Petition — Spaulding v. North Carolina

RECCIVED |

ad (eB 2 1976

Orr ur OF Smt CitRK

SUPREME COURT OF THE UNITED STATES SUPREME COURT, US.

TERM, 1976

SHAH HHHHHHEEAAAHHEHHHHHHEHHHHHEREHE

45-6100

HEHEHE HHREREHEAAEAHHEHHHEHHEHHHHHHHHEEE

CARDELL SPAULDING,

JOE LEE COBB and

VERNON RICHARD WALTERS

Vv.

STATE OF NORTH CAROLINA

HEHEHE AHEAAAEEAHEBAHAKREREAAHAEAEREEHAEHEEE

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH CAROLINA

HERE HEHHKHHHRKREREE

pe Are Oey woe,

100 BECKER DRIVE

ROANOKE RAPIDS, NORTH CAROLINA 27870

TELEPHONE: (919) 537-3508

wy as PETITIONER SPAULDING

Maw XA fae

Ail F. DICKENS, JR.

105 WHITFIELD STREET

ENFIELD, NORTH CAROLINA BY

TELEPHONE: (919) 445-3632

ey PAY ae COBB

*

a { Cree 2

H. P. McCO¥, JR. /] 7

110 E. 10th STREE

SCOTLAND NECK, NORTH CAROLINA 27874

TELEPHONE: (919) 826-5121

ATTORNEY FOR PETITIONER WALTERS

INDEX

GHEREGR BONG c cc ccededcccececcsesocescceeses’ boeeccasedsersoncecoossetecveces

JUBIOSLSCIOR . co ccccccccccccvccceccecsececcecccs cenecesesceuesescosesceseocee

Questions Presented . oo. cccccccccccccccccccccccccceccccceseseeeeeececsecones

Constitutional and Statutory Provisions Involved......csccccesseeccceseseees

li it |) Serer rrrrrrr rr errrrrrrrr reer errrrrrrrrrrrerrrrrrerrr Terr rr errr rr eee

Reasons for Granting Che WEIC.cccccccccccceccccccecccccccccccecesccseecocese

1. The court should grant certiorari because this case presents

the fundamental question as to whether the imposition of the

death penalty under a state statute is a violation of the

United States Constitution as being a cruel or unusual punish-

ment which is specifically prevented by the Eighth and

Fourteenth Amendments......e.eeeeee- TEPePETELITITIC ETT TTT

2. The court should grant certiorari because this case presents

the fundamental question of whether the decision of the North

Carolina Supreme Court's reinstatement of the death penalty by

judicial decision following FURMAN V, GEORGIA, 408 U.S. 238

(1972), is an impermissible evasion of the FURMAN holding

thereby violating the Eighth and Fourteenth Amendment require-

ments of lawful criminal punishment... .ccccecccccsssccveseccvess

3. The court shall grant certiorari in this case because the

North Carolina Supreme Court in its decision admit§ that on

four separate times during the course of the trial, evidence

not admissible as against defendant Spaulding was admitted

and that"its admission clearly violated his right of confrontation

and cross-examinestion guaranteed by the Sixth and Fourteenth Amend-

ments to the Constitution of the Uniced States." Incriminating

statements as to defendants Walters and Cobb which were admitted

into evidence and ruled upon by the North Carolina Supreme Court

as harmless error should also be reviewed by this court......e4.:

a a rE eT oes ee er eT ree

APPENdix A... ccrccccsccccccreresccccrccesessesseses seers ese seeeesesesssseses

Motion for Leave to Proceed fin Pormera Pauperis.....c.cssecevesevesecsesece

Affidavit of INGIZeNCY.cccccccccrcccescccsessecreeseesesesssesseressesseess

GaPciLiasas GE GOCGLEH co oo6s cccesseecececsedesccavessedcceccagecsossesseacene

Page

ll

14

15

28

29

32

TABLE OF CASES

PAGES

FURMAN V GEORGIA, 408 U. S. 238, 92 S. Ct. 2726,

33 L. Ed. 2d 346, (1972) eeeeereeveeeeeeeeeeeeeeeeeeee 5,6,7,8,9,10

STATE V WADDELL, 282 N. C. 431, 194 S, E. 2d 19 (1973)... 5,7,9

BONIE V COLUMBIA, 378 U. S. 347, 84S. Ct. 1697,

12 L. Ed, 2d. 894 C19GA) cccccccccccecocecooceosoescs 7

FROST V CORPORATION COMMISSION, 278 U. S. 515,

eS ee Sg a Ee ee

UNITED STATES V JACKSON, 390 U. S. 570, 88 S. Ct. 1209,

20 L. Ed. 2d. 138 (1968) Sees ee ereeeeeeeeeeeeese®s 7

CHAMPLIN ROOFING COMPANY V COMMISSION, 286 U. S. 210,

52 F. Ct. 559, 76 L. Ed. 1062 .cccccccccccccccescces 8

STATE V WHALEN, 269 S. 2d. 678, 679 (1972) cccccocccecess 8

COMMONWEALTH V TRUESDALE, Pa., 296 A. 2d. 829 (1972) .... 9

STATE V JARRETTE, 284 N. C. 625, 202 S. E. 2d 721 (1974). 9

DELAWARE V DICKERSON, Del. Supr., 298 A. 2d. 761 (1972) . 9

BROWN V UNITED STATES, 411 U. S. 223, 36 L. Ed. 2d 208,

93 s. Ct. 15GS .cocccccccecccoseceoseceeesecoecscese 12

SCHNEBLE V FLORIDA, 405 U. S. 427, 31 L. Ed. 2d 340,

92 $s. ce. 1056 eeereeeeeseoeeee eee eee ee eee eeeeeeeaereae eae 12

CHAPMAN V CALIFORNIA, 386 U. S. 18, 17 L. Ed. 2d 705,

87 $s. Ct. 824 eeeeeeee ee eeee eee eee eeeaewe eee eaeeeeeeeee 12

STATUTES :

28 U. s. Cc. §1257 (3) eeereeeeer ee eee eeaeeeereeeeeneeeeaeeeeee l

NORTH CAROLINA GENERAL STATUTES:

§ 14-17 eeeeeeeeeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 1

§15-187 eee eee eee ee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 3

3

§15-188 SCHSSSSSSSESSESTSESSESEHSHEHESHEESHESHESHESHESHHEEHEEEEE

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 1976

75-6150

NO,

CARDELL SPAULDING,

JOE LEE COBB and

VERNON RICHARD WALTERS

V

STATE OF NORTH CAROLINA

FOI III III II I IIIT IA IIIA AAI IIA ISI SSI SAI ASSIA ISAS ISS AAAIAA.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH peraretnren

The Attorneys for the Petitioners pray that a Writ of Certiorari

issue cto review the order of the Supreme Court of North Carolina entere<

on November 5, 1975.

OPINION BELOW

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

N.C. » 219 S E 2d 178 (1975) and is set out in Appendix

A hereto, pp. 15 - 27 » infra.

JURISDICTION

The opinion of the Supreme Court of North Carolina was entered on

November 5, 1975. This Petition for Certiorari was filed within 90 days of

that date. The jurisdiction of this Court is involved under 28 U. S. C., § 1257

(3).

QUESTIONS PRESENTED

l. Does the imposition of the death penalty constitute cruel or unusual

punishment in violation of the Eighth and Fourteenth Amendments to the United

States Constitution?

2. Does the decision by the North Carolina Supreme Court reinstating

the death penalty by judicial decision following FURMAN v GEORGIA, 408 U. S.

238 (1972), constitute an impermissible invasion of the FURMAN holding thereby

violating the Eighth and Fourteenth Amendment requirements of lawful criminal

punishment?

3. Does the finding by the North Carolina Supreme Court that, on four

separate occasions during the trial below inadmissible evidence was introduced,

which evidence, in the opinion of the Court, clearly violated Petitioner Spaulding's

right of confrontation and cross examination as guaranteed by the Sixth and Fourteenth

Amendments, constitute reversible error and did that and similar evidence prejudice

the rights of Petitioners Cobb and Walters and constitute reversible error as to

them?

CONSTITUTIONAL AND SLATUTORY

PROVISIONS INVOLVED

ie his case involves the Eighth and Fourteenth Amendments to the Con-

stitution of the United States.

2. This case also involves the following provisions of the General Statutes

of North Carolina:

§ 14-17. Murder in the first and second degree defined; punishment. -

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

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

and premeditated killing, or which shall be committed in the perpetration

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

felony, shall be deemed to be murder in the first degree and shall be

punished with death: Provided, if at the time of rendering its verdict

in open court, the jury shall so recommend the punishment shall Le

imprisonment for life 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 shall be punished with imprisonment of not less

than two nor more than thirty years in the State's prison. 1/

i/ As construed in State v. Waddell, 282 N.C. 431, 194 S. E. 2d 19 (1973)

§ 15-187. Death by administration of lethal gas. - Death by

electrocution under sentence of law is hereby abolished and death

by the administration of lethal gas substituted therefor.

§ 15-188. 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 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

Cardell Spaulding, Joe Lee Cobb and Verncn Richard Walters were

charged in separate bills of indictment with the first degree murder of James

Thomas Griffiths on March 18, 1974, in Halifax County, North Carolina, under

North Carolina General Statutes § 14 - 17. All of the Petitioners and the

victim were inmates of Caledonia Prison on the date of the murder, The

trials of the three Petitioners were consolidated upon motion of the State

and over the objection of each Petitioner, which trial was held during the

November, 1974, Halifax County Superior Court Term, Each Petitioner entered

a plea of not guilty and none of the Petitioners testified in their own behalf.

The jury returned verdicts of guilty as charged in the indictments as to each

Petitioner and the Trial Judge imposed the death penalty upon each of the

Petitioners, to which the Petitioners entered objections based on the death

penalty being a cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments to the United States Constitution, The trial Court over-

ruled each of these objections,

The Petitioners gave notice of appeal in open court after the Trial

Judge imposed the death penalty, which appeal was perfected to the Supreme Court

of North Carolina. On November 5, 1975, the Supreme Court of North Carolina

affirmed the conviction of the Petitioners and found no error in the trial,

Attorneys for the undersigned Petitioners filed a request for a stay

of execution with the Supreme Court of North Carolina on November 20, 1975, which

was granted by the Supreme Court of North Carolina upon the condition that a

Petition for a Writ of Certiorari be filed in this cause with the United States

Supreme Court.

ASONS FOR

l.

THE COURT SHOULD GRANT CERTIORARI BECAUSE THIS CASE PRESENTS

THE FUNDAMENTAL QUESTION AS TO WHETHER THE IMPOSITION OF THE

DEATH PENALTY UNDER A STATE STATUTE IS A VIOLATION OF THE

UNITED STATES CONSTITUTION AS BEING A CRUEL OR UNUSUAL PUNISH-

MENT WHICH IS SPECIFICALLY PREVENTED BY THE EIGHTH AND

FOURTEENTH AMENDMENTS.

