# Petition — Spaulding v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2074%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 904 ## Text 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 “ Cardelli S ding o an ’ A “ra # if’ / 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2074%3A1. Public record. Not legal advice.