Petition — Bock v. North Carolina

' RECEIVED ;

NOY 101975

OFFICE OF THE CLERK

cl CORT, US.

| : 5

IA

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

+ * „ * * * — 7 * * +

ROBERT GARY BOCK, R.,

PETITIONER

-VS-

STATE OF NORTH CAROLINA,

RESPONDENT

* 7 * * + + * * * + 7

PETITION FOR CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

+ + + + . 7 + * 7 + . *

WILLIAM S. GEIMER

ATTORNEY FOR PETITIONER

SMITH & GEIMER, p. A.

704 Wachovia Building

Post Office Drawer 209

Fayetteville, North Carolina 28302

Telephone: (919) 484-8195

INDEX

Citation to Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory Provisions Involved

Statement

How the Federal Questions Were Raiied and Decided Below

Reasons for Granting the Writ

Conclusion

TABL; OF CASES

Witherspoon v. Illinois, 391 US 510 (1968)

State v. Waddell, 282 NC 431, 194 St 2d 19 (1973)

State v. Butts, 285 NC 256, 204 SE M 817 (1974)

State v. Honeycutt, 285 NC 174, 203 f 2d 844 (1974)

Dillard v. North Carolin, 73-6875 ‘Filed June 11, 1974)

Furman v. Georgia, 408 US 238 (1972)

PAGE

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RECEIVED

— NOV 101975

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

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ROBERT GARY BOCK, IR.,

PETITIONER

VS

STATE OF NORTH CAROLINA,

RESPONDENT

ee-@ 6 00 0 0 ee @ R * *

PETITION FOR CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

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Petitioner prays that a Writ of Certiorari issue to review the Judgment

of the Supreme Court of North Carolina entered on August 27, 1975.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of North Carolina is reported at

NC , 217 SE 2d 513 (1975) and is set out in Appendix A hereto.

JURISDICTION

The jurisdiction of this Court is invoked under 28 USC §1257(3),

Petitioner having asserted below and asserting here deprivation of rights

secured by the Constitution of the United States.

QUESTIONS PRESENTED

1. Whether the imposition and execution of the sentence of death for

the crime of murder under the law of North Carolina violates the Eighth or

Fourteenth Amendments to the Constitution of the United States.

2. Whether the North Carolina procedure for jury selection in capital

cases, aS applied in Petitioner's case, violates the Sixth Amendment to the

Constitution of the United States ad the mandate of this Court in Witherspoon

„. Illinois, 391 US 510 (1968), or the Fourteenth Amendment to the Constitution

of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Sixth, Eighth and Fourteenth Amendments to

ole

the Constitution of the United States.

2. This case involves the following provisions of what were, at

all times pertinent to this action, the General Statutes of North Carolina:

Section 14-17 Murder in the First and Second Degree Defined; Punishment.

A murder which shall be perpetrated by means of poison, lying in wait, impri-

sonment, starving, torture, or by any other kind of wilful, deliberate and

premeditated killing, or ich shall be committed in the perpetration or

attempt to perpetrate any arson, rape, robbery, burglary, or other felony,

shall be deemed to be murder in the first degree and shall be pun

death; provided, if at the time of rendering its verdict in ) t, the

jury shall so recommend, the punishment shall be impr t for vife in the

State's prison, and the Court shall so instruct the jury. All other kinds of

murder shall be deemed murder in the second degree, and shal] be punished with

imprisonment of not less than two nor more than thirty years in the State's

prison. |

Section 15-187 Death by administration of lethal gas. Death by electro-

cution under sentence of law is hereby abolished and death by the administration

of lethal gas substituted therefor.

Section 15-188 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 penitentiary shal} also cause to be provided in conformity with

this article and approved by the Governor and Council of State, the necessary

. construed in State v. Waddell, 282 NC 431, 194 SE 2d 19 (1973), where the

power of the jury to recommend life imprisonment was stricken by the Court.

appliances for the infliction of the punishment of death in accordance with

the requirements of this article.

Section 9-15 Questioning Jurors Without Challenge; Challenge for Cause.

(a) The Court, and any party to an action, or his counsel of record

shall be allowed, in selecting the jury, to make direct oral inquiry of any

prospective juror as to the fitness and competency of any person to serve as

a juror, without having such inquiry treated as a challenge of such person, and

it shall not be considered by the Court that any person is challenged as a juror

until the party shall formally state that such person is so challenged. ¢

STATEMENT

This is a Petition for a Writ of Certiorari to review the judgment of

the Supreme Court of North Carolina, entered on August 27, 1975, affirming

Petitioner's conviction and death sentence. Petitioner, Robert Gary Bock, Jr.,

was sentenced to die on March 8, 1974 in the Superior Court of Moore County,

North Carolina upon a conviction of the offense of first degree murder. Petitioner's

sentence of death was imposed under North Carolina General Statute 14-17 as

construed by the Supreme Court of North Carolina in State v. Waddell, supra,

and related cases which are already before the Court.

During the jury selection, and prior to the presentation of evidence,

several prospective jurors were excused for cause. after examination by counsel

for the State concerning their views on capital punishment and their ability

to apply the bw as given to them by the Judge. These jurors were excused over

Objection by Petitioner who was not given the opportunity to examine them con-

cerning the answers they had given to counsel for the State, or with respect to

any other matter concerning their fitness and competency to serve as jurors.

The State's evidence tended to show that late in the evening of November

22, 1973 Petitioner appeared at the home of one Martin Bergman in rural Harnett

County, North Carolina, near the Moore County line. He was accompanied by a

female knows as Candy“ who was Karen Stewart and was driving a Mustang automobile

owned by her. The two left and returned to the Bergman residence on more than

one occasion during the course of the evening, but subsequently they left

2 construed in the instant case and in State v. Butts, ‘283 WC 256, 204 SE

2d 817 (1974), and State v. Honeycutt, 285 NC 174, 203 SE 2d 844 (1974).

**

together and Petitioner returned alone.

Petitioner had upon his clothing blood of the same type as that of

Karen Stewart, which was different from his own, and also had in the Mustang

automobile a knife with blood on it of the same group as Karen Stewart. An

Overnight bag with articles of female clothing was in the rear of the vehicle.

The body of Karen Stewart was found early in the morning of November 23, 1973

on a dirt road in the sand pits area of Moore County about five miles from the

Bergman residence. She was dead of multiple stab wounds, between forty-nine and

fifty-five. Petitioner was arrested later that morning while still at the

Bergman residence.