The Petitioners submit that this Court should grant Certiorari in

this case to consider directly the constitutionality of the death penalty. To

take the life of an individual as punishment for an act declared by law to be

a crime is to compound the tragedy of the event. The death penalty is an

end to all hope for the condemned for their rehabilitation. The rehabilitation

of criminal offenders has historically been a goal of our nation and individual

States,

The death penalty is not the most effective means for deterrents of

crime. This can be readily ascertained by the fact that in the State of North

Carolina alone there are one hundred three prisoners who have received sentences

of death as of 20 January, 1976. Their numbers continue to grow.

The last execution carried out under a judgment imposing the death

penalty in North Carolina was in 1962. Since then, public opinion against the

death penalty has increased to the point that the question of whether that

penalty is a violation of the United States Constitution must be decided. This

petition presents that opportunity.

5

-*

THE COURT SHOULD GRANT CERTIORARI BECAUSE THIS CASE PRESENTS

THE FUNDAMENTAL QUESTION OF WHETHER THE DECISION OF THE NORTH

CAROLINA SUPREME COURT'S REINSTATEMENT OF THE DEATH PENALTY BY

JUDICIAL DECISION FOLLOWING FURMAN V, GEORGIA, 408 U. S. 238

(1972), IS AN IMPERMISSIBLE EVASION OF THE FURMAN HOLDING

THEREBY VIOLATING THE EIGHTH AND FOURTEENTH AMENDMENT ne

MENTS OF LAWFUL CRIMINAL PUNISHMENT.

The Petitioners submit that this Court should grant Certiorari in

this case because of the significance of the question and because the States

are in disagreement as to the solution to this issue.

The murder for which defendants were convicted occurred on 18 March

1974, a date between 18 January 1973, the day of the decision in STATE V, WADDELL,

282 N. C. 431, 194 S,. E. 2d 19, in which a majority of four members of the North

Carolina Supreme Court interpreted the case of FURMAN V, GEORGIA, 408 U. S.

238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, (1972), and 8 April 1974, the day on

w ich the General Assembly rewrote G. S. 14 - 17 by the enactment of Chapter

1201 of the Session Laws of 1973. The Statute under which defendants were

charged, N. C. G. S. 14 - 17 reads as follows:

"Murder in the first and second degree defined: Punishment. -

A murder which shall be perpetrated by means of poison, lying

in wait, imprisonment, starving, torture, or by any other kind

of willful, deliberate and premeditated killing, or which shall

be committed in the perpetration or attempt to perpetrate any

arson, rape, robbery, burglary or other felony, shall be deemed

to be murder in the first degree and shall be punished with

death; provided, if at the time of rencering its verdict in

open Court, the jury shall so recommend, the punishment shall

be imprisonment for life in the State's prison, and the Court

shall so instruct the jury. ..."

Petitioners maintain that it was initially for the General Assembly

of North Carolina, rather than the Supreme Court of North Carolina, to determine

as a matter of policy, whether and under what circumstances the death sentence

should be reinstated in North Carolina after the holding by the Uniteec States

Supreme Court in FURMAN V, GEORGIA that statutes such as the one under which

these defendants were tried are constitutionally impermissible because, under

these statutes, the decision as to whether a defendant's punishment would be

imprisonment or death is left to the discretion of the jury, thus denying the

defendant Equal Protection of the laws.

Throughout these fifty states there are undoubtedly many defendants,

other than these three, who have been charged under statutes which were declared

unconstitutional by the Supreme Court of the United States when the decision

in FURMAN V. GEORGIA, Supra was handed down, The North Carolina Supreme Court

has riled, in agreement with the highest Courts ia the other States which have

Statutes giving to the Judge or the jury the discretion to impose a sentence of

life imprisonment or death, that the death penalty could not be constitutionally

imposed for offenses committed prior to the initial application of FURMAN by

the State Supreme Court to the existing statute. The State high courts have

agreed that, if a punishment, for murder, of life imprisonment or death were

changed to death alone, the latter penalty could hardly be applied to a

homicide committed before the change. The constitutional ban against the

increase of punishment has been held to apply against judicial as well as

legislative action. STATE V. WADDELL, Supra, BONIE V. COLUMBIA, 378 U. S.

347, 84S. Ct. 1697, 1. L. Ed. 2d 894 (1964).

However, the States are in disagreement as to the effect of FURMAN

on offenses committed after the first application of FURMAN to State law.

The Supreme Court of North Carolina has held that FURMAN merely prohibits the

elements of discretion inherent in the proviso to the North Carolina statute

which had allowed the jury to mercifully intervene and impose a sentence of

life imprisonment rather than the death penalty. The North Carolina Court

remedied this problem by striking the element of mercy and by leaving the

death penalty as the mandatory punishment. The four man majority reasoned

that the mercy proviso was added in 1949 to an existing statute providing for

mandatory death. They stated that although this deletion would broaden the

punitive effect, there was no violation of the ex post facto provisions of the

constitution because the severed portion had been previously added by way of

amendment and because the result was the same as the statute had read prior

to the amendment. Thus, the statute, after judicial action, embodied a policy

which had been accepted by the legislature at some point in time. The court

cited rkOST V. CORPORATION COMMISSION, 278 U. S. 515, 49 S. Ct. 235, 73 L. Ed.

483 (1929) dealing with an Oklahoma statute which required a special certificate

to operate a cotton gin, but which added by way of amendment a proviso excepting

gins operating as cooperatives. The Oklahoma Court's decision to strike this

proviso was upheld although the effect was to broaden the application of the

statute, The basis for this decision as stated was that the statute had

originally been enacted without the proviso by a prior legislature.

The North Carolina Court also referred to the case of UNITED STATES V.

JACKSON, 390 U. S, 570, 88 S. Ct. 1209, 20 L. Ed. 2d. 138 (1968) where the

-nited States Supreme Court severed and declared invalid a proviso of the

federal kidnapping act where the jury was allowed to recommend the death penalty

7I™“~

when the original statute provided for only life imprisonment. Note, however,

that this is a narrowing rather than a broadening of the statute's punitive

effect. The court quoted CHAMPLIN ROOFING COMPANY V. COMMISSION, 285 U. S.

210, 234, 52 F. Ct. 559, 76 L. Ed 1062, where it was held that the unconstitu-

tional parts of a statute do not defeat the constitutional parts unless it is

clear that the legislature would not have enacted the valid parts but for the

invalid parts. The question seems to be whether the provisions of the North

Carolina Statute and the statutes of other states embody an individual and

unified plan for punishment. Petitioners maintain that FURMAN did not purport

to delete, isolate, or invalidate any particular portion of these statutes.

FURMAN simply held that the death penalty provision under the statutes as now

constituted is invalid and that, absent amendment, no death sentence can be

constitutionally imposed and carried out.

Many states statutes similar to those of North Carolina involving

the death penalty have been reviewed and reconsidered since the FURMAN decision,

Ohio, Mississippi, Louisiana, Oklahoma, Illinois, Pennsylvania, Arkansas,

Washington, Virginia and Florida have said that under their statutes the death

penalty cannot be imposed. Many of these cases did not consider directly the

question of whether the court could eliminate the forbidden discretion and impose

a mandatory death penalty in future cases. However, as the former Chief Justice

Bobbitt and the present Chief Justice Sharp of the North Carolina Supreme Court

have pointed out, the language used in the cases has been very broad in scope

indicating that the death penalty could not be enacted under the statutes with-

out some legislative change. Chief Justice Roberts of the Supreme Court of

Florida said "This question concerning bifurcated trials is moot since at the

present time capital punishment may not be imposed. This court has held that

chere are currently no capital offenses in the State of Florida, If there is

no capital offense there can be no capital penalty. " STATE V. WHALEN, 269 S.

2d 678, 679 (1972). Thus, Florida has indicated that FURMAN ties the hands of

that court to impose the death penalty.

The Pennsylvania Court has also interpreted FURMAN as eliminating the

possibility of a death penalty in Pennsylvania under their current statute which

is similar to that of North Carolina. COMMONWEALTH V. TRUESDALE, Pa., 296A. 2d.

829 (1972). The Pennsylvania defendant Truesdale applied for bail after the

FURMAN decision, and the Pennsylvania Supreme Court held that there could be no

capital cases in Pennsylvania after the FURMAN decision under the current Penn-

Sylvania statutes which gave to the jury the discretion to determine whether

punishment should be death or life imprisonment. It would seem, therefore, that

the Florida and Pennsylvania courts agree with the dissenting members of the

North Carolina court in STATE V. WADDELL, Supra, and STATE V. JARRETTE, 284 N. C.

625, 202 S. E. 2d 721 (1974).

Consider, however, the Delaware decision in DELAWARE V, DICWFRSON, Del.

Supr., 298 A. 2d. 761 (1972). 11 Del. C, Section 571 provided that whoever

committed the crime of first degree murder as defined therein "shall suffer

death", 11 Del. C. Section 3901 provided: "In all cases where the penalty

for crimes prescribed by the laws of this State is death, if the jury, at the

time of rendering the verdict, recommends the defendant to the mercy of the court,

the court may, if it seems proper to do so, impose the sentence of life imprison-

ment instead of death", The Delaware Supreme Court held that the discretionary

mercy provision of 11 Del. C, Section 3901 are unconstitutional under FURMAN, but

that the mandatory death penalty prescribed in 11 Del, C. Section 571 is neverthe-

less constitutional. Former Chief Justice Bobbitt noted, however, in his

dissenting opinion in STATE V. JARRETTE, Supra, that at the time the opinion was

written there had been no decision of the Supreme Court of Delaware since FURMAN

which sustained the death sentence, It would seem, therefore, that North Carolina

and Delaware courts have determined that FURMAN does not necessarily invalidate

the death penalty under statutes which leaves the imposition of life imprisonment

or death to the discretion of the jury. However, Pennsylvania, Florida, and,

10

arguably, many cther states have held to the contrary that under these discre-

tionary statutes the death penalty can under no circumstances be imposed,

Because of this conflict among the states petitioners ask that the court grant

certiorari to determine whether the decision of the North Carolina Supreme Court

re-instating the death penalty is an impermissible evasion of the FURMAN holding

and whether such a re-ins’ itement of the death penalty by judicial decision

violates the Eighth and Fourteenth Amendment commands of lawfulness in crimi-

nal punishment. The trend today is to lessen the application of capital

punishment rather than to extend ic, and it would seem that the re-instatement

of the death penalty contradicts this trend and evades the spirit and essence

of the FURMAN holding. It is noteworthy that the State of North Carolina, with

its rather unique interpretation of FURMAN, is responsible for approximately one-

fourth of the inmates currently on death row throughout the nation. As the

members of the Supreme Court of North Carolina stand divided, the high courts

of the various states also disagree. The State Courts, these Petitioners, and

many other deathrow defendants look to this Court for guidance.

