Petition — JOHN W. ROOK v. NORTH CAROLINA (No. 81-6143)

SI-Gi4¢2

NO. A-591

SUPREME COURT, U.S.

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IN THE

SUPREME COUT OF THE UNITED STATES

OCTOBER TERM, 1981

JOHN WILLIAM ROOK,

Petitioner,

v.

STATE OF NORTH CAROLINA,

Respondant.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF NORTH CAROLINA

. Franklin Jackson —

P. 0. Box 1029

Dunn, North Carolina 28334

Phone: (919) 892-2145

ATTORNEY OF, RECOR

Suite 612, BB&T Building

Post Office Box 1182

Raleigh, North Carolina 27602

Phone: (919) 828-4486

ATTORNEY OF RECORD

QUESTION PRESENTED

Whether the Petitioner was deprived of his constitutional right

to ‘individualized consideration” as guaranteed by the Eighth and Fourteerth

Amendements to the United States Constitution in being sentenced to death

pursuant to a statute that permitted the jury to return its recommendation for

a sentence of death without specifying which of the mitigating circumstances

it found to exist.

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TABLE OF CONTENTS

i!

QUESTION PRESENTED . 2 2 2 2 ee ee ee ee ee ee eee

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| TABLE OF CASES AND AUTHORITIES... 2... eee eee

| CITATION TO OPINION BELOW... 2.2... 2 eee

JURISDICTION. 2.2... eee Cre

| CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .....

} I i ood ak. og ee eo a

1 REASONS FOR GRANTING THE WRIT. .........

CS ere ee ee ere eee

APPENDIX A: Opinion of The Supreme Court of North Carolina.

APPENDIX B: Order Staying Execution. ......+4 +46.

APPENDIX C: Extension of Time For Filing Petition.....

APPENDIX D: North Carolina General Statute

15A-2000 et seq.

ii

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‘

_TABLE OF CASES AND AUTHORITIES

CASES _

FURMAN v. GEORGIA, 408 U. S. 238 (19FZ) .nccccccccccces

GREGG v. GEORGIA, 428 U. S. 163 {IDTS) .ccccccccccccce

LOCKETT v. OHIO, 438 U. S. 586 (1978) ......ceeeeeees

“ PROFFIT v. FLORIDA, 428 U. S. 242 (1976) .....-...00000.

WOODSON v. NORTH CAROLINA, 428 U. S. 280 (1976) ..........

CONSTITUTIONAL PROVISIONS

Constitution of the United States .......eeeeeeececeeecens

Eighth Amendment ......ccececececcceccseceeeescees

FOURTEENTH AMENDMENT .......cceeeeeceecceeceecenes

STATUTORY PROVISIONS

Title 28, United States Code, Section 1257(3) ...........-

North Carolina General Statutes (Supp. 1979)

WEA20OD 2. ccccccccccccccccccccccccccccccccesccess

WAZOO (D) nc ccccccccccccccccccscccocccccccocess

TEABOOO(]) 2 cccccccccccccccccccccccccccceccccese

WEA-2000(G)(2) .cccccccccccccccccccccccccccccccece

iii

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1981

No. A-591

JOHN WILLIAM ROOK,

Petitioner,

-v-

STATE OF NORTH CAROLINA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THC SUPREME COURT OF NORTH CAROLINA

Petitioner, John William Rook, respectfully prays that a writ of certio-

rari issue to review the judgment of the Supreme Court of North Carolina in this

case.

CITATION TO OPINION BELOW

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

a Gee 5 » 5.E.2d (1981), and is attached hereto as

Appendix “A”.

JURISDICTION

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

November 3, 1981. By operation of North Carolina law, an execution date of

February 19, 1982 was thereafter established for petitioner. On December 17,

1981, however, the Supreme Court of North Carolina stayed petitioner's ex-

ecution pending its further orders. On December 30, 1981, this Court, per Mr.

Chief Justice Burger, granted petitioner's application for an extension of

time to February 1, 1982, within which to file his petition for a writ of

certiorari (Appendix 8). This Court's jurisdiction to review by writ of

certiorari is invoked under U.S.C. Sec. 1257(3).

Roche.

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CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth Amendment to the Constitution of the United)

States, which provides in relevant part:

"Excessive bail shall not be required, nor excessive

fines imposed, nor crue] and unusual punishments

inflicted;”

and the Fourteenth Amendment to the Constitution of the United States, which

provides in relevant part:

“(N] or shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws."

STATEMENT OF CASE

Petitioner, John William Rook was convicted and sentenced to death by a

Wake County, North Carolina, jury in October, 1980, for the murder of Ann Mari

———

The State presented evidence showing that Ann Marie Roche was walking

along a road in Raleigh, North Carolina on May 12, 1980 when her path was

blocked by a car being driven by a person who was later identified as the

Petitioner (T.72-73) by several witnesses. (T. 63,72,75). As MS. Roche ap-

proached the car the two had a brief conversation and then began to argue and |

the Petitioner began to beat her (T. 71). The witnesses saw the car leave

with MS. Roche in the passenger seat (T. 125). On May 13, 1980, a oatrol

officer on routine patrol discovered the body of Ann Marie Roche in a large open

field (T. 108, 109) and medical evidence showed that she had been beaten, cut

with a knife, raped and had been run over by an automobile. (T. 164-174). |

The Petitioner made a statement to the police, confessing that he met Ann :

Marie Roche while she was walking along a road; that she got into his car and |

they drove to a large open field. (T. 142) He told her to get out of the car

and after hitting her with a tire tool he proceeded to have sexual intercourse

with her (T. 143). She started fighting him and he said he went crazy (T.143)

and started hitting her. He hit her with the tire tool and swung at her with

a knife, and struck her with the knife on the face and neck, though not meaning

to hit her (T. 143). He stated that he ejaculated and then tried to have anal,

intercourse (T. 143). He stated he started hitting her again but she did not |

_move (T. 144). The Petitioner stated that he got in his car and drove down |

to turn around; stating that he could barely see over the steering whee! and |

F did not mean to run over her (T. 144). He then went on home and told no one

_ what he had done (T. 144).

The Petitioner offered no evidence. The trial court instructed the

|

jury which returned verdicts finding the Petitioner guilty of first degree |

murder, first degree rape, and kidnapping (T. 175-202). |

After the verdict of guilty of first degree murder, the trial court, |

pursuant to North Carolina Genera] Statute 15A-2000, convened the trial jury |

on the sentencing phase of the trial to determine whether the Petitioner should

be sentenced to death or life imprisonment. The State offered no additional

evidence during the sentencing phase. |

The Petitioner presented evidence at the sentencing phase of the trial

through his brother and sister, who described their life with their parents.

In addition, the Petitioner offered evidence through two psychiatrists.

|

After this testimony and arguments of counsel the jury was instructed on

these aggravating circumstances in the following language:

1. “Was this murder committed while John William

Rook was engaged in the commission of the rape

of Ann Marie Roche. (T. 243)?

“Now, if the State has so convinced you beyond a

reasonable doubt and you so find beyond a reasonable

doubt then you would write ‘yes’ after that al-

leged aggravating circumstance." (T. 243,244)

“However, if you do not so find, or if you have a

reasonable doubt as to one or more of these things,

you would not find this aggravating circumstance

and would so indicate by having your foreman write

‘no’ in the space after that alleged aggravating

circumstance." (T. 244)

2. “Was this murder committed while John William Rook

was engaged in the commission of the kidnapping of

Ann Marie Roche?"(T. 244)

"... if you so find from the evidence beyond a reason-

able doubt ... so indicate by having your foreman

write ‘yes’ in the space after the second alleged

aggravating circumstance." (T. 244)

"... if you do not so find, or if you have a reason-

able doubt as to anyone or more of these things, you

3

you would not find this aggravating circumstance

and would so indicate by having your foreman write

‘no’ in the space following that alleged circumstance."

(T. 244,245)

3. “Was this murder especially heinous, atrocious, or

cruel?" (T. 245)

“If you find from the evidence in this case ... you

would so indicate by having your foreman write ‘yes’

in the space after this alleged circumstance on

this issue and recommendation form." (1.245)

. if you do not so find ... indicate by having

your foreman write ‘no' in that space.”

The jury was instructed on the mitigating factors in the following

language: |

“Now, Issue Number Three reads as follows: ‘Do you

one or more mitigating circumstances?”

T. 247

“... in this case there are sixteen possible mitigat-

ing circumstances that are listed on this form

and that you should consider each of them before

answering Issue Number Three.” (T. 247)

“... if the evidence satifies you that a mitigating

circumstance does exist, you would then find that

circumstance. If no, you would not find it." (7.248)

. it will be your duty on this issue, if you reach

it and if you answer it, to consider the following

mitigating circumstances, and any other which you

find from the evidence.” (T. 248)

1.