The evidence for Defendant was to the effect that he had never met the

deceased prior to November 22, 1973. She picked him up as he was Standing on

the side of the road in Fayetteville, North Carolina. They had intercourse on

two occasions during the course of the night in rural Harnett and Moore County.

After the second time they argued and he struck her. At that time, she was

holding his knife, but it was closed and he was not in fear. He started to

leave her there, but changed his mind. As he turned back towards her, she was

coming towards him with the knife open and he was at this time in fear of death

or great bodily harm. He grabbed her arm and does not recall what happened after

that unt i] he recalls leaving, turning the car around and ‘eaving the area.

The Court instructed the jury that it could find Petitioner guilty of

murder in the first degree, murder in the second degree, manslaughter, or not

guilty. The jury returned a verdict of gutlty of murder in the first degree and

the Court thereupon sentenced Petitioner to death.

On August 27, 1975 the Supreme Court of North Carolina affirmed Petitioner's

conviction with three Justices dissenting as to the death penalty. Chief Justice

Susie Sharp has stayed execution of the judgment in order to allow time for these

proceedings.

: HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOw

Petitioner, through counsel, entered written objection to being tried

under North Carolina's judicially fashioned capital case procedure, including

the jury selection process. He objected to the exclusion for cause of certain

veniremen of whom he was not permitted to make inquiry as to their fitness and

competence. He age in objected to their entry of Judgment on the grounds which

are alleged herein and pursued his claims that the jury selection and imposition

of the death pevalty under North Carolina law as applied in his case was uncon-

Stitutional. The Supreme Court of North Carolina rejected these contentions on

their merits citing its prior decisions. Chief Justice Sharp and Justices

Copeland and Exum dissented as to the imposition of the death penalty.

REASONS FOR GRANTING THE WRIT ve

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE IMPOSITION AND

EXECUTION OF THE SENTENCE OF DEATH FOR THE CRIME OF MURDER UNDER THE LAW OF

NORTH CAROLINA AS IT EXISTED AT THE TIME OF PETITIONER'S CASE VIOLATES THE EIGHTH

OR FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.

THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE JURY SELECTION

PROCESS IMPOSED IN PETITIONER'S CASE, VIOLATED THE SIXTH OR FOURTEENTH AMENDMENTS

TO THE CONSTITUTION OF THE UNITED STATES.

I. In view of the many cases which are nos before the Court and present the

identical issue to this one with reference to the death sentence the Petitioner

would adopt the reasons for granting the Writ stated in the Petition for Certiorari

in Dillard v. North Carolina, 73-6875 (filed J\ne 11, 1974), and each of the issues

set forth chere:

a. Whether the decision of the North Ca‘olina Supreme Court reinstating

the death penalty in that State following furnan v. Georgia, 408 US 238 (1972),

is an impermissible evasion of the Furman holding

d. Whether such a reinstatement of the dei th penalty by judicial decision

violates the Eighth and Fourteenth Amendments commands of lawfulness in criminal

punishments ;

c. Whether perpetration of arbitrary discretion in prosecution and sentencing

in North Carolina's administration of the ſeath penalty following Furman violates

the constitutional rule of that case; |

d. Whether the death penalty is so inconsistent with contemporary standards

of decency to violate the Eighth and Fourti nth Amendments.

2. The Court should call for and eximine the record of the jury selection in

this case, to determine whether:

a. The granting of challenges for cause, after a prospective juror has

been examined concerning the death penalty by counsel for the State alone, who is

permitted to examine by use of leading and other cross-examination methods, and

without any opportunity for examination by defense counsel, violates the Sixth

and Fourteenth Amendments, as previously interpreted by this Court.

b. Whether the jury selection process outlined above is violative of

the Fourteenth Amendment by denyinj Petitioner a right specifically granted to

him by North Carolina General Sta ite 9-15.

(UNCLUSION

For the reasons cited above, the Writ of Certiorari should issue to review

the judgment and opinion of the Su~eme Court of North Carolina.

RESPECTF

Y SUBMITTED,

WILL . GE

ATTORNEY FOR PETITIONER

SMITH & GEIMER, P. A.

704 Wachovia Building

Post Office Drawer 209

Fayetteville, North Carolina 28302

Telephone: (919) 484-8195

*

ta „ SUD Cr NA CAéAacLia San 225

2... Ci’ EL. A=NRNa

v. Mo. 8272

Ac TAT CA. AT BoCk, Ja.

Seal by defendant uncor G. 3. 7A-27(a) fr KeCoanell, J.,

ch 12574 Sessioa of the Cupcrior Court of Koorse.

Deiendaat was tried upoa an indictuont, drawm under ..

en Heged Bim wits the gurder oF rea Wilkos Stowart ca -<

12.2. Vem a verdict of guilty of murder in the first degree <n.

onto of death, cefendant appoalod.

fue States evidence ads to chow tho following facts:

About midnigat on 22 Noveubor 1975 cofendant arrived at -

seo Uartin Dorgaaa in Kcoro County. Hoe was driving the 22

tenz automobile which belonsed to his cozyanion, Miss Larca i. -

etcevart. Cock and 2orgaan had knowa each othor fer about a yas. .. |

fivct wot at the zan of Sorgeant Cary Kiley, whore they had uv.

tber. Bock tad visited in the Corgan Acue on prior occunis.., °

wa this particulas night he waz not oxpected. When defcndant a.

Stewart first appoared t the Lorgman hane, they did not got cut ..

car. After stopping for a few soconds dofendant drove away, i...

der iceuman obsesved hin pass the house two or three tiacs dcr

2 wich sate of speed. Subscquontly, defendant and Kiss Stewari 2

aac be told organ ho was going to take the girl over to tio i...

to caw Ler a farm and animals." This time they were gone oniy i.

cr ties aten. Whea they returned thoy got out and joined i..

an Zamily and tei four bouse guests around a cap f. CC. -

cant intcocucod Liss Stewart to ths group as “Candy.” Arc. t.....

with the croup fur a while, corcadant and Miss Stewart agaia ic...

feadgant was ring aad Liss Stewart was seated on tho pasion .. --.c.

At this tino dofendcaat was wearing a suirt.

Tne next tice Torpaan caw cofcndant, be was again ».

a d dota” an front of te house in Liss Stewart's Mustang, i.. ~~

ee wag sot with in. Leon coioadant stopped at Big Lo. ...

tio eta tine Perg moticod tiat bo was wearing only his .-..-...,

ch appeared to have spots of blood om it. Defendant hod <-.