THE COURT SHOULD GRANT CERTIORARI IN THIS CASE BECAUSE THE

NORTH CAROLINA SUPREME COURT IN ITS DECISION ADMITS THAT

ON FOUR SEPARATE TIMES DURING THE COURSE OF THE TRIAL,

EVIDENCE NOT ADMISSIBLE Ag AGAINST DEFENDANT SPAULDING

WAS ADMITTED AND THAT "ITS ADMISSION CLEARLY VIOLATED ~

HIS RIGHT OF CONFRONTATION AND CROSS-EXAMINATION GUARAN-

TEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES," INCRIMINATING

STATEMENTS AS TO DEFENDANTS WALTERS AND COBB WHICH

WERE ADMITTED INTO EVIDENCE AND RULED UPON BY THE

NORTH CAROLINA SUPREME COURT AS HARMLESS ERROR SHOULD

ALSO BE REVIEWED BY THIS COURT,

The North Carolina Supreme Court summarized all the Defendants' contentions

of error in admitting evidence which they contended violated their constitutional

rights of confrontation and cross-examination as follows:

"Subsection A: In the early portion of the testimony of

the witness Sarakby, he related that in the presence of James

Cobb and the witnese that defendant Walter said, "We are going

to get him that so and so. We are going to get that Son of a

Bitch."' Whereupon Walters put a knife in his pants and left.

Cobb then put a knife in his shirt and said, "I won't let him

go alone. Stay there. Don't go anywhere." Only Cobb and

Walters were present when these statements were made to Sarakby.

Subsection B: The solicitor inquired whether Walters or Cobb

had told the witness why they were going to get James Griffiths.

The witness responded that Walters had told him that James Griffiths

had "told the man about the robbery they had on the week before."

The record does not disclose whether anyone was present other than

the witness and Walters on this occasion.

Subsection C: Walters stated to Sarakby "I want you to do

me a favor and to do Joe Cobb a favor... we don't want you talking

to no blacks whatsoever." The record does not show that anyone

was present at this time except the witness and Walters; however,

shortly thereafter the same admonition was repeated by Walters in

the presence of Cobb who did not comment.

Subsection D: The witness Sarakby testified that Cobb, covered

with blood, walked quickly back to the dormitory and at that time

the witness asked Cobb what happened. Cobb replied, "We got him,

he is dead, we killed him." The witness inquired "Where was it?"

and Cobb replied "In the library " At the same time, Cobb asked

the witness Sarakby to go help Walters. No one was present at this

time except Cobb and the witness.

Subsection E: The witness Sarakby further testified:

After neadcount Buckwheat (Walters), Joe Lee Cobb, Cardeil

Spaulding and me went to the game room and satat the same table.

There were more guys with us. Billy Spaulding told Joe Cobb,

"Joe, we got him, he is dead, we have killed him, so we ain't

got to worry about his talking, ain't nobody going to talk.”

$F — —

Vd

Q. All right, go ahead.

A. At this time, I turned around and asked Walter Vernon

(Walters), who was sitting to my right, if Billy Spaulding had

anything to do with the murder. He said, "Yes, he had, just

don't say anything about it, you know, we are not Supposed to

tell anybody about it."

Q. What else did he say"

A. He just said that Bill Spaulding---Billy Spaulding was

sitting on my left and he was talking to some other guys sitting

at the table over there. He said, "Keep your mouth shut, you

ain't seen nothing and you ain't heard nothing. We got him,

we killed him, and he is gone, so we ain't going to worry about

him no more." That is what he said.

Subsection F: The witness Lindsay, after testifying that

he saw Walters and Cobb beating on a man in the library, said

that shortly thereafter he observed Walters and Cobb and Spaulding,

followed by Sarakby, coming from the direction of the library. He

stated that Spaulding, Cobb and Walters were bloody and as they

passed by, Walters said, "We just killed a Goddamned man in the

library." At that time, all three defendants were together and

Cobb and Spaulding remained silent."

The Court in commenting on Spaulding's contentions that the admissions violated

his constitutional right of confrontation and cross-examination said: '"Wnen read con-

textually the statements summarized in Subsection A through D do not in any way implicate

Spaulding. The “we's" and "they's" seem to refer only to Cobb and Walters. Spaulding

is never mentioned by name,"

In overruling the State's contention of an implied admission the North Caro-

lina Supreme Court said:

"Implied admissions are received with great caution. However,

if the statement is made in a person's prec“ace by a person having

firsthand knowledge uader such circumstances that a denial would be

naturally expected if the statement were untrue and it is shown that

he was in position to hear and understand what was said and had the

opportunity to speak, then his silence or failure to deny renders the

statement admissible against him as an implied admission.” (Citations

omitted.)

The Court after all of the above findings of inadmissible evidence, then con-

cluded thac "the evidence which violated Spaulding's Sixth Amendment rights of con-

frontation and cross-examination was rendered harmless beyond a reasonable doubt."

Brown v. United States, 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 15€5; Schneble v.

Florida, 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056, Chapman v. California, 386

U.S. 18, 17 L. Ed. 2d. 705, 87 S. Ctr. 824.

The North Carolina Supreme Court's final decision was clearly in error.

To say that “.ur items of inadmissible evidence "clearly violated his right of con-

frontation and cross-examination guaranteed by the Sixth and Fourteenth Amendments to

the Constitution of the United States" but then rule that such evidence "was rendered

harmless beyond a reasonable doubt" is to completely ignore the entire constitution

and the rights of individuals.

We are not here dealing with the three defendants' rights to a fair or

perfect trial, but their right to live. It is not moral turpitude or a misdemeanor.

It is not right or wrong. It is life or death.

The jurors who passed on the guilt or innocence of the three defendants did

not have the legal training, years of experience and time and research that was available

to the members of the North Carolina Court. Their untrained minds were more easily

tarnished and prejudiced by the incompetent evidence presented to them on at least

four occasions. How many times would the North Carolina Court allow incompetent

evidence before it would find it "narmful error"?

The United States Supreme Court should set forth guidelines for this and

other cases, The death penalty may be cruel and unusual punishment, in many cases,

but it is even more so when the highest State Court finds highly prejudical and in-

admissible evidence was presented to the jury at least four times, but still leaves

Standing a death sentence.

CONCLUSION

For the foregoing reason, this Court is respectfully requested

to grant this Petition for Writ of Certiorari,

Respectfully submitted,

orn Lone ef Cra —

W. Lunsford C1

100 Becker Drive

Roanoke Rapids, North Carolina 27870

Telephone: (919) 537-3508

Attorney for Petitioner Spaulding

hw l Quibec

William F. Dickens,

105 Whitfield mod

Enfield, North Carolina 27823

Telephone: (919) 445-3632

Attorney for Petitioner Cobb

eo, J CRG <

H. P. McCoy, Jr. J) °A

110 E. 10th Street /

Scotland Neck, North Carolina 27874

Telephone: (919) 826-5121

Attorney for Petitioner Walters

APPENDIX A

STATE of North Carolina

v.

Cardeli SPAULDING et al.

No. 4.

Supreme Court of North Carolina.

Nov. 4, 1975.

Defendants were convicted in the Su-

perior Court, Halifax County, Robert D.

Rouse, Jr., J., of first-degree murder, and

they appealed. The Supreme Court,

Branch, J., held, inter alia, that it was not

prejudicial error to admit various state-

ments and admissions made by codefend-

ants, that the evidence supported defend-

ants’ convictions, that various evidentiary

rulings of the trial court were correct; and

that unposition of the death penalty was

not cruel and unusual punishment.

No error.

Sharp, C. J., and Copeland and Exum,

JJ., dissented as Lo death sentence and filed

separale opinions.

1. Criminal Law ©>407(2)

Whiic inpued admissions are received

with great caulion, if statement is made in

person's presence by person having first-

hand knowledge that denial would be natu-

rally expeetoed if statement were untrue

and itis shown tial he was in position to

hear and understand what was said and had

opportunity to speak, then his silence or

faiuure to deny renders statements admissi-

ble against hum as implied admission.

2. Cri simai Law &662(1)

Witnes.cs 266

Where evaiouce impleating codefend-

ual m consolidated murder prosecutions

was nol such as would be admissible as

joonst sua codefendant as implied admis-

sion, is adnusson violated codefendant's

ryght of confrontauion and cross-examina-

tion. USC.A Const. Amends. 6, 14; G.S.

§ 1h 142.

3. Criminal Law @1169.12

In view of probative value of other

competent evidence adinitted ayuinst code-

fendant in consolidated murder prosecu-

tions, admission of statements implicating

codefendant, although it violated codefend-

ant's rights of confrontation and cross-ex-

amination, was harmless error. US.C.A.

Const. Amends. 6, 14; GS. § 15-152.

4. Criminal Law @=407(2)

Where statements implicating code-

fendant in murder prosecution, admitted in

evidence during triai, were such that cude-

- fendant, being present when such state-

ments were allegedly made, would natural-

iy have Genied such statements if they were

untrue, evidence of such statements was

admissibice as impiied admission of code-

fendant.

5. Criminal Law @0662(i)

Witnesses 266

Where evidence of statements coneern-

ing codefendant, introduced in consolidated

murder prosecution, did not have effeet of

incriminating codefendant, their admission

did not violate codefendant’s rights of

cross-cxamination and confrontation. US.

C.A.Const. Amends. 6, 14; G.S. § 15-152.

6. Homicide e250

Kvidence supported conviction of prison

inmates for stabiing murder of fellow in-

mate

7. Criminal Law 675

in prosecution for stabbing murder of

prison inmate, witaess’ Geseripton of biood

surroundiag decedent's body wis admissible

despite contentions that Lestinony was rep-

eUlious.

8. Criminal Law C675

Aithough evidence of admiited fact

may sometimes be properly excluded, stipu-

lation as Lo cause of death may not be used

to prevent state from proving all essential

elements of its theory of case.

A-1F

* a8 4ee ds ahivea

%. Criminal Law 675

Trial judge im murder prosecution did

not err in allowing testimony of two physi-

cians as to cause of decedent's death, de-

spite facet that defendants were willing to

stipulate Liat death was caused by multiple

stab wounds, where tesumony had rele-

vance beyond facts to which defendants

were willing to stipulate in that evidence

Was competent to show use of different

instruments, thereby supporting inference

that wounds were inflicted by two or more

Persons.