The mitigating circumstances submitted to the jury were:

(a) That this murder was committed while John William Rook

was under the influence of mental or emotional dis-

turbance.

(b) The capacity of John William Rook to appreciate the

criminality of his conduct or to conform his con-

duct to the requirements of the law was impaired.

(c) The age of John William Rook at the time of this

murder is a mitigating circumstance.

{d) John William Rook, in his formative years, was sub-

jected to cruelty and physical abuse by his parents.

“... regarding Issue Number Three, members of the jury,

if you do find one or more of these mitigating cir-

cumstances from the ... evidence, you then answer Issue

Three ‘yes'. However, if you do not so find at least

one of these mitigating circumstances from the evidence,

you would then answer Issue Number Three ‘no'" (T.254)

"... if you unanimously find beyond a reasonable doubt

that the aggravating circumstances found by you out-

weigh the mitigating circumstances found by you, you

would then answer Issue Number Four ‘yes‘'" (T. 255)

“... if you answer Issue Number Four ‘no’, it would

then be your duty to recommend that the defendant be

sentenced to life imprisonment.

(e) John William Rook, in his formative years, was sub-

jected to mental abuse by his parents.

(f) John William Rook, in his formative years, was sub-

jected to emotional abuse by his parents.

(g) Jonn William Rook has been a loving and affectionate

husband to his wife.

(h) John William Rook has been loving and affectionate

to his brothers and sisters and their children.

(1) John William Rook is an alcoholic.

(j) John William Rook is an abuser of drugs and is ad-

dicted to drugs.

(k) John William Rook was sexually abused by an older

man whom he lived with when he was 10 years old in

order to have a more stable home environment.

(1) Jonn William Rook had a deprived and chaotic child-

hood in which he was schooled in violence and

criminality by his parents.

(m) John William Rook now has an IQ of 71 and received

very little education in his formative years.

(n) John William Rook, in his formative years, received

very little religious and moral training.

(o) John William Rook confessed in detail as to what he

did and cooperated with the detectives and in-

vestigators of the Raleigh Police Department and

Wake County Sheriff's Department as to his involve-

ment.

(p) Any other circumstance or circumstances arising from

the evidence which you, the jury, deem to have miti-

gating value.

As to Issue Three “Do you fi. 4 one or more mitigating circumstances?" The

If, however, you answer Issue Number Four ‘yes’, it would

then be your duty to recommend ... that the defendant

be sentenced to death." (1.255) |

In the verdict, the jury found all three of the aggravating ci rcums tances

to exist and indicated so by writing "yes" after each individual issue. (T.258)

jury indicated that it did by writing “yes” after the issue; however, the

jury did not indicate which of the mitigating circumstances it found to exist |

or be nonexistent. (1.259, 260) The jury further found that the mitigating

circumstances did not outweight the aggravating circumstances and that the

aggravating circumstances were sufficiently substantiated tc call for the

death penalty. (T. 260)

The North Carolina Supreme Court affirmed Petitioner's conviction and

death sentence, explicitly finding that the court did not err in permitting

the jury to retum its recommendation for a sentence of death without speci fy

ing which of the mitigating circumstances it found to exist. State of North |

Carolina v. Rook, N.C. . S.£.2d 510, __(1981)

REASONS FOR GRANTING THE WRIT

1. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER

WHETHER THE NORTH CAROLINA SUPREME COURT HAS

SANCTIONED CAPITAL SENTENCING PROCEDURES WHICH

VIOLATED PETITIONER'S RIGHT TO “INDIVIDUALIZED

CONSIDERATION", IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CON-

STITUTION.

In Furman v. Georgia, 408 U.S. 238 (1972) this court concluded that dis-

cretionary sentencing in a capi tal trial "be suitably directed and limited

so as to minimize the risk of wholly arbitrary and capricious action.”

Gregg v. Georgia, 428 U.S. 153, 189 (1976). In order to accomplish this,

the sentencing authority's discretion must be “guided and channeled by a

system that focuses on the circumstances of each individual homicide and in-

dividual defendant in deciding whether the death penalty is to be imposed. "

Proffitt v. Florida, 428 U.S. 242, 258 (1976). In Woodson v. North Carolina,

428, U.S. 280, 304--305 the court states that consideration of the “character

and record of the individual offender and the circumstances of the particular

offense ... [is] a constitutionally indispensable part of the process of in-

flicting the penalty of death.” In Lockett v. Ohio, 438 U. S. 586 ,604-05

(1978) (Burger, C.J.; plurality opinion) the court expounded on the concept of

“individualized consideration” as a constitutional requirement.

“(T)he Eighth and Fourteenth Amendments require that

the sentencer, in all but the rarest kind of capita!

case, not be precluded from considering any aspect of

a defendant's character or record and any of the cir-

cumstances of the offense that the defendant proffers

as a basis for a sentence less than death ... The need

for treating each defendant in a capital case with

that degree of respect due the uniqueness of the in-

dividual is far more important than in non-capital

cases. ... The nonavailability of corrective or modi-

fying mechanisms with respect to an executed capital

sentence underscores the need for individualized con-

sideration as a constitutional requirement in imposing

the death sentence.

“There is no perfect procedure for deciding in which

cases governmental authority should be used to impose

death. But a statute that prevents the sentencer in

all capital cases from giving independent mitigating

weight to aspects of the defendant's character and re-

cord and to circumstances of the offense proffered in

mitigation creates the risk that the death penalty will

be imposed in spite of factors which may call for a

less severe penalty. When the choice is between life

and death, that risk is unacceptable and incompatible

with the commands of the Eighth and Fourteenth Amend-

ments."

It is the contention of this Petitioner that the North Carolina

2

Statutes permitting the jury to return its

2

N.C.G.S. 15A-2000 et seq.

recommendation for a sentence of death without specifying which of the miti-

gating circumstances it found to exist violates the constitutional right of

“individualized consideration" and therefore violative of the Eighth and

Fourteenth Amendments of the United States Constitution.

_ North Carolina General Statute 15A-2000 sets out the procedures for the

sentencing phase in a capital case. Section (b) of the statute requires,

first, that in all capital cases:

"“[T]he judge shall include in his instructions to the

jury that it must consider any aggravating circum

stance or circumstances or mitigating circumstance

or circumstances from the lists provided in sub-

sections (e) and (f) which may be supported by the

evidence.

“4

"After hearing the evidence, argument of coursel,

and instructions of the court, the jury shall de-

liberate and render a sentence recommendation to

the court, based upon the following matters:

(1) Whether any sufficient aggravating circumstance

or circumstances as enumerated in subsection

(e) exist;

(2) Whether any sufficient mitigating circumstance

or circumstances as enumerated in subsection

(f), which outweigh the aggravating circum

stance or circumstances found, exist; and

(3) Based on these considerations, whether the de-

fendant should be sentenced to death or to im

prisonment in the State's prison for life.”

Section (c) provides:

"“(c) Findings in Support of Sentence of Death-- When

the jury recommends a sentence of death, the foreman of

the jury shall on behalf of the jury show:

(1) The statutory aggravating circumstance or cir-

cumstances which the jury finds beyond a

reasonable doubt; and

|

(2) That the statutory aggravating circumstance or

circumstances found by the jury are sufficiently

substantial to call for the imposition of the

death penalty; and,

(3) That the mitigating circumstance or circumstances

are sufficient to outweigh the aggravating circum

stance or circumstances found.”

- Section (e) then lists the available aggravating circumstances, and section |

(f) suggests a list of mitigating circumstances which the jury may consider

but to which it is not limited because of the open-ended language found in

section (f)(9).

At Petitioner's trial, the jury was submitted and it returned, three

aggravating circumstances; it was also submitted sixteen mitigating circum

stances but did not specify which mitigating circumstances it found, only

that it found “one or more" to exist. The Supreme Court of North Carolina

upheld the trial court's failure to instruct the jury to answer specifically

whether or not each mitigating circumstance did or did not i,”

Petitioner would agree to this court that such a construction of North

Carolina's death penalty statute prejudiced the Petitioner at his trial and

appeal to the North Carolina Supreme Court and denies to him his constitutional

right of “individualized consideration” as that concept is set out in Lockett.

As J. Exum stated in his dissent in present — “regarding the jury |

" t0 specify in writing the aggravating, but not the mitigating, circumstances...

| prejudices the defendant at the sentencing hearing. It encourages the jury to |

think that the mitigating circumstances are less worth than the aggravating

circums tances."

