# Petition — Bock v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2062%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 903 ## Text ' 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 oo wo WS YS (§ RECEIVED — NOV 101975 OFFICE OF THE CLERK SUPREME COURT, U.S. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 eo &« @¢ © €&€ 8 € &-2.8 82 @ 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 eaeeeseeee#e&w#weweetwWe?e*@ 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 - 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2062%3A1. Public record. Not legal advice.