AP N “A

-2-

visible injuries about his person. Tha shirt he had beca wearin:

wan in the automobile, When several peoonle eventually aleo dot c. tant

as to the wherectouts of Miss Stewart, his answers were conflictis -.

ce he said he had taken her back to Fayetteville. Then he 3414 Lo

had taken ber down the road and thrown her out of the car.

Bergman, noticing a difference in defondant's appearance a.

ccoacanor when he returned the last time, took the car keys fron n

zu the car Bergman found Mies Stewart's purse, which contained ber

icoatification card and drivor's license. Her automobile recisten~ica

card was in the glove compartnent. A cosmetic case or overnight 1...

was in the back seat. Konneth Osbourne, one of the guests, found

defendant's knife (State's Exhibit 2) underncath the steering wes).

Toeve@ was blood on the blado, tho tip of which was broken eft. Delius

Gant Lag nothing to say when ho was cucstioned about the knife, "a

cuardiag knife, approximately <-1/2 inches long closed, and appre..i-

nately S-1/2 inches long with the blade open.” wWhon the blade c

tue knife locks into position; when closed, each end of the kniie .:;

rasa.

l Cosetine during tue latter part of tho might, dofendant told

Ecrguan that he and Miss Stewart had had sexual relations two Conc

that thoy were going to have rolations again but on the third oceoas.c:,

Sho dcuazaded money which he did not havo to give her.

About 5:30 a. a. Berguan and Sexzoant Kiley asked defondani

to show them where he had pushed the gui trom the car. Followin;

cefcndant's directions the three nen thon went searching for hius

ctovart but were unable to locate bor.

Before 7:00 a. . the next morning, police officers cane to 12

Doc nan hase to question defendant. At that time defendant had no o (ce

of alcohol about him, and he had no Gifficulty in walking. While t. .v,

the officers observed that the rear tire of tho Mustang had red csi. cu

it and found light colored hair in the shock absorbers. The off Ii

also noticed that defendant was wearing a knife sheath which fitter

knite souoved from the car the night before.

-3-

About 6:45 a. . on 23 November 1974, Billy Shaw and iwo

other done hunters found the body of a blonde, female person, 1 rc

identified as that of Mias Stewart, a fe miles from the deren

residence in the sandpits area of Moore County. Thore were tiro Lars

om the body. Billy Shaw remained with the body unt 11 Ed Cocku.n,

a detective fra the Moore County Sheriff's Department arrived.

Detectivo Cocksan testified that when he arrived at tke

wandpits he observed a nude body with many wounds and lacerations 22

tue side of the neck, hip, and leit breast. There were also stab vwouncs

of lacerations about the face. There was blood on the ground. While

_ there, he observed tire prints on the left leg of the victim. About

two ieet from the body of Karen Stewart, he observed a blanket and a

pair of slacks, One shoe was close by and the other about 25 fect

irom the body. There were tire prints on the front and inside pori.oa

of tae left leg, and there were also tire impressions on @ach give wi

the body.

atter the body Bad been reuoved, Cockaan returned to tic

rer gan residence where he found a brassiere under the mall gake- ug

kit in the car. He alco observed stains which appeared to be bloo

stains on both rear tires of the automobile.

‘ Cockzan testified that about 10:30 a. . he had a convert

tion with defendant at the sheriff's office. At this point defen tant

moved for a voirdire to determine the admissibility of defendant's

etatement in evidence. In tho absence of the jury Cockuan tested

that he told defendant be wanted to question hu with reference iv

the death of Karen Wilkes Stewart. Defore doing so, however, Le ic

hin his constitutional rights in the words of the Miranda warniny - ~~.

a printed form, introduced in evidence as State's Exhibit 18. Tue

forma was then handed to defendant to read for himself. Defendant sa.c

that he understood his rights and thea signed the following "Waivor

of aights"™:

"I have read the statewent of my cights and I understand

my fcights are. I em willing to make a statement and answer queciiv...

BEST COPY Mü

~4-

i Go not waat a lawyer at this tino. 1 understand and know what 1

am doing. No promises or threats have been made to ne and no pressure

or coercion of any kind has been made against ne by anyone.”

Defendant did not appear frightened, and was offered nor

fox Gis statement. Cocksan detected no odor of alcohol about hii aud

in as way forced defendant to talk. The interview lasted about 30

,BAnutes. During that time defendant wade a statement yhich was reduced

to writing.

Judge dcConnell found as a fact that defendant's statement vas

freely and voluntarily mado after he had been duly warned of all Lis

constitutional rights and afters ho had troely and voluntarily waived

his rights; that defendant was novmal at the tine, coherent, and wes

not confused. He ruled that defendant's statement was admissible iu

*

— 3

evidence.

Cockuan thea testified before tho jury that defendant mado tic

following statten to him:

"I was dcinking heavy last evening, tiei Nies up to a stop-

light in Fayetteville and I got in the car, Mach 1, color gold an:

black. We rode around 211 over Fayetteville and Spring Lake. We e££0),.20

someplace and had rel, tons, then went to Martin Bergman's house ait

midnight. I had she more drinks. I was talking to Martin Porgzan.

Candy was talking to another guy about dogs. We left, wont down rag,

took left out of Martin's yard, parked someplace around there and had

relations again. I started driving around telling her lies, makin; bor

think I had money. Candy was putting pressure on me for none. i

assused it was for services rendered. I put my knife on the console

Saeplace. Large pocket knifo, brass ends. After this she started

giving me a hassle with knife in her hand. I don’t know what happens

at tor that except I was going to put her out of the car. Next tain,

I reuenber I was at Martin Bergman's house. Mo one else had been iis

Candy and myself.”

Cockman also testified that as defendant made his statencnt

he identifzied the driver's license picture of Karen Wilkes Stewart «s tho

girl be had accompanied on the night in question. He also identificd

-3-

the knife found in the victim's Mustang as belonging to his.