Petitioner is prejudiced not only at trial, but also on appeal to the

| North Carolina Supreme Court since the statute requires that that court review

the case to consider whether "the sentence of death is excessive or dispro-

| portionate to the penalty imposed in similar cases, considering both the crime

| and the dafentent. As J. Exum stated in the dissent “We cannot ... determine

whether the sentence of death in any particular case is excessive or dispro-

portionate when compared with similar cases ‘considering both the crime and the.

_ defendant’ unless we know both the aggravating and the mitigating circum-

stances found by the jury to exist .

It is submitted that a substantial constitutional question is raised

concerning

“It follows, then, that there exists no constitutional requirement of

specific findings on mitigating circumstances and a failure of the trial court

to instruct the jury to make specific findings was not error.” State v. Rook,

N.C. DP (1981)

4

Id at p

5

G. S. 15A-2000(d)(2)

6

State v. Rook, N.C. ’ (1981)

‘the procedure which the Supreme Court of North Carolina has adopted by its de-

| “individualized consideration" of the Petitioner. In the instant case the

cision in the present case and that such a decision failed to allow for

majority opinion seems to indicate that it is enough, for purposes of their

\;

\ appellate review, that they know what mitigatina circumstances were submitted

i to the jury rather than what mitigating circumstances were found to exist by

‘the jury. In order to properly review the sentence in a capital it is essential

that the sentence reviewer know exactly what the jury considered in reaching its,

decision, not only aggravating circumstances but mitigating circumstances as a.

In Lockett, the court stated that it could not "... avoid the conclusion that

N an individualized decision is essential in capital cases." ; It is submitted |

that in this case the failure of the trial court to require the jury

6.

Lockett v. Ohio, supra 438 U.S. 586.

to specify which of the mitigating circumstances it found to exist violated

Petitioner's constitutional right to “individualized consideration" guaranteed

by the Eighth and Fourteenth Amendments.

CONCLUSION

For the reasons stated above, Petitioner prays that this Court grant

the Petition.

Date: April 16, 1981.

Respectfully Submitted,

. Franklin son

DOFFERMYRE AND JACKSON, P. A. |

P. 0. Box 1029

Dunn, North Carolina 28334

Phone: (919) 892-2145 |

10

Ph pen ik

IN THE SUPREME COURT OF NORTH CAROLINA FALL TERM 1981

STATE OF NORTH CAROLINA

Vv No. 2 = Wake

~~ ee oe

JOHN WILLIAM ROOK

Appeal from judgments entered by Clark, Judge, at the 6

October 1980 Criminal Session of Superior Court, Wake County.

Defendant was convicted by a jury of first degree rape, kidnapping,

and first degree murder. For his conviction of first degree

murder, defendant was sentenced to death. Defendant received

consecutive life sentences for the crimes of kidnapping and first

degree rape. From all these judgments, defendant appeals to this

Court as a matter of right.

Attorney General Rufus L. Edmisten, by Assistant Attorney

General J. Michael Carpenter, for the State.

C. D. Heidgerd and J. Franklin Jackson for the defendant.

CARLTON, Justice.

Defendant brings forth assignments of error relating to

several pre-trial matters, an alleged error in the guilt deter-

mination phase of his trial and several alleged errors relating to

the sentencing phase of his trial. After a careful consideration

of these assignments, as well as the record before us, we find

no error in any of these proceedings and affirm.

I.

At trial, evidence for the State tended to show that at

approximately 7:20 p.m. on 12 May 1980, Ann Marie Roche, a registered

nurse, was walking home on Avent Ferry Road. She was clad ina

T-shirt and blue jeans, was wearing glasses and was carrying a

A-1

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brown gym bag. As she was nearing the Lake Raleigh Road intersection

defendant, who was driving a Mercury automobile borrowed from

his neighbor, turned left onto Lake Raleigh Road and blocked her

path. Defendant beckoned Ms. Roche and she approached his car.

The two talked for several minutes and then began arguing and,

within seconds, defendant began to beat her.

All of this was observed by Howard B. Harris, Jr., who

lived on Avent Ferry Road, and George Edward Schlager, who was

jogging by. Mr. Schlager approached the car just as defendant

was beating Ms. Roche. Ms. Roche was on the ground with her

back against the driver's door. Her face and arms were cut and

bleeding, and defendant was crouching over her, armed with a stick

or some other object about one or two inches in diameter. Mr.

Schlager asked if he could help and defendant stood and replied,

"just go on, man, this deesn't concern you.” Mr. Schlager then

saw Mr. Harris and went to confer with him. Both saw the car

leave with Ms. Roche in the passenger seat, with her head down,

crying. Mr. Schlager jogged toward the car and observed the

license number, RAP-980. He wrote the number on 4 matchbook and

gave a copy of it to Mr. Harris.

Two other persons, Donna Atkins and Pamela Dodd, observed

the struggle between Ms. Roche and her assailant. Ms. Atkins

positively identified defendant as the assailant. Ms. Dodd

observed a man beating a young woman. She testified:

I saw a guy over the front seat beating a girl

brutally. The steering wheel appeared to jar at

times he was beating her so hard. Then they were

out cf the car. He was swinging her around by

the hair on the ground once that I can remember.

At that time I ran in the house and called the

police.

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Although Ms. Dodd did not positively identify the assailant as

the defendant, her description of the assailant matched that of

the defendant.

Officer Ronnie Holloway arrived in the area at approxi-

mately 7:30 p.m. in response to the calls. Although he patrolled

the area, he could not find the car.

On 13 May 1980 at approximately 7:30 p.m., Norman Cash,

a patrol officer with Dorothea Dix Hospital, was on routine patrol

in the area just south of Lake Raleigh. In a large, open field

he discovered a pile of clothing and a billfold. A short dis-

tance away, he observed a body and notified the Wake County

Sheriff's Department. Deputy Pickett of the Wake County Sheriff's

Departmertwas called and he, too, observed the body. At 8:45 p.m.,

Officer William E. Hensley, a crime scene specialist, was called

to the scene. He observed a white female body, badly bruised and

battered, with cuts and abrasions. The ground around the body was

covered with blood. The body was nude and was approximately

thirty-five feet from the pile of clothing. A T-shirt, blue

jeans and glasses were recovered as well as other articles in-

Cluding a brown bag. The body was identified as Ann Marie Roche.

From the license number recorded by Mr. Schlager the

police were able to trace the car and locate the owner. On 15

May 1980, Officer Holloway went to Stovall Drive and found the

car in question. Surveillance was set up and the car was sub-

sequently stopped by officers. It was operated by Ms. Edwards,

the owner, who told the police that defendant had borrowed her

car on the evening of 12 May 1980. She told police that when he

borrowed the car, defendant was dressed only in blue jeans, was

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barefooted, and had pulled his hair back in a pony tail. .This

description matched that given by all the witnesses to the assault.

Surveillance of the area continued and the defendant was observed

entering a trailer near where the car was parked. Raleigh police

officers approached the trailer, knocked on the door, and were

told to enter. Inside were two white males, two white females

and a small child. Sergeant G. W. Black requested permission to

search for defendant and this was denied. Shortly thereafter,

however, the defendant came from the hallvay of the trailer and

stated, "I guess I'm the one you're lookina for." Defendant was

then taken into custody and placed in a patrol car.

On 15 May 1980, Deputy Sheriff P. J. Bissette obtained

a search warrant to search thé@-trailer where defendant had been

arrested and conducted a search. During the search, Officer

Bissette found and seized a pair of blood-stained blue jeans.

Officer Hensley, who assisted in the search, found a Rapala Finland

knife and a leather carrying case on the dash of a vehicle parked

in front of the trailer. He then inspected the Mercury vehicle

which had been taken to the Wake County Courthouse and found fresh

Stains on the driver's side as well as grass caught between certain

sections of the vehicle. He observed red stains @mthe hubcaps and

underneath the vehicle. During the autopsy of Ms. Roche, Officer

Hensley observed an unusual circular impression, approximately

five centimeters in size, on the right hip. He noted a corresponding

five centimeter area in the chassisof the Mercury automobile.

S.B.I. agent Mark Nelson came to the crime scene on the

evening of 13 May at approximately 11:30 p.m. He made numerous

tests and observations and stated his opinion that one particular

bloody smear was consistent with the large bloody object, like

A-4

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a body, being rolled or dragged down the slope of the field. He

also examined the Mercury automobile and found blood in numerous

places. He also performed tests on the vaginal and anal smears

taken from Ms. Roche's body and found the presence of sperm.