10. liomicide @ 14(1)

Use of yrossly excessive force or deliv-

ering of iwthal blows after deceased has

been felled are among circumstances to be

considered in determining whether killing is

done with premeditation and deliberation.

ll. Criminal Law @=438(7)

in prosecution for murder of prison

inmate by stabbing, photographs illustrat-

ing experts’ Lesumony as to cause of death

were properly admitted over defendants’

objections that photographs would inflame

jury

12. Criminal Law @=45)(1)

Witness may state instantaneous con-

clusions of mind as to appearance, condi-

Len, Or Menta, or physical state of persons,

animals, and things, derived from observa-

uion of variety of facts presentlea lo senses

at one and the same time.

13. Criminal Law @=451(3)

in proseeution of prisoner inmates for

staviinye death of fellow inmate, witness’

deseripiion of one defendant, to effect that

“ne was bloody like he had been to a

sausthior,” was aimissible under “short-

hand statement of facts” exception to opin-

ai eViawnce Tue

It. Critunal Law c693

Axaynment of error directed to testi-

mony of wilacss was deemed waived where

defendants did net object to testimony ual

afier avswee bed been received, even

though grounds for objection were obvious

after question had been asked.

15. Witnesses <> 284

Defendants in murder prosecution were

not denied their right to full and fair cross-

examination by virtue of fact that state’s

wiiwess had first refused io answer several

questions pit him on ecross-examination,

where witness did freely respond to ques-

tions in further cross-examination and in-

significance of early refusals was highlight-

ed by failure of defense counsel to altempt

to “sift” witness.

16. Criminal Law 783% 1144.15

When motion to strike testimony is

granted, trial judge shouid instruct jury to

disregard stricken evidence; it is presumed

that jury will follow such instructions.

17. Criminal Law e753,

Trial judge in murder prosecution, in

instructing jury to disregard witness’ testi-

mony that one defendant looked “like he

had been to a hog niliing,” did not err in

“-pealing objected-to statement in exact

words of witness, since such repetition was

necessary so that jury would ciearly under-

stand portion of evidence which it should

not consider in reaching its verdict.

1s. Criminal Law 629

it is within diseretion of trial judge to

decide whether witness shail testify when

his name does not appear on jist of witness-

es which state elects to furnish defense

counsel prior to trial; judge's ruling will

not be reversed absent abuse of diseretion.

19. Criminal Law @62

Where witness is tendered who does

not appear on list of witnesses furnished

Gefense counsel by state, better practice is

for court, Sefore ruling on admissibility of

witness’ Leslimony, to interrogate jurors as

to their reiationship with tendered witness.

20. Criminal Law @ 1166(11)

Defendants in murder prosecuuon were

not prejudiced by court's action in allowing

stite te pr sent witnesses Whose names had

Agt Hoek furnished to defense counse| pror

lo jury seke tion where testimony given by

coeh witne oes dial not relate to essential

elements of erme charged, but only to dis-

covery of and chain of custody as to certain

exhiits GS. & 15A 903.

21. Witnesses @@ 349

Witness may be cross-examined by ask-

ys dusparagings questions concerning collat-

eral matter relating to his eruninal or de-

jing, Conduct, however, questions must

be asked by solicitor in good faith.

22. Witnesses > 267

* Lamits of proper eross-examination are

largely within discretion of Unal judge, and

his rulings thereon will not be held to be

error in absence of showing that jury ver-

dict was unproperly influenced thereby.

25. Criminal Law @1170'A(2)

Where solicitor’s cross-examination of

witness by asking about wilness’ parlicipa-

tion ia alleged price crime concerned matter

collateral to murder prosecution im whieh

cross-eXamination took piace, witness’ nega-

tive answer was conclusive and rendered

queslion harmMicss.

24. Criminal Law @=633(1), 11521)

It is duty of trial judge, in exercise of

its discretion, to reguiate conduct and

course of busmess during trial; exercise of

tins Loeretion will not be reviewed absent

showing of abuse of diseretion.

25. Criminal Law C6550)

Trial judge in murder prosecution did

not abuse discretion in permitting use of

wines proon puaras and allowing presence

of armed offiecrs in ana around courthouse

aud i presence of jury during course of

murder trai where defendants were prison

inmates and many of the witnesses were

persons convicted of murder and other felo-

nw

26. Criminal Law © 1215

Imposition of death penalty on prison

inmates convicted of murder of feilow in-

mate did not constitute cruel or unusuai

punishment. US.C.A-Coust Amends. 8, 14.

— ee

Defendants Cardeli Spaulding (Spauld-

ing), Joe Lee Cobb (Cobb) and Vernon Rich-

ard Walters (Walters) were charged in sep-

arate bills of indictment with the first-de-

gree murder of James Thomas Gniffiths on

the 18th day of March 19/4. Waiters was

also referred to in Ue record as “ibuck-

wheat” and “Waiter Vernon.” The charges

were consolidated for trial upon motion of

the State and over the objection of each

defendant. After being duly arraigned,

each defendant entered a plea of not guilty.

The State's evidence tended to show that

on the 18th day of Maren at about 6:40 p.

m. a custadial officer at Caledonia Prison

Farm discovered the body ef James Thomas

Griffiths lying in a pool of blood in the

prison library. The offwer observed nu-

merous stabs and cuts upon Griffiths’ bony.

Griffiths was carried to the Scotland Neck

Community Hospital where Dr. G. V. By-

rum conducted an examination. Dr. Byrum

testified that his examination disclosed tnat

Griffiths died as a result of multiple stab

wounds in the chest and abdomen. He

found more than forty different wounds on

the body. Dr. Joseph H. Harmon, a patnol-

ogisi who conducted a post-mortem ckami-

nation, confirmed Dr. Byrum’s conclusion as

to the cause of death.

The State relied heavily upon the testi-

mony of Sharif Sarakby and Haywood

Lindsay who were prisoners at C aledonia

Prison Farm on 18 March 1974.

Sarakby testified that on 15 March 1974

he was in the Prison Farm dormitory waen

Walters left the dormitory armed with a

knife avowing’ Lhat he was young to “wet”

Thomas Grifiiihs because, accordmg wo

Walters, he had told a prison guard that

“they” were connected with @ prison rob-

very. Cobb, also armed with a knife, short-

ly thereafter left the dormitory after indi-

A-l?

.

cating he was pou to join Walters. The

Wiiness ialer saw Cobb and Walters and

they were beth covered with blood. He

helped Walters remove and dispose of idea-

tifving patches from his bioody clothes.

While he was per/orming this task, defend-

ant Spauliinye entered the room His

“messea up,” but the witness

did not observe any biood on Spauiding’s

clothes.

clothes were

liaywood Lindsay, in essence, testified

that shertly afer supper he saw Walters

and Cobl in the prison library. They were

“bent over beating oa a guy .

The witness left the vieinity of the library

and a short me thereafter he saw defend-

ant Spaulding who “had bleed all over

him.” lle related that Spaulding pushed

him over as he went by and that Spaulding

was followed by Walters, Cobb and Sarakby

m that order. Cobb and Walters were

blowly. Waiters tried to stab him with a

shank (a homemade kmfe), but made no

further efforts after Sarakby pleaded for

no further vieience.

George Marshall testified that on 18

Maren 1974, at alwut 10:30 p. m., ne found

Mate’s Exhitnt 10, identified as trousers

boionging lo Wasters and State's Exhibit 5,

kote denulied as belonging to Waiters,

moa trash can in the hallway near the

canteen. dle also found other items of

collung, (Wo knives and lwo name tags and

“to the best of his knowledge” one of the

name tags bore the name Sarakby. Ail of

these items were given to §.B.1. Agent

McMahan

irvin Eugene Warrick, a maintenance

sus rviser at Caledonia Prison during the

yeur 1U74, tesiified that on the iSth, 1th or

20h of Mareh he found a pair of eut-up

pants and # name tag bearing the name

Spaukioge in the sewer line. These items

were aeoverod to DBL. Agent MeMahan

tue ale oTTeren Lie testimony of 5.38.1.

Ajoont Me Mahan for he purpose of corrole-

rating, Un testimony of Sarakby and Lind-

say and for the purpose of showing chain of

custody of certain exhibits

There was further evaience that Grif-

fiths’ bleud type Was O and Laat Waiters’

kaifle, State's Exhibit 5, had blo on it but

there was not a sufficient amount to identi-

fy the type. Examination of Vernon Wal-

lees” identification pateh reveaed Type O

blood. Tests performed on Waiters’ pants,

sturt amt siwes, State's Exhibits 11, 13, and

12, estalnished the presence of Type O

blood. Examination of Exhibsts i4 and 15,

Cobb's shoes and shurt, also disclused Type

O bicexd.

None of the defendants cestufied but of-

fered evuience tending, to show that each of

tnem was either on the basketball court or

in Cell Biock 2-A playing poker in the

presence of other inmates. Cobb also

presented evidence to show thal a cut on ais

left umiex Slayer was a resuit of an accident

whieh occurred in the laundry room on the

day of the killing. Walters offered evi-

dence to show that a cut found on his eg

occurred Wiuie he was working with a shov-

el on Ue prison farm

The jury returned verdicts of juilty as

charged in the indictments as to each de-

fendant. Defendants appealed.

Atty. Gen. Rufus L. Edmisten by Asst.

Aity. Gen. Lester V. Chalmers, Jy, Raleigh,

for the State.

W. Luusford Crew, Roanoke Rapids, for

defendani-appeliant Spaulaing.

Wiil.am FP. Dickens, Jr., Enfiewl, for de-

fendant-appeiiant Cobb.

H. P. MeCoy, Jr, Scotian Neck, for de-

fendant-appellant Walters. _

BRANCii, Justice.

Defendants assign as error Une ruling of

the Uial judge allowing the cases to be

consolidated Jor inal. Rach del ndaal con-

tetean cae MS COMSLULOnAl mgat of con-

frowlalen and CMs Xalnalon as guar-

anteeu by the Sith Amendment to the

United States Constitution was Violated by

the recepion of evidence of aumussions by

one of tus codefendants which inplicated

hen om the croume charged which evidence

‘wae inadmissitve apgvaun-t him

The trial padge may, in his diseretion,

order the conseudation for tral of two or

more inlictments in which the defendants

are charged with erumes of the same class

when the eriees are so connected in me or

place that evidence at trial of one of the

inietments will ie competent and admiss:-

ble at the trial of the others. GS. 15 152;

State v. Parker, 271 NC. 414, 156 3.B2d

G77; State © Hamilton, 264 N.C. 277, Mi

S 6.26 iG, cert. dened, 584 US. 1020, 86

SCL. 1406, 16 iP 2d 1044, State v. Mor-

row, 262 NC 502, 198 S.E.2d 245, State v.

White, 26 NC. 244, 123 S.6.2d 48. We

are advertent to the repeal of GS. 15-152,

effective 1 July 1975. The repealing act is

applicaine to ail criminal proceedings begun

on or after that date. NC Sess.Laws ch.

