE OF NORTH CAR.

OLINA 1952-1954 510 (1954), “Other dispositions” apparently

includes acquittals and nol pros’s.

” UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL

BUREAU OF INVESTIGATION, CRIME IN THE UNITED

STATES 1972 74 (Aug. 1973). The Uniform Crime Reports, of

course, reflect reported crimes, not convictions; and the reported

“purglaries and housebreakings” doubtless exceed the total

number of statutory first degree burglaries which occurred in the

State during 1972. Nevertheless, it cannot rationally be imagined

that only three first degree burglars were apprehended in North

Carolina during a twelve month period.

26b

prosecutions in cases where they might have obtained

convictions for this crime.

The inconsequential number of first degree burglary

convictions under the Waddell regime is _hasdly

surprising, since the ‘ercise of prosecutorial discretion

to blunt the impact of “mandatory” penalties in

sympathetic cases has been one of the most significant

phenomena observed in the enforcement of such

statutes: “‘[a] charge may be reduced to avoid infliction

of punishment harm that administrative officials regard

as too severe in relation to the suspect’s conduct.

Usually, a less serious offense is charged because

conviction of the maximum offense carries a statutory

mandatory minimum sentence.”’®®

As with the death-penalty statutes struck down in

Furman, it is not necessary to conclude that North

Carolina’s capital laws are being intentionally adminis-

tered “‘with an evil eye and an unequal hand,” Yick Wo

® MILLER, PROSECUTION: THE DECISION TO CHARGE

A SUSPECT WITH A CRIME 207 (1969). Cf Rosett, Discretion,

Severity and Legality in Criminal Justice, 46 SO. CALIF. L.

REV. 12, 49 (1972):

“lo] fficials tend to respond to the undue harshness of

punishments provided by the law by seeking discretion to

avoid the imposition of that harshness in most cases. Yet,

ironically, it is when the system is particularly severe that

discretion may be most abusive and the temptation to act

unjustly becomes greater. When the system is severe,

discretionary decision-making becomes unacceptable be-

cause it reposes excessive authority in the hands of an

often unsupervised individual official. In such a situation,

the advantages of legal rules and process become

exaggerated.”

27b

v. Hopkins, 118 U.S. 356, 373-374 (1886). The point

rather is that their implementation is necessarily and

unavoidably arbitrary. Since no standards exist to

regularize the exercise of prosecutorial discretion, there

is nothing to guarantee that some defendants, like

petitioner, will not be capitally charged while other

defendants, probably guilty of similar conduct, are

prosecuted for second degree murder or manslaughter.

Although the choice of charge is quite literally the

difference between life and death, that choice is a

completely uncontrolled, discretionary decision of the

Solicitor.

B. Plea Bargaining

Another point of entrance for arbitrariness in the

administration of capital punishment in North Carolina

under the Waddell procedures is the unfettered power

of the Solicitor to accept a plea of guilty to a lesser or

other non-capital offense from a capitally charged

defendant, and/or to nol pros a capital indictment.

Exercise of this discretionary power undercuts the

“mandatory” nature of the death penalty for first

degree murder as effectively as the practice of

selectively charging homicide defendants with second

degree murder or manslaughter at the outset. The

guilty-plea process is unregulated by law, and the

discretion of a Solicitor to accept a plea to a lesser

offense in a capital case is therefore quite as

untrammelled as the freedom of a jury to recommend

mercy in a pre-Waddell capital prosecution.

28b

Plea bargaining is pervasive in the criminal justice

system; guilty pleas are said to account for up to ninety

per cent of all criminal convictions.*’ Indeed, in view of

the judicial resources available, the systematic and

extensive practice of plea bargaining appears inevitable:

“fi]f all the defendants should combine to refuse

to plead guilty, and should dare to hold out, they

could break down the administration of criminal

justice in any state in the Union. But they dare

not hold out, for such as were tried and convicted

8!PRESIDENT’S COMMISSION ON LAW. ENFORCEMENT

AND ADMINISTRATION OF JUSTICE, TASK FORCE

REPORT: THE COURTS 9 (1967). See also Coon, The

Indictment Process and Reduced Charges, 40 N.Y. ST. BAR J.

434 (1968). A study of the indictments for first and second

degree murder in Massachusetts between 1956 and 1965 which

received a final disposition in terms of guilt or innocence

revealed that 221 out of 326 defendants (67.8%) entered a guilty

plea and that 93.2% of these guilty pleas were to a lesser charge.