Dr. Dana D. Copeland, a pathologist, conducted the

autopsy on Ms. Roche on 14 May 1980. He observed cuts on the

front part of her body, all parallel. The cuts were straight

across and were of a uniform, shallow depth. The placement and

uniform depth, in Dr. Copeland's opinion, indicated that the

cuts had been made deliberately shallow and “with some care and

effort.” His conclusion was that Ms. Roche's cuts were caused

by a sharp instrument like a knife. Dr. Copeland found numerous

lacerations on her head and hands which were, in his opinion,

produced by beating with a long, blunt instrument with a rcund

striking surface. In addition to the numerous cuts and abrasions

throughout Ms. Roche's body, her left leg was completely fractured

and broken at the top. The pelvis was fractured and separated.

Compression injuries in the pelvic region were consistent with

her having been struck by an automobile. Severe internal bleeding

had taken place and he found injuries in the vaginal area which,

in his opinion, could have been produced by forcible sexual

intercourse. Her right rib was also broken. In Dr. Copeland's

Opinion, Ms. Roche died as a result of loss of blood from the

injuries she sustained. Moreover, his opinion was that she could

have remained alive from a period of two hours up to a maximum

of twenty-four hours after receiving the injuries observed.

At approximately 8:12 p.m. on 15 May 1980, Deputies

Freddie Benson and Ted Lanier and Detective J. C. Holder of the

Raleigh Police Department began interviewing the defendant.

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Deputy Benson advised defendant of his Miranda rights and defen-

dant signed a waiver of rights form. Defendant stated that he

understood his rights. Deputy Benson left the room and Detective

Holder began to question defendant. He again advised defendant

of his rights and defendant was calm and in control. Detective

Holder testified that “Johnny looked at me, and he said that he

@id it. He asked me if I was happy. I told him that I was not

happy. I said, ‘What did you do." He raid that he killed that

girl.” Defendant then proceeded to give Officers Holder and

Lanier a complete statement.

Defendant's statement to the officers can be summarized

as follows: On 12 May 1980 he was at a cookout on Stovall Drive

and needed more beer. He borrowed the Mercury from Ms. Edwards

and drove to the A & P Store on Western Boulevard where he pur-

chased a bag of charcoal. Upon leaving the store he got into a

fight with a black person and ran and hid until they left. He

then went to an apartment complex on Avent Ferry Road and removed

some money from the coin-operated laundry machines. As he drove

down Avent Ferry Road he saw Ms. Roche walking and blew his horn.

She waved, and he turned into the first dirt road, backed and

turned, and sat headed toward Avent Ferry Road to await the girl.

When Ms. Roche walked up to the car, he pinched her. She slapped

him, and they began scuffling. He then apologized, and she said

he had already hurt her arm. He asked her to go riding with him

and she got into the car. A jogger came up during the scuffle

and defendant told the jogger to keep his eyes on what he was

doing. He and Ms. Roche then drove down Avent Ferry Road headed

south and, after making a few turns, they eventual) reached a

wheat field. Defendant told her to get out of the car and "tried

A-6

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to get into her pants." She resisted, and he told her he was

going to have to get his “damn gun” from the vehicle, although,

in fact, he did not have one. Defendant got a tire tool out of

the trunk of the car, and Ms. Roche removed her pants. As she

did so, he struck her on the side of the head and she fell to

the ground. He then had forcible sexual intercourse with her.

She tried to pull his hair, and he began to hit her some four

or five times on the head and got blood on his face, shoulder,

wrist and pants. According to defendant, he swung his knife at

her and cut her on the face and neck, but he didn't mean to cut

her. He then attempted anal intercourse, and when she resisted,

he hit her again, and, instead of fighting, she just laid there

bleeding. Defendant then got into his car and drove down to

turn around. He could barely see over the steering wheel, but

knew he had run over her with the car because he heard a thump

and the car got stuck. He spun the tires to free the car and

then drove home. When he arrived, the police were at the trailer.

He returned to the cookout and explained the blood on his

clothing and body as the result of the fight at the A & P.

At approximately 10:26 p.m. on 15 May 1980, defendant

consented to a taped interview. Prior to this taking place,

Officer Holder again advised defendant of his rights and defen-

dant again repeated essentially the confession summarized above.

Later that evening, defendant accompanied Detective Holder and

other officers to the crime scene and showed them various items

involved in the crime.

Defendant offered no evidence during the guilt determination

phase of the trial.

-8-

Upon receiving the jury verdict finding defendant

guilty of first degree murder, first degree rape, and kidnapping,

the court convened the sentence determination phase of the trial before

the same jury. The State offered no evidence during this phase,

choosing to rely instead upon the evidence introduced at the

guilt determination phase. The defendant presented evidence through

his brother and sister, who described in detail their life with

their parents. Their parents were violent and constantly drunk

and beat their children frequently. Their father spent time in

prison, and the children were placed in foster homes. Defendant

was forced to begin drinking by his father before he was ten years

of age and would get "“stone-drunk.” Defendant became a heavy

drinker and drug user.

Dr. Bob Rollins, a specialist in forensic psychiatry,

examined defendant and diagnosed defendant as having a mental

Gisorder of emotionally unstable personality as a result of

experiences during his formative years. Dr. Rollins also testi-

fied that defendant was able to proceed to trial in that he under-

stood his legal situation and was able to cooperate with his

lawyer. Dr. Rollins felt that defendant understood what he was

charged with, the different pleas he might make and the possible

consequences of the situation. He further testified:

Mr. Rook just has never been able to make a

satisfactory adjustment out in society, not

been able to get along with people. He's

been involved in violence, the longest he

had ever been employed is three weeks; he

can't get along with his own family, with his

wife, or with anybody. He just doesn't have

the capacity to do that.

Itwas also Dr. Rollins's opinion that defendant associates sexual

-9-

gratification with violence and aggressive acts and is sexually

excited by violence and aggression. His opinion was that defen-

dant, to some extent, “enjoys inflicting pain on other people."

Dr. Rollins was of the opinion that defendant would not benefit

from psychiatric treatment and believed that defendant's conduct

would continue in the future in a manner similar to that of the

past if he were to go free. In Dr. Rollins's opinion, defendant,

at the time of the crime, was aware that what he was Going was

wrong and thathe would be held responsible for his actions. Chief

District Court Judge George F. Bason of the Tenth Judicial District

testified that during the years Mr. Rook was involved in the

juvenile courts, no beneficial program was available to help

him.

Dr. Seymour Halleck, a psychiatrist, testified that

Gefendant's brutality probably resulted from his exposure to

brutality himself as a child. He also testified that defendant

suffered a mental illness although he was not insane. He stated:

I base my opinion on the fact that anybody that

uses as much alcohol and as many drugs as he has

and who has this kind of history of so much

deprivation, so little moral or social learning,

but I'm primarily based it on the drug issue,

anybody who uses these drugs cannot exercise

rational judgment, anybody with a degree of

alicoholism found in this family as the disease,

this kind of alcoholism is definitely a disease.

Dr. Halleck agreed with Dr. Rollins that defendant would not bene-

fit from psychiatric treatment for any brief period of time.

At the conclusion of the testimony, the trial court

instructed the jury on the sentencing phase. Three aggravating

circumstances were submitted to the jury: (1) whether the murder

was committed while defendant was engaged in the commission

of the rape of the victim; (2) whether the murder was committed

A-9

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while the defendant was engaged in the commission of the kid-

napping of the victim; and (3) whether the murder was especially

heinous, atrocious or cruel. Sixteen mitigating circumstances

were submitted to the jury. The jury found beyond a reasonable

ltne mitigating circumstances submitted to the jury were:

(1) That this murder was committed while John William

Rook was under the influence of mental or emotional

disturbance. “

(2) The capacity of John William Rook to appreciate the

criminality of his conduct or to conform his conduct

to the requirements of the law was impaired.

(3) The age of John William Rook at the time of this

murder is a mitigating circumstance.

(4) John William Rook, in his formative years, was

subjected to cruelty and physical abuse by his parents.

(S$) John William Rook, in his formative years, was sub-

jected to mental abuse by his parents.

(6) John William Rook, in his formative years, was

subjected to emotional abuse by his parents.

(7) John William Rook has been a loving and affectionate

husband to his wife.

(8) John William Rook has been loving and affectionate

to his brothers and sisters and their children. ¢

(9) John William Rook is an alcoholic.

(10) John William Rook is an abuser of drugs and is

addicted to drugs.

(11) John William Rook was sexually abused by an older

man whom he lived with when he was 10 years old

in order to have a more stable home environment.

(12) John William Rook had a deprived and chaotic

childhood in which he was schooled in violence and

criminality by his parents.

(13) John William Rook now has an IQ of 71 and received

very little education in his formative years.

(14) John William Rook, in his formative years, re-

ceived very little religious and moral training.

