# Petition — Woodson v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2059%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 280 ## Text 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, ? (July 9, 1974). Jarrette v. North Carolina, No. °* !*7 (June ll, 1974). 16 17 17 21 la lb le 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)..... | a 18 18 18 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 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 y Whittington Butler, a white woman. Vy 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. R. 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’ 4/ 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. 2/ 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 S/ 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 = 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 « ee 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) N. 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 a 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} ; t 2% i i} 1 —— -~— ———— 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 . 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 ed 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 wy 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 to 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 Wo 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 f 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 © furnished them hy the solicitor are wit 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. 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 i 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 | : $15, ic? : v. . i: ), ; i f Banc . the history «f t nantes of Coun ol for ¢ fondant: ? althe: ‘ h gwar tice” when ico i “tur ! ty ‘ef the Wadicll and Jarreite Geer ions, as dence,” sec United State. v. Pe well as thy subse vucn! ules barved or thie 10), ot, , Ld! (] ): a\W! Sa have understandably felt comstrained to re- inal Law and Procedure § 165 (15% peat the constitutional chulhige to the CJS. Crimine! Law § 4601) (1 death penalty. R.C.1., Criminal Low § 10) QS)o), {10} ton, Woodson, Carrell, : Md 215 SOUTH HASTERN REVORTER, 2d SERIES . conspirators, are equally guilty two of them bea: soll cept his plea was an a the “sf 1s of f fumelan ic capital mh) rbitras ‘ change for their testimony against Uh Defendant Warton, who tender the close of the evidence the same p’ which Tucker tendered prior to the tr . ! ust to +1 Defendants next contend that since Wis. 1 Yucher, the f r STATE v. WOODSON - :' Cite as 215 S$ 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 © extenuating circumstances grave tho so fi 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 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 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-