Carney & Fuller, A Study of Plea Bargaining in Murder Cases in

Massachusetts, 3 SUFF. L. REV. 292, 299 (1969). The study

concluded that:

“there is a wide disparity among the courts in terms of the

proportion of guilty pleas in murder cases. This finding

indicates that the practice of plea bargaining is far from

uniform. It also underscores the potential risk inherent in

such an informal and invisible process as plea bargaining.

For example, a defendant indicted for first degree murder

in one court may have a very good chance of negotiating a

plea of guilty to second degree murder, while in another

court such a possibility may be minimal. The implications

of this are serious, since conviction for first degree murder

may well result in a sentence of death.... Therefore, it

seems crucial that the practice of plea bargaining be

governed by specific and explicit guidelines that could be

systematically and consistently applied from court to

court.”

Id. at 307.

29b

could hope for no leniency. The prosecutor is like

a man armed with a revolver who is cornered by a

mob. A_ concerted rush would overwhelm

him.... The truth is that a criminal court can

operate only by inducing the great mass of

actually guilty defendants to plead guilty.’’*?

Because homicide cases are likely to take up a great

deal of time in preparation and trial, they are

particularly likely to be settled by plea bargaining.**

And the fact that the harshness of a death sentence

creates a relatively great risk that a conviction will be

reversed on appeal for procedural error provides an

additional incentive for plea bargaining in capital cases:

“ee

[s]ince time immemorial... [prosecutors] will

prefer to get a definite conviction, without the

tremendous expense that goes with a murder trial,

the taking of a chance that a jury may not

convict, or that some technical error will be made

in the heat of trial which will result in a reversal

by an Appellate Court.’ "™

521 UMMUS, THE TRIAL JUDGE 46 (1937).

In the words of one prosecutor:

“*A murder case ties up a courtroom for a week, or at

least for three days. We are naturally more anxious to

bargain for guilty pleas in murder cases than we are in

cases that might take fifteen minutes at trial.’ ”

Pittsburgh First Assistant District Attorney James G. Dunn,

quoted in Alschuler, The Prosecutor's Role in Plea Bargaining, 36

U. CHI. L. REV. 50, 55 (1966).

“Bedau, Death Sentences in New Jersey 1907-1960, 19

RUTGERS L. REV. 1, 30 (1963) (quoting opinion of Judge C.

Conrad Schneider, State v. Faison, No. 5-550-57, Bergen Cty.

Ct., Nov. 21, 1958).

30b

Plea bargaining almost inevitably involves a reduction

in charge or sentence: “[a] promise by the prosecutor

of sentence leniency or a charge reduction as a

concession for a plea of guilty is a major characteristic

of the negotiated plea process.”** This Court is not

unfamiliar with guilty pleas to lesser included offenses

entered by North Carolina defendants charged with

capital crimes, who thereby escaped possible death

penalties. North Carolina v. Alford, 400 USS. 25

(1970);8 Parker v. North Carolina, 397 U.S. 790

(1970). Such cases are a commonplace of “capital”

justice. See, e.g., Tollett v. Henderson, 411 U.S. 258

(1973). Indeed, the prosecutor’s attitude toward

plea-bargaining in the case of a death-charged defendant

is “probably the most widely significant choice

separating the doomed from those who...go to

prison.”’*’ That attitude in tum reflects fundamentally

the prosecutor’s choice to insist upon or to remit the

punishment of death. For his willingness to offer or

accept a lesser plea (and how much lesser) responds not

SSNEWMAN, CONVICTION: THE DETERMINATION OF

GUILT OR INNOCENCE WITHOUT TRIAL 29 (1966).

81 North Carolina v. Alford, the Court noted that “the State

had a strong case of first-degree murder against Alford. Whether

he realized or disbelieved his guilt, he insisted on his plea because

in his view he had absolutely nothing to gain by a trial and much

to gain by pleading. Because of the overwhelming evidence

against him, a trial was precisely what neither Alford nor his

attorney desired.” 400 U.S. at 37.

®7BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY

OF CAPRICE AND MISTAKE 43 (1974).