A-10

-lle

doubt each of the aggravating circumstances and that the aggra-

vating circumstances were sufficiently substantial to call for

the imposition of the death penalty. " The jury also found one

or more mitigating circumstances, although it did not eeciqnate

which of the sixteen were found, and then found beyond a

reasonable doubt that the aggravating circumstances outweighed

the mitigating circumstances. The jury then returned a recomm-

endation that the death penalty be imposed, and the ¢ourt entered

judgment imposing the death penalty for the crime of first degree

murder. Defendant also received consecutive life sentences for

the crimes of kidnapping and first degree rape. From these judg-

ments, defendant appealed of right to this Court.

II.

PRE-TRIAL PHASE

Prior to trial, defendant entered several motions which

were denied by the trial court. The denial of these motions pro-

vides the basis for four of defendant's primary contentions

on this appeal. He first contends that the trial court erred in

@Genying his motion to suppress custodial statements because tiie

findings of fact of the trial court in the order were not supported

by sufficient and competent evidence. He also contends that the

trial court erred in ruling that his confession was voluntary in

that it was obtained by the influence of hope or fear implanted

(15) John William Rook confessed in detail as to what he

did and cooperated with the detectives and

investigators of the Raleigh Police Department

and Wake County Sheriff's Department as to his

involvement.

(16) Any other circumstance or circumstances arising from

the evidence which you, the jury, deem to have

mt mi nmin walwe A-11]

-l12-

in his mind by the acts and statements of police officers during

his custodial interrogation. Defendant also contends that his

metion to suppress all evidence obtained as a result of the

search warrant issued for the trailer on Stovall Street and the

Mercury automobile should have been allowed because the record

reveals insufficient facts or circumstances to support the

finding of probable cause by the magistrate who issued the search

warrant. Finally, defendant contends that his motion to dismiss

the proceedings pursuant to G.S. 15A-2000 should have been allowed

on the grounds that that section of our General Statutes is un-

constitutional on its face and as applied to him. We discuss

these contentions seriatin.

A.

As a result of defendant's motion to suppress his

custodial statements, the trial court conducted an extensive voir

Gire hearing on the admissibility of the statements. Evidence

was presented both by the State and defendant. Thereafter, the

court entered extensive findings of fact and conclusions of law

and denied the motion. With respect to the trial court's order,

defendant first contends that certain findings of fact contained

therein were not supported by substantial and competent evidence.

We find no merit to this contention.

Defendant acknowledges the general rule in this juris-

diction that findings of fact made by the trial court following

a voir dire hearing on the voluntariness of a confession are

conclusive on appellate courts if supported by competent evidence

in the record. State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92

(1975). No reviewing court may properly set aside or modify

A-12

-l3-

those findings if so supported. State v. Barber, 278 N.C. 268,

2.79 S.E. 2d 404 (1971). Indeed, a trial judge's findings will

not be disturbed on appeal when the finding is supported by

competent evidence even when there is conflicting evidence.

State v. McRae, 276 N.C. 308, 172 S.E. 2d 37 (1970).

Here, the trial court found as a fact that “Lieutenant

Benson advised the defendant that he was a G.D. liar, and then

read a warrant to the defendant charging him with murder and

advised him that he was being charged with murder."

Defendant admitsthe truth of this finding but contends,

however, that it is incomplete. Defendant argues that this

finding should include a statement to the effect that Benson

stated that “He had good evidence against him [the defendant]

and that he didn't go down to the magistrate and get warrants

for first degree murder without good evidence against him.”

Defendant contends that the finding made by the trial court is

not a fair and clear statement of the events transpiring on

the evening of 15 May 1980 absent the language he would add.

We disagree. While there is some evidence from the defendant

on voir dire which supports his contention as to events trans-

piring during the interrogation, other evidence before the trial

court on voir dire supports the finding as stated. Indeed,

Detective Holder flatly denied that Detective Benson told the

defendant that he had “good evidence” implicating the defendant.

Detective Holder testified, "At the time Freddie [Benson] left

the room he did not say anything to him other than calling him

a@ liar." (Emphasis added.] Hence, the trial court's finding

was supported by competent evidence, and there was no error in

the failure of the trial court to make the extended finding

-l4-

formulated by the defendant.

Defendant next contends that the following finding of

fact was also not supported by competent evidence: "That Officer

Benson spoke to the defendant in a loud but not an angry or

threatening tone of voice.” Defendant contends that the finding

that the tone of voice used by Officer Benson during interrogation

was not angry or threatening is not supported by evidence. Defen-

dant primarily relies, in support of this argument, on the response

of Detective Holder on cross-examination that, “Freddie Benson

became very angry and upset at that time.” We do not think the

quoted testimony contradicts the trial court's finding that

Benson's voice was not “angry or threatening." Immediately

following the quoted testimony, Holder further testified that

“Freddie Benson raised his voice. He didn't yell at him. He

just raised his voice." Moreover, Benson himself testified

that, "I used a loud tone of voice to tell him he was lying

. « « I @id not at any time threaten, make any promises or strike

Mr. Rook when I was in the room." Immediately following this

incident, Detective Benson left the room and took no further

part in interrogation of the defendant. Thus, the trial court's

finding that Detective Benson's tone of voice was loud but not

angry is supported by evidence and is binding on this Court.

Defendant next objects to the following finding cf fact:

“Holder advised the defendant that neither he nor Officer Lanier

’ could help him and that the only thing that could help him was

to tell the truth." Defendant contends that while there is

conflicting evidence as to what Detective Holder did in fact

tell the defendant concerning helping him, it is clear that the

tenor of Holder's conversation with defendant prior to his con-

A-14

fession was concern with giving him help for his drinking and drug

problems. Defendant contends that Detective Holder “implicitly”

promised to help the defendant. Again, we disagree. Even the

defendant concedes that the evidence on this finding is “conflicting,”

and we find that the record reveals compelling evidence which

supports the trial court's finding. Detective Holder testified:

I told Johnny at that point, I said, Johnny,

I can't help you. We cannot help you. The only

thing that can help you is the truth. . . .

I reemphasized the point that the only thing

for him to do at that point was to tell the truth,

that I could not help him, Mr. Lanier could not

help him.

. . « I told Johnny, I can't help you, Mr.

Lanier cannot help you. The only thing that can

help you is the truth. And that was it.

. . « And, I told Johnny several times, I

said Johnny, I can't help you.

Clearly, there is abundant evidence to support the trial court's

findings.

Defendant next contends ti.at the trial court erred in

entering the following finding of fact:

At no time did either officer advise or promise

the defendant that he could or would be helped in

court or with the District Attorney on the charges

against him and offered no help to him with his

alceholic problems.

Defendant also contends that certain other findings similar to

that quoted above regarding the offer of help to him with respect

to his alcoholic problems are unsupported by evidence at the voir

dire hearing. Defendant contends, as we address more fully in

the next section of this opinion, that the evidence clearly shows

that the defendant's confession was induced by an offer of help

to keep him from receiving the death penalty and that, in return

A-15

for confessing, he was told that he would be sent to prison where

he would receive help for his drinking and drug problems. All

findings to the contrary, defendant contends, are unsupported

by the evidence.

There is simply no merit to defendant's contentions

in this regard. The record is replete with testimony to support

all of the trial court's findings that no offer of help was made

to defendant in order to induce him to make his confession. For

example, Detective Holder testified:

I never offered or advised Mr. Rook that

he could be helped in court. I never advised

that he could be helped with the District

Attorney's Office with respect to these charges.

. . « Neither me nor Mr. Lanier offered

to help Mr. Rook with his alcohol problem

specifically. He seemed to understand that if

he went back to prison he could get this help.

We did not promise him any help at all. I éid

not make any promises with respect to the charges

pending against him.

. « « I said, Johnny, is there anyone in

this room, Mr. Lanier, myself and Miss Mobley,

have they promised, have I promised or threatened

you or put you under any pressure or coerced you

in any way to make this statement. He said,no.

No one during the course of the interview

touched Mr. Rook's person in any threatened

manner, strike him, or do anything of that nature

to him.

We hold, therefore, that each of the challenged findings of fact

is supported by competent evidence in the record and is binding

on this Court. Moreover, we have examined the remaining findings

of fact in the order denying suppression of defendant's con-

fession and find that each of them is supported by competent

A-16

evidence adduced at the voir dire hearing. These assignments of

error are overruled.

B.

With respect to the trial court's order denying defendant's

motion to suppress his custodial statements, defendant next con-

tends that the trial court's findings of fact do not support its

conclusion of law that his confession was vouluntarily and

understandingly made. Defendant contends that the circumstances

of his confession were such that the confession was obtained by

the influence of hope and fear implanted in his mind by the acts

and statements of police officers during his custodial interrogation.