De. C. Harold Steffe, an expert pathologist who exauined

Mine Stowart's body about 11:00 a. m. on 23 November 1972, testi led

‘he found 55 stab wounds in the victin's bedy and that the cause of

death was loss of blood into the chest caused by stab wounds into e

major vecsel which feeds into tue left lung. He also observed two

tire tracks on her body, one across bor chest and another acrous t. loft

lez ~ not quite parallel, In his o;inion the body was run over altuc

conth, le found no sperm in the vaginal canal, but stated that tho

absence of sperm did not preclude the possibility of intercourse. A

. blood test revealed no evidence of alo:bol,

| an SBI chenist testified that the blood found on defendant's

T-shirt, the knife, the left rear tire, and from the oman tigsue

recovered from underneath the car was a). of Group © which Vas also

the victin's blood type. Defendant’s bleud type was nalyzed as Gicup A.

An SGI micco-analyat testified tiat hair Samples recoverc.u iron

the underside of the Mustang bore Bignifijant similarities to hale ishea

from the victim. The analyst also testifiid that fibers taken frou a

blanket found at ther gene Vere aluost den ical to fibers taken fru. tho

bottom of the Mustany.

0 At this point the State rested an) cefendant moved for a na-

suit on the ground that the State had ot toi d no @videace of a pre

tated and deliberate’ murder. the court den: 0 this motion, and defendant

offered evidence, N f. v |

As a witness in his own behalf, de.\wadant's testimony ten ed

to show: \

On 22 November 1973 defendant was 19 \ rears old, six feet vic

three or four inches tall; he weighed about 18} pounds. A native oi

Chicago, no ws & meaber of the Sand Airborne vieles at Fort rage,

N. C. Vr time to time he assisted Sergeant ca Kiley, a wember of

his unit and a friend, on the Sergeant's fara net | Fort lragc. In

pitching hay and feeding animals he used the k. ur. (State’s Exhibit 2)

to cut bales of hay and tangled wire in the nag ialer, On Noveabes

Land, Thanksgiving, be vas not required to perten any militar, dut e

|

-6-

and he was wearing the knife in its sheath becase he had oxpectcd tu

help Sergeant Kiley om the farm. e does not know whothor the point

oa the blade was broken off on November 22nd. Wher he learned that

Cergeant Kiley did not need hin on the farm that day, bo wont with a

g<eoup ton his unit to the NCO Club where he purchased two fiftias of

bicard: Rum. By late afternoon he had congused at least a tartu eo.

liquor. det o that evening, under circuustances which ho red.

only vaguely, he mot a girl who identified horself as Candy.

The girl was on uaeford Road in a Ford liustang, and to wis

walking. Ee doos not know how he happened to get in the car. due

211d over and he entored the autamobile on the driver's side. Lo oc

never soon her before, They proceeded down a road and engaged ix

soxual intercourse on a blanket cutside the automobile, Lo believe:

he was drunk at that timo; that there was liquor in the back soat or

the unstang. They then drove to the Bergman residence, where Lo o-

to nocgnan and left without gott ing out of the car. Subsequently ds

roturned and loft again several tics.

The last time dofendant aud uss Stowart returned to,etu.

they got out and, for a wiile, gat around a camp fire with era acd

his guests. Then, oneo more, they left and when defendant retucned

Miss Stewart was not with him. Le testizied that during his i:si

absence they had gone to some dark area, which he could not find asic,

and therg engaged in sexual relations on 8 blanket outside the che.

Thereaitor, they began to argue about money which had not thorotulfovo

doon meationed. He dressed in his pants and shirt and che dressed cal

jaa svoater. Thon thoy met at sane point near the car and sho ate picu

to clap him, In ber hand he saw the brass ends of his closed hal z,

walch Bo uad placed on the console in the car. Be had no foar ui ive

and knocked her to the ground. le thon went back to the car with to

intcation of leaving without her. Eowover, he changod his mind and

tur nod acound to see her coming at him with his knife, which wis it. ..

open. He grabbed hor arm and rocalls nothing which happened organs

until he was turning the car around and leaving the area. Le docs 228

2

rice

yecsll running over bor, but it is possible that he did Go. Uo e

driving down the center of the road following the white lino asd ==

ing at berguan’s house. |

fendant testified “that at no time, including tho tine ke

first knocked Candy down and the tine he saw her coming at hia with

the open knife, did he intend to kill her. But he does not specifically

recollect stabbing her.” Karen stewart did not hara or hurt hin in

auy way. Uex height was about to bis eye level and he does not-belicve

he would have had any difficulty ir defending himself against her, 0

does recall making a statement to otecttve Cockman on the followin;

morning.

A “ajor, a Captain, ands First Lieutenant in defendont’s

S2ad Airborn Division testified tat defendant's general charactor “ue

reputation in the military comounity was "very good.” Sergeant Ailey

testified that his reputation was outstanding.“ Mra. Bergman saic

that in ner opinion defendant was inder the influence of alcohol ves

he wes at her hone on the night of Noveuber 22nd. ö

Sorgeant Kiley test if ie that wien he arrived at the bor mca

residence at 5:30 a. . * the miming of November 23rd he detected

no odor of alcohol on defendant ' | breath, but defendant did not rcs pore

to his questions and what ho sai} "did not make good sense. Defencint

told hin, in response to a diroc question, that he had had intiercouene

with iiss Stewart. However, he (id not mention ber having a knife; sur

did he gay anything about havin;; lost any portion of hig memory. rec

his dcmeanor was unusual, and bi seemed to be trying to recall tho evan

of the preceding night. oa

de. Charles Smith, an acceptod“ oxpert in psychiatry wio:.

defendant called as a wiysess, testified that he examined defendant —.1

2 March 1974, two ne the term of court at which he was teicd,

for two hours in thy s/eriff's office, In answer to a hypothetical

question based up a is examination of defondant and the agsumption tunc

defendant had 7 .tlicted the stab wounds found upon Miss Stewart's bi-/,

Dr. Smith toy ified that he was unable to form an opinion" ag to v. o

dofondant /.ould have been not conscious of what was transpiring at

—

—8—

tine he inflicted all or any of those wounds."