31b

merely to his estimate of trial costs and contingencies

but also to his wholly discretionary judgment —

sometimes reasoned, sometimes “gut,” sometimes prin-

cipled and independent, sometimes politically opportun-

istic, but always selective and subject to the influence

of factors which remain “demeaningly trivial compared

to the stakes’’** — as to whether the particular offense

or offender deserves capital punishment.®®

Furthermore, an ostensibly “mandatory” death penal-

ty statute is especially likely to result in the selective

allowance of guilty pleas to lesser included offenses,

since “[m]Jany prosecutors and judges... support the

practice as both necessary and desirable ...to achieve

sentencing flexibility which would sometimes be

prevented by mandatory sentences.”™ The negotiated

” This phrase was used by the late Professor Harry Kalven, Jr.,

and by Hans Zeisel to describe the factors affecting capital

sentencing by juries before Furman. KALVEN & ZEISEL, THE

AMERICAN JURY 448-449 (1966). It is equally apt to describe

the factors influencing the prosecutor's plea-bargaining discretion

after Furman and Waddell.

See BLACK, CAPITAL PUNISHMENT: THE INEVITABIL-

ITY OF CAPRICE AND MISTAKE 41-44 (1974). Cf. note 91

infra.

*NEWMAN, CONVICTION: THE DETERMINATION OF

GUILT OR INNOCENCE WITHOUT TRIAL 102 (1966). Cf.

Steinberg & Paulsen, A Conversation with Defense Counsel on

Problems of a Criminal Defense, 7 PRAC. LAW No. 5, 25, 31-32

(1961):

“[t} hese plea bargains perform a useful function. We have

to remember that our sentencing laws are for the most part

savage, archaic, and make very little sense. The penalties

they set are frequently too tough .... The negotiated plea

is a way by which prosecutors can make value judgments.

They can take some of the inhumanity out of the law in

certain situations.”

32b

plea is “the means by which... [a prosecutor} can

avoid the unacceptably rigorous application of the letter

of the law.’’*! Prosecutors

“declare without hesitation that one of their goals

in the [plea] bargaining process is to nullify harsh,

‘unrealistic’ penalties that legislators have pre-

scribed for certain crimes.””*

It is clear that a great many capitally charged

defendants in North Carolina have been allowed to

plead guilty to lesser offenses and thus to escape the

threat of a death penalty.%? In other cases, however,

9% Rosett, Discretion, Severity and Legality in Criminal Justice,

46 SO. CALIF. L. REV. 12, 25 (1972). See also Worgan &

Paulsen, The Position of a Prosecutor in a Criminal Case — A

Conversation with a Prosecuting Attorney, 7 PRAC. LAW. No.

7, 44, 53 (1961):

“{i]n many cases we believe we mitigate the harshness of

the letter of the law by taking a guilty plea. We make such

decisions only after much careful thought and I think we

make them in a way that the community generally

approves.”

2 Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U.

CHI. L. REV. 50, 54 (1966). See also 2 PLOSCOWE (ed.),

MANUAL FOR PROSECUTING ATTORNEYS 319 (1956);

Coon, The Indictment Process and Reduced Charges, N.Y. ST.

BAR J. 434, 438 (1968).

See eg, the following 17 cases: State v. Hamlin, Wake

County Super. Ct. No. 74-Cr-11895 (April 1, 1974, indictment

for first degree murder; April 12, 1974, guilty plea to second

degree murder, sentence of 15-20 years); State v. Leroy Johnson,

Wake County Super. Ct. No. 74-Cr-7160 (February 25, 1974,

indictment for first degree murder; March 8, 1974, guilty plea to

second degree murder, sentence of 10 years); State v. Harris,

Wake County Super. Ct. No. 73-Cr-76418 (February 11, 1974,

(continued)

33b

solicitors have wanted and achieved nothing less than a

(footnote continued from proc«ding page)

indictment for rape; August 19, 1974, guilty plea to assault on a

female, sentence of | year); State v. Santor, Wake County Super.

Ct. No. 73-Cr-68725 (February 11, 1974, indictment for first

degree murder; July 15, 1974, guilty plea to voluntary

manslaughter, sentence of 20 years); State v. Lacy Jones, Wake

County Super. Ct. No. 73-Cr-698 (January 21, 1974, indictment

for rape; September 16, 1974, guilty plea to assault on a female,

sentence of 1 year); State v. Kenneth Jones, Wake County Super.

Ct. No. 74-Cr-697 (January 21, 1974, indictment for rape;

September 16, 1974, guilty plea to assault with intent to inflict

serious injury, sentence of | year); State v. Chance, Wake County

Super. Ct. No. 74-Cr-696 (January 21, 1974, indictment for rape;

September 16, 1974, guilty plea to assault on a female, sentence

of 1 year); State v. Goldston, Wake County Super. Ct.

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