As noted in the preceding section of this opinion, facts

found by the trial court are conclusive on appellate courts when

supported by competent evidence. Nevertheless, the conclusions

of law drawn from the facts found are not binding on the appellate

court. State v. Bishop, 272 N.C. 283, 158 S.E. 2d 511 (1968).

Hence, whether the conduct and language of the investigating

officers amounted to such threats or promises or influenced the

defendant by hope and fear as to render the subsequent con-

fession involuntary is a question of law, as defendant contends,

reviewable on appeal. State v. Fox, 274 N.C. 277, 163 S.E. 2d

492 (1968); State v. Biggs, 224 N.C. 23, 29 S.E. 24 121 (1944).

Even where the procedural safeguards required by Miranda v.

Arizona, 384 U.S. 426, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1968),

are recited by the officers and defendant signs a waiver stating

that he understands his constitutional rights, including his right

to counsel, the ultimate test of the admissibility of a confession

still remains whether the statement made by the accused was in

A-17

-18-

fact voluntarily and understandingly given. The fact that the

technical procedural requirements of Miranda are demonstrated by

the prosecution is not, standing alone, controlling on the question

of whether a confession was voluntarily and understandingly made.

The answer to this question can be found only from a consideration

of all circumstances surrounding the statement. State v. Bishop,

272 N.C. 283, 158 S.E. 2¢ 511; accord, Davis v. North Carolina,

384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 24 895 (1966); State v.

Pruitt, 286 N.C. 442, 212 S.E. 2d 92.

Our inquiry, therefore, is whether the facts revealed

by the record before us indicate that the challenged confession

was obtained by the influence of hope or fear implanted in

defendant's mind by the acts and statements of the police officers

during defendant's custodial interrogation. The long-standing

rule in this jurisdicticn was stated by Chief Justice Taylor in

State v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1827):

The true rule is, that 4 confession cannot be

received in evidence, where the Defendant has

been influenced by any threat or promise; fo.,

as it has been justly remarked, the mind, under

the pressure of calamity, is prone to acknowledge,

indiscriminately, a falsehood or a truth, as

different agitations may prevail; and therefore

a confession obtained by the slightest emotions

of hope or fear, ought to be rejected.

Justice Henderson, concurring, set forth the rule which we have

followed since:

Confessions are either voluntary or involuntary.

They are called voluntary, when made neither under

the influence of hope or fear, but are attributable

to that love of truth which predominates in the

breast of every man, not operated upon by other

motives more powerful with him, and which, it is

said, in the perfectly good man, cannot be counter-

vailed. These confessions are the highest evidences

of truth, even in cases affecting life. But it is

said, and said with truth, that confessions induced

by hope, or exhorted by fear, are, of all kinds of

A-18

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evidence, the least to be relied on, and are

therefore entirely to be rejected... .

Id. at 261-62. In State v. Pruitt, 286 N.C. 442, 212 S.E. 2a 92,

Justice Branch, now Chief Justice, noted the rules quoted

above and summarized the numerous cases decided by this Court

involving various factual backgrounds on this question. Here,

defendant relies on Pruitt to support his contention that his

confession was obtained by the influence of hope and.fear. We

think, however, that his reliance on Pruitt is misplaced. In

Pruitt, the interrogation of defendant by three police officers

took place ina “police-dominated atmosphere.” The evidence was

uncontradicted that the officers repeatedly told defendant that

they knew he had committed the crime and that his story had too

many holes in it; that he was "lying" and that they did not want

to "fool around.” Such circumstances, this Court held, gave rise

to the inference that the language used by the officers tended

to provoke fright. Such language was then tempered by statements

that the officers considered defendant the type of person "that

such a thing would prey heavily upon” and that he would be

"relieved to get it off his chest." These “flattering” statements

were capped by the statement that "it would simply be harder on

him if he didn't go ahead and cooperate.” Justice Branch con-

cluded, “Certainly the latter statement would imply a suggestion

of hope that things would be better for defendant if he would

cooperate, i.e., confess." Id. at 458, 212 S.E. 2d at 102.

Here, there is no evidence of any oppressive environ-

ment in the room where defendant was interviewed. It was a normal

interview room at the Wake County Courthouse, approximately eight

A-19

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feet by fifteen feet, with a table and chairs and lighted by normal

ceiling lights. Initially, there were three officers in the room

when defendant was read his rights, but the evidence indicates

that no more than one officer talked with him at a time. Detective

Benson left the room shortly after the rights were read and

Detective Holder became the sole questioner. Officer Lanier asked

questions only after defendant had confessed. We have held on

numerous occasions that a confession is not made inadmissible

merely because it is made to officers of the law, or because

defendant was in jail, or under arrest, or because it was given

in response to questioning. E.g., State v. Pruitt, 286 N.C. 442,

212 S.E. 24 92; State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938).

Moreover, there is no evidence that defendant was sub-

jected to any threats or suggested violence or show of violence

to persuade or induce him to make a statement. Indeed, the

evidence that was presented showed that no threats were made to

the defendant, nor was he touched or struck in any manner. As

discussed in the preceding section of this opinion, there is ample

and competent evidence to support the trial court's findings that

"Officer Benson spoke to defendant in a loud but not angry or

threatening tone of voice.”

Defendant apparently relies primarily, in attacking the

voluntariness of his confession, on the argument that he was

"induced" to make his statement by an offer of “help” from Detective

Holder. As discussed in the preceding section of this opinion,

however, we find competent evidence to support the trial court's

finding that no such “help” was offered. Moreover, the record

is clear that all talk of “help” emanated from the defendant

A-20

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himself. At each juncture when defendant mentioned that he “needed

help” with his alcohol problem, Officer Holder was quick to tell

him that he could not help him. The evidence overwhelmingly

supports the trial court's finding of fact and conclusion of law

that the officers did nothing to induce defendant's confession

through hope or fear. The situation here is more similar to that

in State v. Small, 293 N.C. 646, 239 S.E. 2d 429 (1977). In

Small, the uncontradicted evidence showed that one of the officers

had told the defendant that he could not “buy” one of defendant's

statements and that defendant should tell the truth. This Court

held that such statements “do notconstitute a persuasive showing

that defendant's will was overborne by these acts of the police

officers.” Id. at 653, 239 S.E. 2d at 435.

Finally, we reiterate the rule stated in Pruitt that

any improper inducement generating hope must promise relief from

the criminal charge to which the confession relates, and not

to any mere collateral advantage. Here, ail discussions con-

cerning any “help” for defendant were centered around defendant's

drinking and family problems. Clearly, these are matters entirely

collateral to the criminal charges against him.

This Court has consistently followed the rule enunciated

by Justice Henderson in his Roberts concurrence. In Pruitt, we

summarized numerous cases demonstrating this Court's adherence

to that rule. We have made it equally clear, however, that

custodial admonitions to an accused by police officers to tell

the truth, standing by themselves, do not render a confession

inadmissible. State v. Thomas, 241 N.C. 337, 85 S.E. 24 300 (1955);

State v. Thompson, 227 N.C. 19, 49 S.E. 24 620 (1946); State v.

A-21

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Thompson, 224 N.C. 661, 32 S.E. 24 24 (1944). Such custodial

admonitions to tell the truth are all we find from the record

before us. Here, as discussed in the preceding section of this

opinion, there was ample evidence to support the trial judge's

findings that defendant's confession was not coerced, and the

findings in turn support his conslusion that the incriminating

statement was made voluntarily and knowingly. We hold that the

-

confession was properly admitted into evidence.

Cc.

Prior to trial, defendant moved for the exclusion of

all evidence obtained as a result of the search of the trailer

where the defendant lived and all evidence obtained as a result

of the search of the Mercury automobile on the ground that there

was not probable cause for the issuance of the search warrant.

The searches resulted in the seizure of certain bloody clothing

which was introduced into evidence against defendant. Defendant

attacks the search warrant in question on the grounds that (1)

the application for the search warrant failed to contain suffi-

cient facts and circumstances to indicate that the items sought

constituted evidence of any crime, and (2) that the search

warrant failed to contain sufficient facts or circumstances to

indicate that the items would be in the trailer in question.

These arguments are governed by well-established legal

principles. The probable cause required by the fourth amendment

and G.S. 15A-243-245 is simply:

a reasonable ground to believe that the proposed

search will reveal the presence, upon the premises

to be searched, of the objects sought and that those

objects will aid in the apprehension or conviction

of the offender. [Citation omitted.] Thus, the

; A-22

-23-

affidavit upon which a search warrant is issued

is sufficient if it “supplies reasonable cause

to believe that the proposed search for evidence

of the commission of the designated criminal

offense will reveal the presence upon the described

premises of the objects sought and that they will

aid in the apprehension or conviction of the

offender.”