1286 (1973). This trial was held before the

effective date of tis repeanngs iegisiation,

rior to the deemion in Bruton v. United

Slates, 39) US. 123, 8&8 S.Ct. 1620, 2

|. Ed 2d 476, the general rule was that the

aimicsion of extrajpudwial confessions of

one codefemiant, even Uhough it implicated

another ayaimst whom it was imadmissible,

was proper when Une Unal judge instructed

the jury that the evidence was admitted

oniy against the defendant making the con-

fession and must not be considered by the

jury im any manner in determining the

charge against his codefendant(s). State v.

Lyneh, 266 N.C. S84, 146 S$.B.2d 677, State

vo Taborn, 208 NC. 445, 150 S.E.2d 779;

State vo Arnold, 258 N.C. 563, 129 S.E.2d

229, rev'd on oller grounds, 376 U.S. 773, 84

SC WZ, 12 Led zd 77 The decision in

Bruton complicated joint trials. The es-

sence of the hokimg in Bruton is that the

admison of a confession implicating a ¢o-

defendant violates the non-confessing de-

feodant’s Sixth Amenament rights of con-

froniation and cross-e\aminablion uniess the

confessor lakes tae Slaad so as to be sub-

jected to CTUss-C VAM Hallion,

The landinark North Carolina case inter-

preting Bruion is State v. Fox, 274 N.C.

277. 163 SB.2d 492. There Justice Sharp

(now Chief Jusuce) speaking for the Court

stated:

[ijn joint trials of defendants it

is necessary to exclude extrajwiicial con-

fessions unless aii portions which unpli-

cate defendants other than the declarant

can be deleted wiiheul prejuhee einer to

the State or the declarant. If such dele-

tion is Hot possuble, Lhe Suale must choose

between relinquishing the confession or

trying the defendants separately. The

foregoing pronouncement presupposes (1)

that the confession is inadmussible as to

the codefendant (see State v. Bryant, su-

pra (20 NO. 115, 108 S.B.2d 128), and

(2) that the declarant will not taxe the

stand. if the declarant can be cross-ex-

amined, a codefendant has been accorded

his right to confrontation. See State v.

Kerley, supra, 246 NC. 157, at WO, 97

S.E.2d 876, at 879.

Accord: State v. Parrish, 275 N.C. @, 165

S.E.2d 230; State v. Williams, 275 N.C. 77,

165 S.E.2d 481, State v. Conrad, 275 NC.

342, 168 S.E.2d 39. We note parenthetically

that the majority of our cases interpreting

the Brutoa ruie refer to in-eustody con/es-

sions; however, the rule as stated in Bru-

ton and Fox applies with equa: force to

admissions by 4 defendant which implicate

another against whom the evicence i inad-

missible. State v. Jones, 230 N.C. 322, 185

S.E.2d 858; Bruton v. U. S., supra; 2 Stans-

bury’s N.C. Evidence, § 182, pp. 62-68

(Brandis Rev. 1973).

Obviously some of the siatements chal-

lenged by defendants offend the Bruton

ale and constitute prejudicial error uniess

the statements are competent against the

nondeciaranis or unless the lola! evidence is

so overwhelming that the erroneous admis-

sion is harmiess beyond a reasonabie Guubt.

State v. Davis and State v. Fish, 4 NC.

701, 202 S.E.2d 770.

In order to avoid repetition as we con-

sider each respective defendant's conten-

tions under this assignment of error, we

summarize the portions of the record con-

Cite as 218 5.2.20 17h

Launing admitted evidence which defendants

contend Violaced User constitutional riyghts

of confrontauien and eross-examination:

Subsection A: In the early portion of the

testimony of the witness Sarakby, he relat-

ed Lat m the presence of James Cotb and

the winess that defendant Walters said,

“We are gouge to get him, that so and so.

We are going to get that Soa of a Bitch.”

Whereupon Waiters put a knife in his pants

amd left. Cobi teen put a knife in his shirt

and ad, “I wen't let him go alone. Stay

there Don't yo anywhere.” Only Cobb

«al Wailers were present when these state-

ments were made to Sarakby.

Subsection B: The solicitor inquired

whether Waiters or Cobb had told the wit-

ness why they were going to get James

Griffiths. The witness responded that Wal-

ters had tokl hun that James Griffiths had

“told the man about the robbery they had

on tie week before.” The record does not

disclose Whether anyone was present other

than the witness an’ Walters on this occa-

sion.

Subsection C: Walters stated to Sarakby

“| want you to do me a favor and to do Joe

Cobb a favor we don’t want you

taking to no blacks whatsoever.” The

record does not show that anyone was

present at this me except the witness and

Walicrs, however, shortiy thereafter the

same adwenition was repeated by Waivers

in the presence of Cobb who did not com

ment.

Subsection : The witness Sarakby testi-

fied tnat Cobl, covered with bloou, walked

quitiiy haek to the dormitery and at that

ume the witness osked Cobb what Naje

pened. Cob replied, “We got him, he is

deau, we hiled him.” The Wilfess inquired

“Where was i?" and Cobb rephed “In the

brary.” At Che same Ume, Cobb asked the

Wituess Sarakoy to go help Walters. No

om Was present at this time except Cobb

and the wilness.

Sulsection E: The witness Sarakby fur-

ther testified

After headcount Buckwheat | Walters),

Joe Lee Cobb, Cardelli Spaulding and me

went to the game room and sat al the

same table. There were more guys with

us. Billy Spaukling told Joe Cobb, “Joe,

we got him, he is dead, we have killed

him, so we ain’t got ww worry about his

talking, ain’t nobody going to talk.”

Q. All right, go ahead.

A. At this time, I] turned around and

asked Walter Vernon {Walters}, who was

sitting to my ryht, if Billy Spauuing had

anything to do with the murder. He

said, “Yes, he had, just don't say any-

thing about it, you know, we are not

supposed to tell anybody about it.”

Q. What else did he say?

A. He just sani that Billy Spauiding—

Billy Spaulding was sitting on my ieft

and he was talking to some other buys

sitting at the table over there. He said,

“Keep your mouth shut, you ain't seen

nothing and you ain't heard nothing. We

got him, we killed him, and ne is gone, so

we ain't going to worry about him no

more.” That is what he said.

Subsection F: The witness Lindsay, after

testifying that he saw Walters and Cobb

beating on a man ia the library, said that

shortly thereafter he oicerved Walters and

Cobb and Spaulding, followed by Sarakby,

coming from tne direction of te library.

He siated that Spaulding, Cobb and Wal-

ters were bioody and as they passed by,

Walters said, “We just Kilied a Goddamned

man in the library.” At that time, ail three

defendants were togethers and Cobb and

Spauiang remained sileat.

We first conswer whether the admission

into evadence of ihese various stalements

atid admissions of other caicfendanis vio-

lated defendant Spaulding’s constitutional

right of confrontauca and cross-examiia-

tion. When read contextually the state-

ments summarized in Subsections A

through D do not in any way implicate

Spausding. The “we's” and “they's” seem

to refer oniy to Cobb and Walters. Spauld-

img is Never mentioned by name. See State

20

vy. Jones, 20 NA. 322, 185 S.E.2d 85a.

Hokever, in a later poruion of the testimo-

ny of the witness Sarakby the record shows

that Walters made a statement implicating

Spaukling while Spauchiay, Cobb and Wal-

ters were sitting at a Ueble in the game

room. The cireumstances under which this

statement was made are fully set forth in

Subsection Kh. The State lakes the position

that the Bruton cu'e does not apply because

the evidence was admissible as an imphed

admission since Spaukdinag was present and

fatied to deny any complicity in the murder.

{1,2] Implied admissions are received

with great caution iiewever, if the state-

ment is made in a person's presence by a

person having firsthand knowledge under

such circumstances that a denial would be

naturally expected if the statement were

untrue and it is shown that he was in

position to hear and understand what was

svid and bad the opportunity to speak, then

ius silence or failure to deny renders the

statement admiswbie against him as an im-

pled aden sion J Stansbury’s N.C. Evi-

deace, & VO, p. 50 (Brandis Rev. 1973).

State vo Moore, 262 NC. 438i, 137 S.B.2d

iZ, State v. Guffey, 261 N.C. 322, 134

Shvd 619; State vo Bryant, 235 N.C. 420,

TS 2d 186, ane State v. Wilson, 205 N.C.

“lo, ITA SB. 388. it is true that the state-

peut unpleating defendant Spaulding was

marie in his presence, bul it Was not shown

that he was mm a position to hear or under-

stand the statement made by Waiters. In

fact, the State's evidence shows that at the

time Statement wis Dade, Spauiding was

“talking lo sume over guys sitting at the

table over there” A denial could not be

exoectod under these circumstances and

tos eviiendce Was Nol admussine a5 an IM

wed ndimassien Since Lhe evidence was

essmescabele to Spaulung, its admis-

wn Cheany Venaled fis rignt of confronta-

wm and Cros-examination guaranteed by

we Sixth ona Fourteenth Amendments to

the Constitulon of the United States.

There remains, nevertheless, ine question of

whether the erroneous admission of this

evidence was harmicss error beyond a rea-

sonable doubt.

In State v. Jones, supra, Chief Justice

Bobbit: wrote:

[lja each case the prejudicial

impact of tesumeny of out-of-court decla-

rations of a codefendant, even when the

right to confrontation is afforded, must

be evaluated in the int of the compe-

tent admitted evidence ayainst the non-

declarant defendant referred to in such

deciarations. We do not foreclose tre

possibility that the gap between the im-

pact of evidence which is not admitted

against but incriminates the nondeciarant

and of competent evidence of minimal

probative value admitted against him ina

given case may be so great as to consti-

tute a denial of due process. No such gap

exists in the present case.

Here the weight of the evidence erroncous- “

ly admitted against Spaulding must be

evaluated in light of the competent evi-

dence admitted against him.

in essence, the competent evidence

against Spaulding was an follows: The wit-

ness Sarakiy stated that he heard Spauld-

ing tell Cobb “Joe, we got him, he is dead,

we have killed him, so we ain't got lo worry

about him taiking, ain't nobody gomg to

talk.” The witness Lindsay saw Spaulding

in the haliway shortly after he saw Cobb

and Walters beating a man in the library

and at that time Spaulding had bleod all

over him. Cobb and Waiters were behind

Spaulding and both of them were cove red

with blood. The witness Lindsay heard

Waiters, in the presence of Spauliag, state

“We just kilied a Goddamned man in the

library.” Spaulding made no denial or ex-

planation as to this slatement. Thereafter

Spaulding’s name tag was found with some

cul-up trousers im a sewer line.