Upon a voir dire, in the absence of the jury, Dr. Suith

testifiod that defendant had givon hin a history of excessive cris:

12 followed by blackout Spells or periods of amnos ta. dasod uon Lacy

Rictory, which also included details of defendant's background, ce

dovolonont, and his life in more recent years, as well as Btatecnonis

irvoe defendant's family and friends, he had concluded that delondont

"is insecure, inadequate, and a chronically anxious porsoa who is very

pone to rebel and to make angry." It was his opinion that on 23 Novewvcer

1973 defendant becane patholovically intoxicated. Such intoxication is

“marked by a state of hyper-excitouent associated with aggress ivo

behavior and also always associatod with gone loss of recall for erat

tranepiring during the period because consciousness is disturted. vita

disturbed consciousness you have absence of recall.” In Dr. Smiti's

opinion defendant ig unable to recall what happened "in the totality of

wart wont on.“ He thought he had "ag fvagaentary recalling but tha: tiere

aro pertiong of it he does not have a clear recall for,”

In the presence ri the jury, counsel propounded the followias

question to Dr. Smith;

"De. Smith, based upon your exauwination and observation of er

“ay Bock, Jr., and further 17 the jury should find as a fact that at

S tine in the early morning of the 23rd of November, an altorcatioa

arose between Robert Gary Bock, Jr., and an individual identified as

candy, and thet sone tine after that altercation Robert Gary Bock, J..,

was driving an automobile down a dirt road, do you have an opinion 21

factory to yourself as to whethor or not Robert Gary Rock, Ir. Couic in

fact be unable to recall that interval between those two incidents?"

The State's objection to the foregoing question was sustained.

To thio suling defendant noted his exception No. 37. It permitted to

anower De. Saith would have said:

"It is my opinion that during the period between the onset ci

this altevcation and tho last stated evont in the hypothetical quesiic.

tue defendant entered into a state of pathological intoxication in whics

->

tise span.”

At the close of Bis evidouce defendant again woved 12

judgment of nonsuit. Whea this motion was donied defendant tense

justructions upon his right of self-defense,” which the court

declined to sive. ¥

Judge UucConnell instructed the jury to seturn one of fou.

yver@icts: Guilty of surder in the first degree, guilty of muck. ..

tao second degree, guilty of voluntary manslaughter, or not suis...

Jao jury's verdict was guilty of aurdor in the first doyree, i. . 2.2

ceateace of death imposed upon that verdict, defendant apperls +.

this Court.

Attorney General James Il, Carson, J., and Sidney 3.

Tag les, Jx., Assistant Attorney General, for the State.

W. S. Comer for defendant appellant.

Ea, chi JUSTICE: Defendant's first and last assi „men

of error (Nos. 1 and 19) are based upon the premise that capital!

mont is prohibited by U. 8. Const. amend. VIII and amend. I/, 3

21 is a contention which we have previously considered, and repr iteodiy

rojectcd. Furthes discussion would be merely repetitious. ‘ce Utsie

V. Waddell, 262 N. e. «31, 194 3.1. 2d 19 (1973); State v. Jarreiic,

284 N. c. G25, 202 8. k. 2d 721 (1974); State v. Fowler, 233 N. C..

203 38. F. 2d SOS (1974); State v. Crowder, 295 N. c. 42, 2033 ...

(1974); State v. Avery, 286 N. C. 439, 22 8. E. 2d 142 (3975).

Asgignments of error Nos, 2 and 7 are specifically abandonen ia

appellant's brief. ; 1 ‘

Assignment of error No. 3 relates to the manner in which

jury wis selected. During the process the State successfully cbs is.. oc

for cause ‘six jurors, each of whos stated that he or she would x»,

under any circumstances, vote for a verdict whieh would require i...

— of tae death sentence. Defendant coatends that he was

pacjudiced not only by “the exclusion of death-scrupled venireucn'

{so the panel but by their exclusion before he Bad an opportus.i, i.

cross-examine thea with reference to theis views on capital puis ......

Neitikeor of these contentions can be sustained.

-10-

Muaevous decisions of this Court have estrblished tat a -

y be successfully challenged for cause don, before the trial

Legus, BO is Arreparably committed to vote against the ponaalty «.

gouth. State v. Vinson, 287 K. C. 1 S. K. 2d (19.2,

State v. Fowler, 265 R. C. 90, 203 3. F. 24 C3 (1974); State v.

Larcis, 263 N. c. 46, 194 8. E. zu 796 (1973); State v. Anderson, 12

x. C. 262, 188 8. L. 2d 336 (1972). fee Witherdpoon v. Illinois, ov

U. 3. 510, 20 L. Za. 2d 776, 83 8. Ct. 1770 (19638).

_G. 8. 921(b) peovides in part: . . The State's char.,

peremptosy or for cause, wust be made before the juror is tenceccu cv

the defendant. . . ." The obvious purpose of this section is to

protect. defendants in criminal cases by giving thom the last ooo

to challeage a venirenan. Aa pointed out by Justice Branch in g Ve

Ig, 223 R. c. 46, 51. 194 8. 8.2 756, 799 (1973), "G. 8. 9420

provides a procedure for tue ordorly selection of jurors. Its et.cce

is tc give to the defendant the last opportunity to exercise 4.0 ++ u+

of challenge when the State had all pertinent information concer ss:

tho fitucss and competency of the jurar before he was tencovcd <> «..¥

docondant.“ To allow dvufense counsel to cross-examine a juro’ wey 6G

informed tho court and counsel that he is irrevocably committcd to

vote against any verdict which would result in a death sontenco vvu.u

thwart the protective purposes of G. 8. O-21(b). Further it woul. be

a purposeloss waste of valuable court time—a waste which the ju-/

goloct tou plan approved in State v. Perry, 277 K. c. 174, 17038.

729 (1970) was dosignod to eliminate.

Defendant rel 10 upon stato v. Britt, 285 M. C. 258, 24 „

817 (1974) to sustain his position on assignuent ko. 3. Theses

howovexs, has no application to the facts of this case. In..

trial judge refused to allow both counsel for defendant and 9

tor for the state to inquire iato the moral or religious Sccuplca,

vol los, and attitudes of tho prospoctive jurors concerning, Capatar

punishsent. Le also ruled taat no wention was to be made in tac .../'s

pfesonco of the fact that thoy wore trying a capital caso or taut ~.-

*

—11—

ata amn wigat be impowed upon their verdict. ro tas

* , a new terial, Tho decision im Pritt established tie -

of bute the solicitor and defense counsel to examine anz

user tendered t> hin for voir dire with reference to his ar

d capital punishwenat. The dofeadant in this case was aot ©

bute Fight. On tee contrary, as in State v. Perry, ur, “the: |. 22

o. seicction offered the defendant full opportunity to exercise 2.i

Lie constitutional rights. The panel selected did not conta

jusas to which he had objection. He fails to allege that ke ac

c muated Dig peremptory challongos.” Id. at 177-178, 176 2. 7.0

Vol. tent of error No. 3 is overruled.