State v. Riddick, 291 N.C. 399, 406, 230 S.E. 2d 506, 511 (1976)

(quoting State v. Vestal, 278 N.C. 561, 576, 180 S.E. 2d 755,

765 (1971), cert. denied, 414 U.S. 874 (1973)). Accor, State v.

Jones, 299 N.C. 298, 303, 261 S.E. 2d 860 (1980). Whether

probable cause exists for the issuance of a search warrant depends

upon a practical assessment of the relevant circumstances, and

each case must be decided on its own facts. Reviewing courts will

pay deference to judicial determinations of probable cause,

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723

(1964); State v. Louchheim, 296 N.C. 314, 250 S.E. 2d 630, cert.

denied, 444 U.S. 836 (1979); “the resolution of doubtful or

marginal cases in this area should be largely determined by the

preference to be accorded to warrants,”United States v. Ventresca,

380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 24 684, 689 (1965).

A search warrant cannot be issued upon affidavits which are purely

conclusory and which do not state underlying circumstances upon

which the affiant's belief of probable cause is founded; there

must be facts or circumstances in the affidavit which implicate

the premises to be searched. State v. Edwards, 286 N.C. 162, 209

S.E. 24 758 (1974); State v. Campbell, 282 N.C. 125, 191 S.E. 2a

752 (1972). With these principles before us, we review the search

warrant and the affidavit upon which it was obtained.

An examination of the application, prepared by Officer

Bissette, indicates that the items sought included “a wooden

A-23

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club or instruments that could be used as a club, bloody clothing,

and other instrumentalities of the crime," which was stated to be

"rape, kidnapping, murder.” In this connection, the application

contained an affidavit from Officer Bissette which averred:

On May 15, 1980, at 4:30 p.m.,- the vehicle, a

1972 Mercury, N.C. license # RAP-980, that the

murder victim, Ann Marie Roche, was seen being

forced into on May 12, 1980, was located at

Stovall Drive Raleigh, N.C. The person in

control of the vehicle, Ruby Howell, states .-.

that it is her mother's car and that she

drives it and keeps it all the time. She

states that on Monday, May 12, 1980, her

neighbor, Johnny Rook, who lives at Lot 15,

College View Trailer Park, 1508 Stovall Drive,

borrowed the car at 5:45 p.m. and returned the

car about two hours later. At the time he

returned the car he had fresh cut marks on

his face and blood on his arms. Johnny Rook

is a white male with long blond hair that

he wears in a pony tail. At the time he

borrowed the car he was dressed in blue

jeans and shoes only. . .. The murder victim

was seen being forced into this car at 7:30

p.m. on Avent Ferry Road at Lake Raleigh

Road by a white male wearing only blue jeans

and shoes and using an object appearing to be

a club to beat the victim. Her body was found

on May 13, 1980 approximately one-fourth mile

from this intersection nude with massive head

and body injuries. m

The information contained in this affidavit clearly establishes

probable cause to believe that a "wooden club or instruments that

could be used as a club” and “bloody clothing” constituted evidence

of the crimes being investigated, that a club, or an object

appearing to be a club, was in the possession of defendant and

was used as an instrumentality in committing the crime being

investigated, and that “bloody clothing” would constitute

evidence of the offenses committed or would reveal the identity

of a person participating in those offenses. Additionally, the

items sought to be discovered were sufficiently described to

A-24

=-25-

enable officers to identify them.

Defendant argues, however, that the application for the

search warrant failed to allege sufficient facts or circumstances

which would indicate that the items sought would be discovered in

the trailer to be searched. We disagree. The portion of the

application dealing with this issue reads:

Ruby Howell states .. . that on Monday, May 12,

1980, her neighbor, Johnny Rook, who lives in

Lot 15, College View Trailer Park, 1508 Stovall

Drive, borrowed her car at 5:45 p.m. and returned

the car about two hours later. ... At the time

he borrowed the car he was dressed in blue jeans

and shoes only. She stated that after he returned

° the car he went to Lot 15, his residence in the park.

He lives in this trailer in the first bedroom on the

right. The trailer is rented by Barry E. Staton.

Johnny Rook has access to the entire trailer,

oe according to a statement of Barry E. Staton. ...

These facts or circumstances, in our opinion, supply reasonable

cause to believethat the club-like object ang the bloody clothing

would be found on the premises to be searched.

The affidavit upon which the probable cause determination

was based contained specific,and not purely conclusory, allegations

and stated underlying circumstances upon which the affiant's

belief of probable cause was founded. Clearly, there were facts

and circumstances in the affidavit implicating the premises to be

searched. A practical assessment of the information before the

magistrate would clearly allow a reasonable person to conclude

that the information contained in the application was credible and

that the proposed search would reveal, upon the premises to be

searched, the presence of the objects sought and that those

objects would aid in the apprehension or conviction of the offender.

Issuance of the search warrant by the magistrate on the informa-

tion available to him was, under the law of this State, clearly

A-25

justified.

D.

By this assignment defendant challenges the constitu-

tionality of G.S. 15A-2000(e), the provision governing the sub-

mission of aggravating circumstances in the penalty phase of

a first degree murder trial, both on its face and as applied

in this case. The exceptions on which this assignment is based

challenge the trial court's denial of defendant's pre-trial motion

to dismiss the penalty phase proceedings and the trial court's

entry of judgment imposing the death penalty upon the jury's

recommendation.

Defendant contends that the list of permissible aggra-

vating circumstances violates the eighth and fourteenth emend-

ments to the United States Constitution in that the circum-

stances listed are vague and overlapping and may cause the jury

arbitrarily and capriciously to impose the death penalty. De fen-

dant acknowledges that this Court has considered the issue of the

constitutionality of G.S. 15A-2000(e) and has decided the issue

adversely to him, State v. Barfield, 298 N.C. 306, 259 S.E. 2d

510 (1979), cert. denied, 448 U.S. 907 (1980), but requests that

we reconsider that ruling. We are not so inclined.

In Barfield, the defendant challenged the constitutionality

of the statutorily defined aggravating circumstances as "vague

and without definition." In rejecting this claim this Court, per

Justice Britt, noted:

Sentencing standards are by necessity some-

what general. While they must be particular enough

to afford fair warning to a defendant of the probable

penalty which would attach upon a finding of guilt,

they must also be general enough to allow the courts

to respond to the various mutations of conduct which

A-26

society has judged to warrant the application of

the criminal sanction. See Gregg v. Georgia, 428

U.S. at 194-195, 49 L. Ed. 2d at 886-887, 96 S.

Ct. at 2935. While the questions which these

sentencing standards require juries to answer are

difficult, they do not require the jury to do

substantially more than is ordinarily required

of a fact finder in any lawsuit. See Proffitt v.

Florida, 428 U.S. at 257-258, 49 L. Ed. 2d at 926,

96 S. Ct. at 2969. The issues which are posed to

a jury at the sentencing phase of North Carolina's

bifurcated proceeding have a common sense core of

meaning. Jurors who are sitting in a criminal

trial ought to be capable of understanding them

and applying them when they are given appropriate

instructions by the trial court judge. See Jurek

v. Texas, 428 U.S. at 279, 49 L. Ed. 2d at 939,

96 S. Ct. at 2959 (White, J., concurring).

Id. at 353, 259 S.E. 2d at 543. We adhere to this reasoning and

reaffirm our holding that the aggravating circumstances listed

in G.S. 15A-2000(e) are not so vague as to violate due process

or to allow a jury arbitrarily and capriciously to impose the

death penalty. This assignment of error is overruled.

Defendant specifically challenges the constitutionality

of the statutory aggravating circumstance of the capital felony

being “especially heinous, atrocious or cruel,” G.S. §& 15A-

2000(e) (9) (1978), in that it requires a subjective evaluation of

the evidence by the jurors. We disagree. This argument was re-

jected by this Court in State v. Goodman, 298 N.C. l,

257 S.E. 24 569 (1979). In Goodman, we recognized that while

the United States Supreme Court has found a statute employing

similar language to be unconstitutional because it allowed

the jury too much latitude, Gregg v. Georgia, 428 U.S. 153, 96

S. Ct. 2909, 49 L. Ed. 24 859 (1976), that Court has upheld

similarly worded statutes whose meaning has been carefully limited

by judicial construction, Proffittv. Florida, 428 U.S. 242, 96

S. Ct. 2960, 49 L. Ed. 24 913 (1978). Accordingly, in Goodman we

A-27

-28-

interpreted our statutory aggravating circumstance of “heinous,

atrocious or cruel” as "‘the conscienceless or pitiless crime

which is unnecessarily torturous to the victim,'” id. at 25,

257 S.E. 2d at 585 quoting State v. Dixon, 283 So. 2d 1, 9

(Fla. 1973), cert. denied, 416 U.S. 943 (1974)), the same inter-

pretation approved by the United States Supreme Court in Proffitt,

428 U.S. at 255-56, 96 S. Ct. at 2968, 49 L. Ed. 2d at 924-25.

Based on our reasoning in Goodman and that of the United States

Supreme Court in Proffitt, we once again affirm the constitu-

tionality of this aggravating circumstance.