{3} When we evaluate the probative vai-

ve of the competent evieence admitted

against Spaulding as compared to the ad-

missions of other codefendants admitted

into evidence which were not competent

against him, we conciude that the evidence

———-— oOo

,°

i

=

uoh Vielated Spaulding’s Sixth Amend-

ment ricits of confrontation and cross-ex-

amination was rendered harmless beyond a

resconalie doubt. Brown v. United States,

11 US 224, 95 S Ct. 1565, 36 L.Ed.2d 208;

Sehoeble v. Florida, 405 US. 427, 92 S.Ct.

W546, 31 Ld. 2d 40; Chapman v. Califor-

nt, S86 US. 18, 87 S.Ct. 824, 17 L.Ed 2d

=,"

athe.

We next consider whether there was

prejudiewl error as to defendant Walters in

} the «dmssion of the statements challenged

by this assignment of error.

““|4] The record discloses that defendant

Walters was present under such cireum-

stances that a denial would be naturally

eapected if the statement made was untrue

when the statements summarized in Sub-

sections A, B, C and E were made. Thus

ius stlenee under the’ circumstances shown

by the record amounted to implied admis-

sons and Lhis evidence was competent as to

hum. Waiters was not present when Cobb

made the admission set out in Subsection D

to the effeet Liat “We got him

We killed him. He's dead.” Neither was

he present whea Cobb toid Sarakby “to go

help Waiter Vernon.” These admissions

were received in violation of Walters’ con-

stitutional rights of confrontation and

However, the State

presented competent evidence tending to

show that: (1) Wailers was seen beating a

man in the lhiwary shortiy before Griffiths’

bioody body was discovered, (2) he was seen

covered with bieod near the scene of the

hii and at that time declared “We have

just wud a Goddamned man in the ii-

brary.” (3) shortly before the body of Grif-

fiths was deseovered Walters declared he

“was joing te yet that $.0.B.”

‘Joe mae of evidence against defendant

Walters was no great that any incrimina-

ion ov the statements of his codefendants

was renderca harnuess beyond a reasonable

Cross-eXCAMiNauen,

thertaae

{5} Finally, we consider the admission of

ite Chalenged statements as to defendant

Coob. The ony _gliatements which tend to

violate Cobb's constituuional rights to _con-

‘Trontation and crass-examination are con-

tained in Subsections B and C. In connec-

tion with the statements ict. 1. Subsee-

tion B, the record indicates only that Wal-

ters was mad with Grifliths because he had

toid the man about (he robbery they had on

the week before. Cobb was not named as

one participating in the robbery or as hav-

ing a grudge against Griffiths. Nowhere in

the record was there anything which con-

nects this slatement with Cobb. We do not

think that Cobb was incriminated by the

statements contained in Subsection B. The

remaining statement which might have vio-

lated the Bruton rule as to Cobb, at mosi,

implied that Cobb and Walters had some

criminal pians. Even if we concede, which

we do not, that these statements did impli-

cate Cobb, the overwhelming evidence

against him convinces us that the admission

of such evidence was harmiess error beyond

a reasonabie doubt. Competent evidence

against Cobb tends to show the following:

Cobb was identified by an eyewitness as

one of Lhe men he saw beating on a maa in

the library a short time before Griffiths’

bloody vody was discovered. Cobb, armed

with a knife, stated that he was going to

join Waiters immediately alter Walters left

his presence after saying, “We are going to

get that $.0.B." Coub was seen near the

libvary covered with biood a short time

before the discovery of Griffiths’ bedy.

While washing blo from his person, he

iold Sarakby “We jot him, he is dead. We

killed him.” He aiso directed Sarakby to go

and help the bloody Waiters.

For the reasons stated, we hold that ‘the

trial judye did not err when he allowed the

State's motion to consolidate the cases for

triai.

[6] Each defendant contends that the

trial jude erred in overruling nis motions

for judment as of noasuil at the conclusion

of the State’s evidence and at the conclu-

sion of ail of the evidence.

The rules governing consideration of the

evidence upon a motion for judgment as of

qa

- nonwuit and the sufficiency of the evidence

fo Withstand such motion are clearly stated

by Juste Lake in the case of State v.

Vestal, 278 N.C. 561, 180 S.E.2d 755, as

follows:

Upon the defendant's motion for judy-

ment of nonsuit in a criminal action, the

question for the court is whether there is

subsiantial evidence of each essential ele-

ment of the offense charged, or of a

lesser offense included therein, and of the

defendant's being ‘he perpetrator of such

offense. If se, the motion is properly

denied in making this determination,

the evidence must be consuiered in the

lycht most favorable to Uhe State and the

State is entitled to the benefit of every

reasonable inference to be drawn from it.

Contradictions and diserepancies in the

testumony of Uhe State's wilnesses are to

be resolved by the jury and, for the pur-

pose of this motion, they are to be

deemed by the court as if resolved in

favor of the State. In determining such

metion, incompetent evidence which has

been admitted must be considered as if it

were competent. (Citations omitted.)

The test of the sufficiency of the evi-

dence to withstand the motion for judg-

ment of nonsuil is the same whether the

evidence is circumstantial, direet, or both.

There is substantial evidence of each ele-

ment of the offense charged, or of a

lesser offense included therein, and of the

identity of the defendant as the perpetra-

tor of it if, but only if, interpreting the

evidence ip accordance with the forego-

ing rule, the jury could draw a reasonable

inference of each such fact from the evi-

if, on the other hand, the evi-

dence so considered, together with all

reasonable inferences to be drawn there-

from, raises no more (han a suspicion or a

either that the offense

charred in the indictment, or a lesser

offense incluued therein, has been com-

astted or that We defendant committed

it, the ev dence is not sufficient and the

motion for judgment of nonsuit should be

anuowed, [Citations omitted. }

dence.

conjecture,

In view of the detailed recitation of the

evidence as to each defendant in our considl-

eration of the preceding assignment of er-

ror we do not deem it necessary to again

review the State's evidence. Suffice it to

say that upon applying the above-stated

rules we conclude that there was ample

evidence to carry the case to the jury as to

each defen ‘ant.

{7} Defendants next contend tuat the

court erred in allowing William Bryant tw

deceribe the blood he observed on the fioor

where the deceased was found. Objection

to the question eliciting William Bryant's

description of the blood surrounding the

decedent's body was lodged on the ground

that the testimony would be repetitious.

Our examination of the record does not

reveal any occasion on which similar testi-

mony had been elicited. This evidence was

clearly relevant and material, particularly -

in hght of other evidence piacing the blood

covered defendants near the seene of the

killing. This evidence was properly admit-

ted. See State v. Cumber, 280 N.C. 127,155 *

S.E.2d 341.

[8,9] Defendants argue that the tral

judge erred in allowing the testimony of

two physicians as Lo the cause of decedent's

death when ali defendants were willing to

stipulate that Griffiths’ death was caused

by multiple stab wounds. Ajithough Lhere is

authority for the proposition that evidence

of an admitted fact may be properly exciud-

ed, a stipulation as to the cause of death

may not be used to prevent the State from

proving ail essential elements of its theory

of the case. State v Cutshall, 275 N.C. 334,

347, 180 S.E.2d 745. The expert testimony

had relevance beyond the facts to which

defendants were willing to stipulate in that

the evidence was competent to show the use

of different instruments, Uereby support-

ing an inference that the wounds were in-

flicted by two or more persons.

{10} The use of grossly excessive force

or the delivering of lethai blows after a

deceased has been felled are among the

Cite as 219 S.b.20 115

circumstances to be considered in detertmin-

yg whether a killing is done with premedi-

tation and deliberation. Therefore, this ev-

idence was alao admissible for the purpose

of proving premeditation and deliberation.

[11] The photographs illustrating these

experts’ testimony were also properly ad-

mitted over defendants’ objections. It has

long ‘wea the rule u: this State that “[rjele-

vant evidence will net be excluded simply

heeause it may tend to prejudice the oppo-

nent or excite sympathy for the cause of

the party who offers it.” 1 Stansbury, su-

pra at § 80, p. 242. In State v. Cutshall,

supra, this Court stated:

Properly authenticated photographs of

the body of a homicide victim may be

introduced into evidence under instruc-

tions limiting their use to the purpose of

illustrating the witness’ testimony. Pho-

tographs are usually competent to be

used by a witness to explain or illustrate

anything that is competent for him to

describe in words. The fact that the

photograph may he gory, gruesome, re-

volting or horribie, does not prevent its

use by a wiiness lo illustrate his testimo-

ny. State v. Atkinson, 275 N.C, 288, 167

S E.2d 241; State v. Porth, 269 N.C. 329,

153 S.E.24 10; State v. Gardner, 228 N.C.

567, 46 S.E.2d &24.

This assinment of error is overruled.

{12} On direct examination Sarakby tes-

tified that he observed defendant Cobb on

ik March 1974, and “he was bloody like he

had been to a slaughter.” Defendants con-

tend that Cobb's objection should have been

sustained and his motion to strike should

have been allowed since the witness was

giving his opinion of the defendant's ap-

pearauce. This Court has long held that a

Witness ay slate the “instantaneous con-

clusiens of the mind as to the appearance,

condition, of mental or physical state of

persons, animals, and things, derived from

observation of a variety of facts presented

to the senses at one and the same time.”

Such stotements are usually referred to as

shorthand statements of facts. State v. |

Skeen, i82 N.C. 44, 108 S.E. 71.

In State v. Sterling, 200 N.C. 18, 156 S.E.

96, it was held to be proper to allow a

witness to state that the defendant's face

“appeared to me as the face of a man who

had taken a hasty shave with a dull razor in

cold water.” In Skeen, supra, this Court

held that it was proper io allow Lestunony

that the defendant's shoes were muddy and

“(djidn’t look like they bad been unlaced in

several days.”

{13} ia our opinion, Sarakhy's deserip-

tion of defendant Cobb was a permissible

expression of opinion under the “shorthand

statemen' of facts” exception to Lhe opinion

evidence rule.

[14] Defendants also contend that the

rule prohibiting expressions of opmion by

lay witnesses was violated when Sarakby

was permitied to testify Uiat Walters and

Spaulding were referring to Griffiths when

they made statements that they had killed

“him.” Defendants did not object to the

district attorney's question until after the

witness had responded. This assignment of

error is deemed waived since defendants did

not object until after the answer had been

received even though grounds for the objec-

tion were obvious after the question had

been asked.

[I}t is well setUied that an ob-

jection must be interposed to an improper

question without waiting for the answer

and, if the objection is not made in apt

lime, a motion lo strike a responsive an-

swer is addressed to the discretion of the

trial court except where the evidence is

rendered incompetent by statute. (Cita-

tions omitted.}

State v. Perry, 275 N.C. 565, 169 S.E.24 839.

Even had the evidence been improperly ad-

mitted, it is evident that the witness must

have referred to Griffiths since there is

nothing in this record to indicate other mur-

ders in which Uiese parties were involved.