Assigauoat of error No. 4 challenges the admissibility in «..

of five photographs of Miss stewart's body in different positions ss

jt lay in the sandpit area clad only in a sweater pulled above h-.

i@acls. Three of the picturos stowed, from different camern 9.

«uC tivo tracks om der left thigh; all showed same of the vound e

a ea inf listed upon her. These photographs were relevant ar

mtecial; they 4llustrated the tostimony of Billy Shaw, the dee

Wao ch upon the body om the morning of 23 November 1973 je

Coca who arrived at tho scone shortly afterwards. The jury

proporiy inatcucted that the photographs were admitted for the

purpose of illustrating tho testimony of the witnosses and not 2«

Sucstantive evidence, “Tho fact that a photograph depicts a ho... ,

Cena and revolting scene, indicating a vicious, calculated a. . o.

clucity, malice or lust, does not render the photograph daconpeten. iu

evideacs, whea properly authonticated as a correct portrayal of = tis...

0. .erved by and related by the witness who uses the photograph tu

iilustsate hie testimony.” State v. Atkinsoa, 278 U. C. 248, 31. --.

. d 241, 353 (1969). Seo State v. Porth, 269 K. c. 329, 12

12 (2007); State v. Sparks, 2U5 K. c. G31, 207 3. 1. 24 712 (1974):

2 ons“ R. c. Index 2d, geln ra Lew $8 42, 43 (1967); Stam. i. °s

* rc Carolina Pvidence § 34 (Drandis Rev. 1973). Assignment of <.. +.

No. 4 1 without merit,

3.0

— —

-1W-

Assignuzonts of error Nos. 8 and 12 are directed to the cou: i's

“failure to sustain defendant's motion for nonsuit, particularly ...

as to the charge of murder in the first do reo. In his Dr lot dre

daat says that these assigmaorcts present tho crucial question “wlheiice

the evidonce supports a finding by tho jury that the killings a |

With prasoditation and deliberatioa.” In his arguaeut under ass

mcat No. 13 defendant concodos that “he probably killed decoasod."

All the ovideoace, albeit circucstantial, lends to that conclusion.

Indoed, no other legitimate doduction arises,

As an argument that the evidonce will not support a india that

the killing was done with premeditation and deliberation dofendsan.

gays: "The crucial facts and circunstances immediately attendant is

tho death of tho doceased will remain unknown. . .. The concucc «2

the appellant before and after the houicide ig totally inconsisica:

with ficet degree murder. . .." The evidence does not Support ta

conclusion,

In this jurisdiction it 1s; wall established that "where one

forma a purpose to take the life of another and weighs this puspc_o 12

his wind long enough to form a f/.xod design or determination to kill

at a subsequent time, no matter lw soon or how late, and pursuaat

thereto kills, this would be a ki | ling with premeditation and cer icra-

tion and would be aurder in the fret degree.“ state v. Hart, 223

*. c. 200, 202, 37 8. r. 20 487, an (1046), State v. Buchanan, gar

. C. 408, . 3. . 24 (19/5).

As we said in State v. Van Landinchan, 383 K. c. 589, 589, 197

8. P. 24 539, 345 (1973): “Ordinar ly it is not possible to prove

premeditation and deliberation by direct evidence. These facts ust

be established dy proof of circum tances from which they may do inlerrcd.

Among the circumstances to be cor | idered in determining whethe. a 1411

ing was with premeditation and deliberation are: want of Pprovocetios

on the part of the deceazed; the uonduct of defendant before asd artes

tho killing; the use of grog ©:\»@ssive force, or the deal zag of

sethal blows after the dece:iod hz: been felled.”

Defendant's atatens , to Dotective Cockman and his tent ag at

-l13-

the trial s. ate adequate provocatioa for the Killiag. After ui...

stewart and defendant bad @ugaged in sexual relations for tio sc

tine she began “putting pfessure” on hia to pay her “for gerte

rencerei.” Le had no money~~although be bad represented Rise

Les aa A well-to-do landowaer--and an argument ensued. “She went .

lap Sim and he slapped her instead and knocked her to the ron.

he returned to the car and then saw her coming at him with hie „

huife, wiich welghed two pounds. Le says that he grabbed her a2

roncmvere nothing thereafter until he was driving from the are

in her car, which was also carrying his kaife, Defendant, a ban

Six fect tall, weighing 195 pounds, testified that Miss Ster:

barm or hurt bin ia any way; that her height was about to his % er,

and that he did aot believe he would have had any difficulty in dercn

ing himself? against her,

Coviously, by any standards, Misa Stewart's death was an

vanccescacy and senseless killing, md the 53 stab wounds, “some cu.ic

deep,” constituted "grossly excessive force." Furthermore, force ben

would have been lethal had Miss Stewart not already been dead was

applied when the autenobile was driven over her felled body. Wo bole

that the evidence was sufficient to take the sue of defendant's

quilt of first-degree murder to the jury. State v. Van Landingicu,

Supra, and cases cited therein.

, In Bis 13th assignment of error Cefendant asserts that the

trial judge erred in refusing to Give the jury the tolle lag cegucsicd

instruction: "Under certain circumstances, the killing ef anolice is

legally excusable. Defendant has offered evidence which tends to

that he acted in self-defense. The right to kill im self-defense 28

based on the necessity, real or apparent, to kill to save one's «21:

{rom death or great bodily harm. If, from the evidence, you belic.c

that dovendant killed the deceased and at the time he did so, ho

believed that he was in danger of death oF great bodily harm, thoa ils

Gefendant had the rizht to use suck fosce as e believed Beccessar,y to

protect himself, even to the ezteat of inflicting death. if execu... ve

; (13 “ATK E

212

„„ „ ins dosiecucaat guilty of feat cegree urdes, you but

youd & yonsonable couvt taat bo killed tie deceased with ..)-.9

and 1% = Oxecutson Of an netual cpucifsic intent to kiil, tler

tive’ peeueJatation aad delibeosation. If, as a senult of marca

eee ant cad not have that apeeliic zutcat to kill tha Cocos”)

Oem J ur percncdcitation aad celiberation, he ig mot guilty of 1. .¢

eres tor. never, you would cousicor tho other charges.”

Deleudint'’s contontzoa, Laced oa ata ancigauent No. 15, is tart tas

2 . b of this tastructioa mininixzed the importance of the evidon.o wonuH

tng to rb tint Le was drunk oa the aigat of Novenmbes S2ncd and tore tui

ovidesee vent to "the lize os death distinction between first and Coca

gr nir.“ Vata equal logic it could bo arguod taunt tho iszportacce

of the insteuction was eaphasized wien tho judge called the jury tac+

ca seceive it. We have noted that woon cord occur in addt ona!

juctructions requested by the jury, appoliants invariably argue = tio

beegudtctal efZect is compounded because the jury beard them at tor tio

charg? propor.

Lena the chargo is considered as a whole the instructions ga-.

upon the Ovidence teading to chow tint dotendant was intoxicated at tio

tice iiss Stewart vas killed were far uore favorable than be was cutsticd

to vecelve. Altkough defeadast does not judicially adait be l 11 Jics

Stevact, bo concedes he “probauly” did and assorta that, if be cid, so

was uneonscioug at the time and Sas no recolicction whatever of avant

dn 50. If defendaat was «actus ly. veaconscious, the only explanaiscs +a

t secod for his unconasciousucss is that it was produced by his voluats.)

sntcuication.

Ordinarily “[u]ncoasciousacss io a complete, not a partial, co.cnue

to a ceiuinal charge.” 21 . Jur.2d, Criminal Law § 29, p. 115 (2229

.o7 utate v. ercer, 275 N. C. 00. 103 3. K. 28 3283 (1909). Loweves, een

ucccenuciousness sesults zr voluntary @ounkenness it cannot lewd “tu 4

eaclele scquittal.” Pratt v. A. foe i. Ireland, 3 Ail . 3. 23.

—

22). If a person on terial for -der in the ziret degree wis oO oc.

ac 2% time he catsitted tho baiuctco charged in the indictnene Cane «2 60S

uttcsiy lacapablo of forming a colivceate and preueditatod inte to seal,

O

-14-

fosce ox unnecessary violonce is used in seli-dofense, however, tl:

kiilias of the adversary is wauslaughtor at least.”

Tue court correctly refused to give the foregoing instruct.va.

. it is not a correct statexent of the iaw, for it its the

requiscment that before one say kill in solf-defonse be must bave

reasonable grounds to believe that it is necessary to kill to proicct

Lbinself tro death or great bodily harm. State v. Jackson, 284 ii. C.

203, 200 . x. 2d 396 (1973); State v. dawley, 237 MW. c. 233, 74 2.7.26

620 (15.3). Second, as noted in the preceding discussion of tho

questioa of nonsuit, there is no evidence tending to show any necous-ty,

Leal of apparent, for defendant to kill 18 Stewart. She nevor =

bia in any way; da took the knife irom her by simply grabbing hes .

ry his ona statement he does not believe he would have had any ci.:..-

culty. in defending himself against her; yet 35 stab wounds were in. lectcd

upoa her nude body.

The record ig devoid of any evidence which would permit tie 22

to find that any one of the 55 stab wounds was inflicted in Self- es.

Tucther, the law does not permit one to use a deadly weapon to rook a

threatened simple assault by one whaa he has Gisarned and could cubc.o

without it. State v. Watkins, 263 M. c. 504, 106 8. . 24 750 (1974).

Aftes the jury had retired to consider its verdict, aud

boon out three minutes,” the solicitor requested the judge to n

the jucy with reference to the testimony of Mrs, Bergman and defccdcat

that he vas under the influence of alcohol during the night of No

22nd. Tue court cecaliod the jury and—as defendant concedes——c2-<cct2y

iustructed it in accordance with the principles stated in State v. 14607

od state v. Cuandler, 273 K. c. 674, 673, 174 8. f. 24 385, 337 (3470);

State v. Propst, 274 N. c. G2, 71-72, 161 8. C. 2d 560, 567 (i906).

Specifically, the Court iastructed:

„. „ „voluntary intoxication is not a legal excuse for being.

lover, if you find the dezendant wa intoxicated you will con

whethes this condition affected his ability to formulate the e2c--/+°

inteat which is required for conviction of first degree murder, 12 o-coe

KU

* . g

. —

16

eccential elemcats of murder in the first degree are absent and "it

is cazd that tue grade of the offence is reduced to murder in the

cecoad cogroe.'" State v. Buan, 283 M. c. 444, 458, 196 8. f. 2 777,

72S (1973). Notwithstanding, at defondant'’s request, in the body cr

his charge tie court instructed the jury as follows:

„. . IIIa all three of tho homicides which I have juct deficcc,

that is, first degreo zurdor, sccond degree murdor and manslauciicr,

intentional killing is one of the elezents. I instruct you that if

you find that the defendant killed the deceased the State must also

aatisty you beyond a reasonable doubt that the defendant was conccic 3

ot Hat tranaptroa at that time, before you could return a verdict cr

guilty of ony offense. If a person ig in fact unconscious at tac tice

ho ccounits an act which would otherwise be criminal, he is not ros pon

ble therefor. The absence of consciousacss not only precludes tho

©xisteace of any specific unental state, but also excludes tho —

lity of a voluntary act without which there can be no criminal liability.

Tho question of absence of consciousness is not to be confused with ic

cofcase of insanity. Defendant's conscious state and voluntary or

intcnotional actions are not matters which he must disprove, but care

elezcats of the offense which I have ¢efinod, and the burden remairs:

upoa the State to satisfy you of their existence beyond a Teasonablo

doubt...

Thus, without reference to its cause, or making any distinciicna

as to the effect of unconsciousncss caused by drunkenness upon tho dc. ccs

of homicide, the jury wore told to find dofendant innocent ot any Cc

of homicide unless the Stato sat fsziod thea beyond a reasonable douvi

that cofendant was conscious at the time tho hanicide was committcd.

Uzcousedousness caused by drunkenness cannot load to a complete acquittal.

The jury rejected both defendant's contention that ho was

unconscious at the time of Miss Stewart's death and that he was too

to have formed the specific intent to kill her. This rejection, bowers,

cannot be traced to any error ia the charge. Assigment No. 18 is Oro.

ruled.

Defendant's assignzent No. 11, based on his exception ie. S.,

is to the court's ruling which sustained the State's objection to tio

hypothetical question quoted on pago 7 of the preliminary statexnont o2

facts. On the basis of his two-hour exawination of defendant tvo Gays

before the tril, and upon the assumptions (1) that, on tho Bight u.

Stewart was killed, an altercation arose between her and Gefendeiant 224

(2) that sasetime thereafter defondant was @riving an autamobils down a

0

—

217

dict road, De. Smita ene asked whether, in bis opinion, defendant

“peobably in fact does not have complete recall of the events encci-

poscod witsin this time span.”