We cannot perceive how tue jury could

have been misled or defendant prejudiced

by the admission of this evidence.

‘4 #7

[15] Upon his cross-examination, the

Stie’s witness Sarakby at first refused to

answer several questions. Defendants con-

ied that taey were thereby denied their

right to a. full and fair eross-examination.

They rely on tie case of Bank v. Motor Co.,

216 N.C 482, 5 Shi 318. A cursory ex-

amination of the ease cited by defendants in

support of their contentions reveals signifi-

cant distinguishing features. In Bank, one

of the chief wilnesses answered several im-

material questions, and then refused te. an-

swer any further questions. Conversely, in

the present case Sarakby initially refused to

anawer several questions, but after some

hesitation did freely respond to questions.

Certainiy defendants were not prejudiced

by this witness's original reluctance to an-

swer questions on cross-examination. The

insienifieance of Lhese matters is pighiight-

ed by the failure of defense counsel to

attempt to “sift” the witness. This assign-

ment of error is overruled.

{16,17} On direct examination, Hay-

wood Lindsay tesufied that he saw defend-

ant Walters im the viewmity of the library

and Walters “looked like he had been to a

hey killing.” Following a motion to strike

this testimony, the trial judge granted the

motion to strike and instructed the jury to

disregard the statement “looked like he had

been to a hog killing.” Defendants coniend

that the trial judge erred by repeating the

statement in the exact words of the wit-

ness. When a motion to strike is granted,

the trial judge should instruct the jury to

disregard the stricken evidence. It is pre-

sumed that the jury will follow such in-

iructions. State v. Self, 230 N.C. 665, 187

S.i.Zd 9%; State v. Moore, 276 N.C. 142, 17i

8 h.2d 455, State v. Goldberg, 261 N.C. 181,

14 S.h.2d 334; Wilson v. Mfg. Co., 120

NC. 94, 26S. 629. Here the trial judge

property im iructed the jury to disregard

© ObjecLonabic Lesumony. It was neces-

sury for him Lo repeat the language object-

ed io so that the jury would clearly under-

stand the portion of the evidence which it

should net consider in reaching its verdict.

We find ao merit in this assignment of

error.

All defendants contend that the tria!

court erred in allowing the State to preseat

witnesses whose names had not been fur-

nished to defense counsel prior to jury se-

lection. In this assignment of error, de-

fendants argue that the State's failure to

furnish a complete list of the State's wit-

nesses denied them their “inherent right” to

examine jurors on voir dire as to ther

relationship to the State’s witnesses. Pur-

suant to defendants’ request, the district

attorney did give defendants a list of wit-

nesses that the State intended to present,

but this list did not include the names of

three witnesses, James Goddard, James

Walker and Roy Harrison. In State v.

Hoffman, 281 N C. 727, 734, 190 S26 842,

847. Justice Sharp (tow Chief Justice)

stated for the Court:

“The common jaw recognized no right

of discovery in criminal cases.” State v.

Goldberg, 261 N.C. 181, 191, 134 $.i8-2d

334, 340 (1964). In the absence of a stat-

ule requiring the State to furnish it, the

defendant in a criminal case is not enti-

tled to a list of the State's witnesses who

are to testify against him. McDaniel v.

State, 191 Miss. 854, 4 So.2d 355 (1941);

Padgett v. State, 64 Fla. 389, 59 So. 946

(1912), State v. Matejoushy, 22 5.. 30,

115 NW. 96 (1908); 21 AmJdur.2d Crimi-

nal Law § 328 (1965); 16 CJS. Criminal

Law § 2030 (i%ss). There is no such

Statute in this State. ([Mmphasis ours.)

See also State v. Lampkins, 286 N.C. 497,

212 S.E.2d 106.

We note that a legisiative proposal which

would have required the State to furnish a

list of witnesses the district attorney in-

tended to call at trial was deleted from the

Criminal Procedure Act when it was adopt-

ed ly the Generali Assembiy. See Official

Commentary following G.S. 15A 9083 (1975).

(18-20} 1. is within ihe discretion of the

trial judge to decide whether a witness

shali testify when nis name does not appear

on a liat of witnesses which the State elects

A- as

‘ee see. eee ed

te furnish defense counsel prior to trial.

The Judge's ruling will not be reversed

absent a showing of abuse of discretion.

State v. Anderson, 231 N.C. 261, 188 S.E.2d

336. Under such circumstances, we think it

to be the better practice before ruling for

the Court to interrogate the jurors as to

thew relationship with the tendered wit-

nesses. Although this procedure was not

fo.lowed here, we find no prejudice vo de-

fendants. The testimony given by these

wiinesses did not relate to essential ele-

ments of the crime charged, but only to the

discovery of and chain of custody as to

certain exhints. Defense counsel could noi

have been misied or surprised by the omis-

sion of the names of the witnesses Goddard,

Walker and Harrison from the list fur-

nished by the State since they must have

anticipated the offer of these exhibits into

evidence This assyznment of error is over-

ruled

Defendants contend that the trial judge

erred by everruung their objection to a

question by Ube solicitor to the witness Prid-

gen.

During witness Pridgen’s cross-examina-

tion, the solicitor asked him, “Listen to me

and answer me carefully. If you are the

man who concealed the gun in the radio

that Kidnapped Dr. Edwards down here at

Seotiand Neck " The witness an-

swered, “No | did not.” Pridgen was a

prisoner serving Ume for conviction of a

felony

j21-23) A witness may be cross-exam-

ined by asking disparaging questions con-

cerning colateral matter relating to his

criminal or degrading conduct; however,

the questions must be asked by the solicitor

im ood Tauth. State v. Williams, 279 N.C.

603, 185 S.i.2d 714; State v. Ross, 275 N.C.

50, in Sd 87h, cert. denied, 397 U.S.

1050, WO S Cl 1687, 25 Libba 9d 665; State v

Griffin, 24 NC. 541, 160 SE. 826. The

limits of proper cross-examination are

largely within the diseretion of the trial

judge, and his ruling thereon will not be

held to le error in the absence of a showing

that the jury verdict was improperly influ-

enced thereby. State v. McPherson, 276

N.C. 482, 172 S.E.2d 50; State v. Stone, 226

N.C. 97, 36 5.B.2d 704, State v. Beal, 199

N.C, 278, 154 5.8. 604. Since the solicitor’s

question related to coilateral matter the

witnesses’ negative answer was conclusive

and rendered the question harmicss. State

v. Ross supra. This record does not disclose

bad fath on the part of the solicitor in

asking the challenged question. Even as-

suming, arguendo, nat the question was

asked in bad faith, we cannot conceive that

a single quesuon directed to this witness, a

convicted feion, concerning bis prior mis-

conduct would have affected the jurors in

reaching their verdict.

This assignment of error is overruled.

Defendants each contend that tne trial

juage committed prejudiciai error by per-

mitting the use of armed prison guards and

alluwing the presence of armed officers in

and around the courthouse and in the pres-

ence of the jury during the course of the

trial.

{24} it is the duty of the trial judge, in

the exercise of his discretion, to regulate

the conduct and the course of business dur-

ing # triai. The exercise of this discretion

will not be reviewed absent a showing of

abuse of discretion. 75 AmJur2d Trial,

§ 30, pp. 142, 143, State v. Kirkman, 234

N.C. 670, 68 5.E.2a 315; Siate v. Vann, 162

N.C. 534, 77 S.E. 295.

(25) Among the wituesses appearing in

this case Were three men convicted of mue-

der, two men convicted of felonious break-

ing and entering, one man convicted of

felonious iareenay, as. wen convicted of

armed rebbery and one man convicted of

assault with intent to commit rape. The

three defendants, charged with first-degree

murder, were inmates of Caledonia Prison

Farm. Under these circumstances, it would

seem reasonable for the trial judse to take

strong securily precautions. Further the

trial judge kuew the atm sphere and emo-

tional climate which existed in the court-

Pion We de aot have the benefit of this

Purowiewe The presence of these armed

ehoeers aad puards could add liitve in the

way of fear to ihe courtroom atmosphere

pronlueed by the evidence picturing a vi-

cious erie of violence committed upon a

proon background.

We fold that the trial judge did not

abu oe fis diseretion by ordering or permil-

ting, streng security measures during the

course of this Ural.

i26] Finally all defendants contend that

the unperition of the death penalty is eruel

and unusual punishment prohibited by the

Mybth and Pourtcenth Amendments to the

United States Constitution. The constitu-

teualtv of the death sentence has been

uniformly upheld in numerous recent deci-

sieas of this Court. State v. Woodson, 287

NAV. 578, 215 S.b.2a 607; State v. Robbins,

2a7 NC. 483, 214 S.E.2d 756; State v. Bu-

chanon, 297 NC. 408, 215 S.F.2d 80; State

v Wetmore, 237 NC. 344, 215 S.B.2d 51;

Siatle v. Vinson, 287 N.C. $26, 215 S.E.2d 60;

State ¥. Thompson, 287 N.C. 303, 214 §.E.2d

Ti2; Siate vo Burns, 287 N.C. 102, 214

S.2d 56; State v. Boyd, 287 N.C. 131, 214

Std M4, State v. Armstrong, 287 N.C. ov,

212 SH.2d 804, State v. Vick, 287 N.C. 37,

215 S B.2a 335; Stale v. Waddell, 282 N.C.

431, 16 S..2d 19. We adiere to the hoid-

injrs im these cases

eeause of Lae seriousness of these cases,

we have carefully examined this entire

record. Our examination does not disciose

such jwejudieml crror as would justify the

granting of a new trial or that the judg-

Ments be disturbed.

Ne error

SUAR?, Chie! Justice (dissenting as to

tie death penaily)

Tne murder for wich defendants were

Cua ieled eecurres on IS March 1974, a date

hevween IS January 1973, the day of the

decrion in State v. Waddell, 282 N.C. 431,

14 Sl 2d 19, and 8 April 1974, the day on

rh the General Asse moly rewrote G.S.

RR

14 21 by the enactment of Chapter i201 of

the Session Laws of 1973. Por tue Oe oons

stated by Chief Justice Bobbitt in his dis-

senting opinion in Siate v. Jarrettc, 234

N.C, 625, 666, 202 S.E.2u 721, 747 ( 1Y74)-—an ~

opinion in which Justice Higyias and |

joined—, I dissent as to the death sentence

imposed upon defendants by the court be-

low and vote to remand for the Imposition

of @ sentence of life imprisonment. See

also the dissenting opinion of Chief Justice

Bobbitt, and my concurrence tuerein, in

State v. Waddeil, supra, 282 N.C. at 453 and

476, 194 S.B.2d at 30 and 47.

COPELAND, Justice, dissents as to death

sentence and voles to remand for imposition

of a sentence of life imprisonment for the

reasons stated in nis dissenting opinion in

State v. Williams, 236 N.C. 422, 437, 212

S.F.2d 113, 122 (1975).