I. posnittod to answer de. th would have said that, a

Senta, curtag the @arly mocaing hours of November 23rd, deyen Jani

wes ip a state of pathological intoxication and "that he probably, „

fact, does not have complete recall for the events encompassed’ witsio

this time span.”

This testimony was properly excluded. Ia the first placo, tu»

facts assuced in the hypothetical question were obviously insufficic..

to onable Dr. Saith to form a satisfactory opinion. Todd v. Watis, 9

A. C. 417, 153 3. E. 2d 448 (1967); 1 Stansbury, N. C. Evidenco § 27

(Brandis ev., 1973). Patent ly, the doctor's opinion was based u, -s

@vidence which vas not included in the question, as woll as dpn:

wuich were not in evidence at all. The latter was defendant's ere

of excessive drinking followed by blackout spells or periods of si. _.a,

which the doctor obtained from defendant, his family and friends. . cv

over, neither Geofendant himself noc anyone else testiiied that L

such a history, Obvicusly, therefore, Dr. Smith's opinion was bard -a

major part upon hearsay evidence.

a hoe an expert Mtnegd testifies as to facts based uppen

personal knowledge, he may testify directly as to his opinion. Cen 21,

Lovever, an expert witness cannot base his opinion on hearsay evicccco.

And when the facts are not within the knowledge of the witness bi. «il,

the opinion of an expert must be upon facts supported by evidonce, wtated

in a proper hypothetical question. (Citations omitted).” Cogdill v.

Highway Comaission and Westfeldt v. Highway canis ion, 279 N. C. 512,

326, 162 8. E. 20 373, 381 (1971). The cpinion of a physician, howe. cr, ‘a

not ordinarily rendered inadmissible by the fact that it is based 217

or in part on statements made to hin by the patient, if those «t-' = “ts

are made in the course of professional treatment and with a vie”

effecting a cure, or during an exnminntion made for the purpo > o” tree t=

reat and cure. Penland v. Coal co., 246 K. c. 26, 31, 97 3. 2. 28 ,

436 (1957). Bee 1 Stansbury’s North Carolina Evidence § 130 (ang

S., 1973). Im such a situation it is roasonable to assune that 8

—

-18-

information which the patient gives the doctor will be the truth,

for self-interest requires it. Here, however, Dr. Smith did not

examine defendant for the purpose of treating him as a patient, but

tor the purpose of testifying as a witness for defendant in this caso

in which he is charged with first-degree murder. The motive which

ordinarily praupts a patient to tell his physician the truth is

absent here, The evidence was therefare incompetent and properly

e@xzcluced,

ö At this point we note that amnesia itself is no defense to a

criminal charge. That a defendant is subsequently unable to remen cx

is in itselz no proof of his mental condition at the tine the crixc

was conmitted, 21 Am. Jur.2d, Criminal Law § 30 (1965). Assignac.t of

ersor No. 11 is overruled.

Assignment of error No. 5, directed "to the admission of ccostain

testinony of the witness Billy Shaw, is patently without merit and

requires no digcussion. fee State v. Greene, 285 K. c. 482, 402-42,

208 8.E.2d4 229, 235-236 (1974); State v. Colgon, 3274 K. c. 295, 305,

163 8, . 24 376, 385 (1968).

Aasignnent Nu. 6, to the admission of "a certain statexont

allegedly made by dofendaat to Deputy Sheriff Cockman,” is also feckices.

Upon dotondant “s motion the judge conducted a voir dire to deteruine

its agaissibility, Only Sheriff Cockman testified. Upon his unconatva-

dicted testimony, the judge found that defendant's statement was voluv-

tarily made after he had been fully advised of his constitutional

rights and had understandingly waived them. These findings, being

supported by competent evidence, are conclusive. state v. Fox, 2771 K. C.

1, 24, 175 83. z. 2d 561, 575 (1970).

Assignments 9 and 10 relate to two questions directed to ces ca-

dant, ono on direct examination; the other, on cross-examination. Tho

court's rulings upon the objections were clearly correct and thece

assignacnta are overruled without discussion. For the sanc roasou

assignments of error nu dered 14, 15, 16, and 17, which challenge <..2

court's instructions on the elements of first-degree murder, soconJ-

do groe murder are 2e overruled.

19

Ve have considered the entire record in this Case, ap woli

as onch of defendant's assignments of error, with care COMRORL UNA.

with tho sentence fra which defendant appeals. In his trial cou

cvuviction we unanineusly find no exror, By a majority vote 4

ug sustains tle sentence of death. Far tho reasons stated in tu.

dissenting opinions in State v. Willians, 286 K. c. 422, 4411.

*. F. 2d 113, 121-125 (1975), Chief Justice Sharp, Justices Copel...

and Deum dissent trom that portion of this opinion affirming tie

imposition of the death sentencs and vote to remand for the uro

of a eentence of life imprisoment,

In the trial we find no error and sustain the death goal.

by majority vote.

No Frror.

12 or * . ' rr vad — 1 * — .

asPe wt Kc Ve LOCK „„ bbteomte ov +

LAN, JUSTICL, — iu result.

é Gusouv iu the result reached in the uajority Con

we ew tao Btatesents theroin concerning the defense of unccn:

een that Cunditioa is cue to voluntary drunbeunc ge.

aac burcon ci proving this colcnsc, like that of ise i:

„ Ueaenuaut. State Vv. Caddell, 207 e cu, 2

(aviv), Which cvorrul ed, ou has pint, State v. Mercer, i7.

ave bu 2d Suu, Cited zu tao ijajeriiy opinion upon a diitzur...

‘as «..sCudant has the burdca vos preuvyiag to the satisZactioa e

at he was uacouscious it the ti of the allegec cris.

ot. ‘boa, however, this act is sd cstablished, it is a co...

. te the criminal charce, what er may Lave Caused it,

Voluutary Gunkenness, per se, is, o:\ course, no deiense iv «

aal Charge. Uowever, thu mere ros action of one ww «.

~-tu.ily lost consciousness duc to thy; tot ot alcoiicl vi...

tn sald (i. ., one who has "passed elt. as distinguiche. -.

od ubisivy to under tand, to iatend, 10 te es as not the ba

jsabllity for a criwe requiring his viluntar)\act, Such c.

include tie lesser degrees of howicacd): as 011 N aurder a

ere. There le no evidence whatevils ef such nes

1

7120 ess case.