EXUM, Justice, dissents from that por-

tion of the majority opinion which affirms

the death sentence aid votes to remand this

case in order that a sentence of life iupris-

onment can be imposed for the reasons stat-

ed in his dissenting opinion in State vy. Wil-

liams, 286 N.C. 422, 439, 212 S.B.2d 113, 121

(1975), other than those relating to the ef-

fect of Section 8 of Chapter 1201 of the

1973 Session Laws.

James B. ADDER

v.

HOLMAN & MOODY, INCOKPORATED.

No. 26.

Supreme Court of North Carolina.

Nov. 5, 1975.

A vehicle owner instituted action for

damages for injuries allegedly resulting

4-22

a%

RECEIVED

IN THE

res 2 1976

SUPREME COURT OF THE UNITED STATES — ¢

OFF Ut > TR CLERK

TERM, 1976 SUPREME UOURT, U-S.}

SHEFAHELHHA AEH EHHA ARERR REHHE SHEE BH EHEEES

NO.

FHEAEKAAHAESHHEH AEE HHHE HEHE HRRE HEHEHE EEE EH

CARDELL SRAULDING,

JOE LEE COBB and

VERNON RICHARD WALTERS

Vv

STATE OF NORTH CAROLINA

REAL AEEEAAEEREREHEREREH HEHEHE RRERE RHEE EREEE

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

HEE AEKAHHHEKREEE HEHEHE HEHE

The undersigned, W. Lunsford Crew, William F. Dickens, Jr.,

anc H. P. McCoy, Jr., Attorneys for the Petitioners Cardell

Spaulding, Joe Lee Cobb and Vernon Richard Walters, ask leave

to file the attached Petition for a Writ of Certiorari to

the Court of Appeals of North Carolina without prepayment of

costs and to proceed in forma pauperis pursuant to Rule 53.

The Petitioners’ affidavit in support of this motion is

attached hereto.

oyr-n

Respectfully submitted,

“rn / oe aga ‘A memati

W. LUNSFORD | .

100 BECKER DRIVE

ROANOKE RAPIDS, NORTH CAROLINA 27870

TELEPHONE: (919) 537-3508

ATTORNEY FOR PETITIONER SPAULDING

A Leo VF Auibern. \,

WILLIAM F. DICKENS, JR. L /

105 WHITFIELD STREET V

ENFIELD, NORTH CAROLINA 27823

TELEPHONE: (919) 445-3632

ATTORNEY FOR PETITIONER COBB

ees ;

es /< f, Cons Da

H. P. McCOoY, JRy

110 E. en

SCOTLAND NECK, NORTH CAROLINA 27874

TELEPHONE: (919) 826-5121

ATTORNEY FOR PETITIONER WALTERS

We,

walters,

IN THE

‘"PREME COURT OF THE UNITED STATES

TERM, 1976

7}

RECEIVED |

‘to 2 1976

Orr Ur ”» Prot CLERK

SUPREME COURT, US.

SPESAHEAEHAEAEHEHEEHEHEHEEHAEAHEHEEHHHEEAHEHHRHEHEEE

NO.

SESSA SEES EHEE HEHEHE ESHER E

CARDELL SPAULDING,

JOE LEE COBB and

VERNON RICHARD WALTERS

Vv

STATE OF NORTH CAROLINA

HEHEHE HEHAHKRKHHRHEHAHAHEAEHKEREAAHAHHEE

AFFIDAVIT

REHAB

Cardell Spaulding, Joe Lee Cobb and Vernon Richard

first being duly sworn according to law, depose and

say, in support of our motion for leave to proceed without

being required to prepay costs or fees:

1.

2.

of said

3.

4,

seek in

We are the Petitioners in the above entitled case.

Because of our poverty we are unable to pay the custs

cause.

We are unable to give security for the same.

We believe that we are entitled to the redress we

said case.

30

5. The nature of said cause is briefly stated as

follows:

Cardell Spaulding, Joe Lee Cobb and Vernon Richard Walters

were charged in separate bills of incictment with the first

degree murder of James Thomas Griffiths on March 18, 1974 in

Halifax County, North Carolina, under North Carolina General

Statutes 8 14-17. All of the Petitioners and the victim were

inmates of Caledonia Prison on the date of the murder. The

trials of the three Petitioners were consolidated upon motion

of the State and over the objection of each Petitioner, which

trial was held during the November, 1974 Halifax County Superior

Court Term. Each Petitioner entered a plea of not guilty and

none of the Petitioners testified in their own behalf. The

“ryury returned verdicts of guilty as charged in the indictments

as to each Petitioner and the Trial Judge imposed the death

penalty upon each of the Petitioners, to which the Petitioners

entered objections based on the death penalty being a cruel

ana unusual punishment in violation of the Eighth and

Pourteenth Amendments to the United States Constitution. The

trial Court overruled each of these objections.

The Petitioners gave notice of appeal in ©pen court after

the Trial Judge imposed the death penalty, which appeal was

perfected to the Supreme Court of North Carolina. 0On

November 5, 1975, the Supreme Court of North Carolina affirmed

the conviction of the Petitioners and found no error in the

trial.

Attorneys for the undersigned Fetitioners filed a request

for a stay of execution with the Supreme Court of North

3!

Carolina on November 20, 1975, which was granted by the

Supreme Court of North Carolina upon the condition that a

Petition for a Writ of Certiorari be filed in this cause with

the United States Supreme Court.

y

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Cardelli S ding o

an ’

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oO ( ¢€&-¢%

Jog Lee Cobb

Subscribed and sworn to by Cardell elt,

Spaulding before me, this the 2(’ Swe 40”,

day of January, 1976. soe" GC

; ay a FY FS ROTAR:

} VY, > y J Z S

d 4 Y > * ; Pry ee

Notary Public /” win r

Commissi ires October 6. 1980 ay 6 peewee NS

My Commission Expires: My nembeanttinaans ba uN\" w

fonetst

. Wiehdens,,

~ t. Met,

Subscribed and sworn to by Joe Lee oa ““g

Cobb before me, this the ss Ses

day of January, 1976. “Ys OTARY §&

“ ; : % t . L c 3 ; E

/ & A . %. - ee

_— a>

Notary Public i.

on éxgues October 6 1980. UNA

My Commission Expires: My Commission Lip

eeeetteteg,

Subscribed and sworn to by Vernon oy Wom,

Richard Walters before me, this the SP,

20 day of January, 1976. FOF otaayy“%

Lip :

pron : Rie

FEBLO (3

OFFICE OF THE CLEP

HUrPPiy Co Tu 1]

oT <-> =e

IN THE

SUPRLME COURT OF THE UNITED STATES

_Term, 1976

REFEREE REE ERE EERE RHEE

NO.

ERE EKREEEEKREEREKREEEEEKEREREE

CARDELL SPAULDING, JOF LEE COBB,

and VERNON RICHARD WALTERS,

Petitioners

Vv. .

STATE OF NORTH CAROLINA, AY )

Respondent

| - \

TT TT TTT LTT ILL LITT LLL L LL TLLLt ttt

- Pee .

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI TO ThE SUPREME COURT

OF THE UNITED STATES TO REVIEW

THE DECISION OF THE SUPREME COURT

OF NORTIi CAROLINA

RAEEEKEKKEREEREKEEKEEEEKEKEKEKEKKKEKEKET

RUFUS L. EDMISTEN

Attorney General

LESTER V. CHALMFRS, JR.

Assistant Attorney General

N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-2011

INDE Y

Pace

Citation to Opinion Relow......ee. eeccces coceccccece eso J

Jurisdiction. ...seee- TETTTTTLELILITIT TTI e° ]

Questions Presented. .cccceccvcessceseesesesesseseess ecoeol,2

Constitutional and Statutory Provisions Involved.....++..+2

Statement of Ee eee eee ee

Staterent of Petite. ntbceenks 6b60eGbO0060080060500 0000040608

Aroury: t

I. THE IMPOSITION AND EXECUTION OF THE

SENTENCE CF DEATH FOR THE CRIME OF MURDER

UNDER THE LAW OF NORTH CAROLINA DOES NOT

VIOLATE THE EIGHTH AND FOURTEENTH AMEND-

MENTS TO THE CONSTITUTION OF THE UNITED

GUREES. ccccccccccccesceccescccecceceosccessosecesd

Il. THE COMPETENT EVIDENCE ADMITTED AGAINST

THE DLFENDANT SPAULDING AS COMPARED TO

THE ADMISSIONS OF OTHER CO-DEFENDANTS

ADMITILD INTO FVIDENCF WHICH WERE NOT

COMPETENT AGAINST THE DEFENDANT SPAULDING,

DID NOT VIOLATE SPAULDING'S SIXTH AMEND-

MENT RIGHTS OF CONFKONTATION AND CROSS-

EXAMINATION AND WERE HARMLESS BEYOND A

REASONABLE DOUBT....cccccccccccccccccscccccsves ted

Cente. . 6 nn bees 6b60606b0606666660060006660060000600008

288 N.C. S.E.

2d 178 CIOTS) ccccesceceoeceecseseoeae

Appendix A-1, Opinion, State v. Spaulding,

397, 219

TABLE OF CASES

Brown v. United States, 411 U.S. 223, 36 L.Ed 2d 208,

93 Ss. ce. DOE... ne06060000660000004

Chapman v. California, 386 U.S. 18, 17 L.Ed 2d 705,

87 Be . SP aerrerrrrT eT TTT

Fahy v. Connecticut, 375 U.S. 85, 11 L. Ed. 2d 171,

84 Be Cte Sees

Fowler v. North Carolina, No. 73-2031 (Oct. Term 1974)....3

Harrington v. California, 395 U.S. 250, 23 L. Ed 2d

284, 89 Ss. 4 Bes ceceeseekeéeS

Schneble v. Florida, 405 U.S. 427, 31 L. Ed 2d 340,

92 Ss. Cee NS .. nc 6obe6eebeese6oeseueee

State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398....eeeeeee4

State v. Davis, 284 N.C. 701, 202 S.E. 2d 770

(U.S. cert. GamcdcececoceseocessscostocoecseS

State v. lletcher and State v. Arnold, 279 N.C. 85,

181 S.E. 2d ORG. . 66ue6senseseeewnseeeseeee

—_— SSS SSS

State ve Fox, 274 N.C. 277, 163 S.F. 2d 492...eeeee

State v. Jones, 280 N.C. 322, 185 S.F. 2d B58. cece

State v. Swanecy, 277 N.C. 602, 178 S.F. a.

Statutes:

28 0.8.6 « Sec. 1257 (3) ecccccccseseoseseseseeeee

N.C. General Statutes, Secs. 14-17, 14-18,

15-187 and 15-188.