Nor do we think that the trial court's instructions on

this aggravating circumstance were so vague as to violate due

e-

process. With regard to this factor, the trial court told the

jury:

Now, I instruct you, members of the jury,

that in this context heinous, as that word is used,

means extremely wicked or shockingly evil.

Atrocious, as used there, means outrageously

wicked and vile. And cruel means designed to

inflict a high degree of pain with utter

indifference to, or even enjoyment of the

suffering of others.

However, it is not enough that this murder

be heinous, atrocious or cruel, as those terms

have just been explained to you, this murder

must have been especially heinous, atrocious

or cruel, and not every murder is especially

so.

For this murder to have been especially

heinous, atrocious or cruel, any brutality which

was involved in it must have exceeded that which

is normally present in any killing.

The murder must have been a conscienceless

or pitiless crime which was unnecessarily tortu-

rous to the victin.

This instruction accords with the construction of G.S. 15A-2000(e) (9)

adopted in Goodman, and its submission to the jury was proper on

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the evidence in this case. The evidence summarized in Section I

of this opinion reveals the most gruesome murder imaginable and

is sufficient to allow the jury to find that this was a "“con-

scienceless or pitiless crime which was unnecessarily torturous

to the victim.”

Defendant further contends, however, that the decision

of the United States Supreme Court in Godfrey v. Georgia, 446

U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), compels a

reversal of our holding in Goodman. We disagree. In Godfrey,

both victims died instantly from a gunshot wound to the head.

The aggravating circumstance of the crime being “outrageously

or wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind, or an aggravated battery to the victim,”

was submitted by the trial court and approved by the Georgia

Supreme Court. The United States Supreme Court reversed the

death sentence, holding that the Georgia Supreme Court had

failed to be consistent in its interpretation of this aggravating

circumstance. In earlier decisions, the Georgia Supreme Court

had interpreted this aggravating circumstance to require a showing

of torture or aggravated battery to the victim. In the case of

the Godfrey murders, the victims died instantly and the United

States Supreme Court reasoned that “There is no principled way to

Gistinguish this case, inwhich the death sentence was imposed,

from the many cases in which it was not.” Id. at 433, 100 S. Ct.

at 1767, 64 L. Ed. 2d at 409.

This Court has avoided the problem presented by Godfrey

by holding that this aggravating circumstance does not arise in

cases in which death was immediate and in which there was no

unusual infliction of suffering on the victim. State v. Goodman,

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-30-

298 N.C. 1, 24-26, 257 S.E. 2d 569, 585; accord, State v. Oliver

and Moore, 302 N.C. 28, 274 S.E. 2d 183 (1981). The instructions

given by the trial judge here accorded with this interpretation

and the evidence revealed by the record supports the submission

of this aggravating circumstance to the jury. The record shows

aggravated battery of the victim amounting to torture which

necessarily caused her great physical pain and emotional distress.

Thus, we hold that the instruction given complied with constitu-

tional requirements and that the submission of the aggravating

circumstance that the murder was especially heinous, atrocious

or cruel was proper.

We conclude that the statutory scheme for determining

the sentence in a capital case, G.S. § 15A-2000, is neither un-

constitutional on its face nor as applied to this defendant.

Til.

GUILT PHASE

Defendant next contends that the trial court erred in

Genying his motion to dismiss the charge of murder in the first

degree based on premeditation and deliberation. In presenting

this contention, defendant argues that the evidence from the

pathologist and the defendant's statement establish (1) that Ms.

Roche did not die immediately from any one blow or injury but

from blood loss resulting from all of her injuries; (2) that

the injuries to Ms. Roche's head were caused by defendant's

hitting her with a tire tool; (3) that the injuries to her leg

were caused by defendant's running over her with his automobile;

and (4) that the exculpatory statements in his confession in-

troduced by the State clearly established that he did not mean

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-3l-

to strike Ms. Roche with the knife nor did he mean to run over

her with the automobile. Defendant strongly urges that his own

statement was the only evidence introduced by the State as to how

Ms. Roche was injured and how she ultimately died and that there

was no evidence contradictory to the defendant's statement that

he did not mean to strike her with the knife or run over her.

Hence, defendant argues that the State, by introducing his con-

fession in which he claimed that the knife and automobile injuries

were accidental, is bound entirely by the truth of such statements

and that although the submission of the murder charge was proper

under the felony murder rule, it was not proper under the theory

of premeditation and deliberation. This is significant, defendant

notes, because if submission of the murder charge were proper only

under the felony murder rule, then rape should not have been sub-

mitted to the jury as an aggravating factor in the sentencing

phase under State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),

cert. denied, 446 U.S. 941 (1980). Had that aggravating factor

not been submitted to the jury, defendant contends, the jury

might possibly have found that the numerous mitigating circum-

stances outweighed the aggravating factors and would have recommended

life imprisonment.

In presenting this argument, defendant is relying

primarily on the principle of law enunciated by this Court in

State v. Carter, 254 N.C. 475, 119 S.E. 2d 461 (1961). There,

this Court stated:

When the State introduces in evidence

exculpatory statements of the defendant which

are not contradicted or shown to be false by

any other facts or circumstances in evidence,

the ovate is bound by the statements. [Citations

omitted -]

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And when the State's evidence and that of

the defendant is to the same effect, and tend

only to exculpate the defendant, his motion for

judgment as of nonsuit should be allowed.

Id. at 479, 119 S.E. 2d at 464.

The principle has remained viable in this jurisdiction.

Defendant has, however, ignored other rules which must be applied

by this Court in reviewing the trial court's denial of the motion

to dismiss. It is likewise the rule in this jurisdiction that

the introduction by the State of a statement of the defendant

which includes exculpatory assertions does not prevent the State

from showing facts which contradict the exculpatory statements.

Moreover, on motions to dismiss, only evidence favorable to the

State is considered. State v. Witherspoon, 293 N.C. 321, 237

S.E. 24 822 (1977). Put another way, the State is not bound by

the exculpatory portions of a confession which it introduces if

there is “other evidence tending to throw a different light on

the circumstances of the homicide.” State v. Bright, 237 N.C.

475, 477, 75 S.E. 2d 407, 408 (1953).

This Court answered a similar argument in State v. May,

292 N.C. 644, 235 S.E. 24 178, cert. denied, 434 U.S. 928 (1977).

There, it was said:

Defendant assigns as error the failure of the

trial court to enter judgment as of nonsuit at the

close of all the evidence. Specifically, the

defendant contends that he comes within the purview

of the rules stated in State v. Carter, 254 N.C.

475, 479, 119 S.E. 2d 461, 464 (1961), that “[w]hen

the State introduces in evidence exculpatory statements

of the defendant which are not contradicted or shown

to be false by any other facts or circumstances in

evidence, the State is bound by these statements.”

See also State v. Bolin, 281 N.C. 415, 189 S.E. 2d

735 (1972). However, the introduction by the State

of an excul

necessitate a nonsuit if the State contradicts

Or rebuts the defendant's exculpatory Statement. ...

Id. at 658, 235 S.E. 2d at 187 (emphasis added).

We find the emphasized portion of the rule cited from

May applicable here. Crucial to defendant's contention is his

insistence that the cause of Ms. Roche's death was injury suffered

at his hands which he states in his confession he did not “mean

to” inflict. He relies on the pathologist's testimony that all

the injuries together caused her death to support his argument.

A close reading of Dr. Copeland's testimony, however, indicates

that he stated only that “none of the injuries taken together

or acting singularly would have produced immediate death.”

(Emphasis added.) He also testified that the two injuries which

were significantly severe to produce the blood loss causing death

were the injuries to the thigh due to the broken leg and the

injuries to the head. There is nothing in the defendant's con-

fession which implies that he did not intend to strike the victim

about the head area with the tire tool, and defendant does not

so contend on appeal. Indeed, defendant confessed to striking

the victim with the tire tool prior to sexually assaulting her

and that he continued to beat her thereafter. Defendant obtained

the tire tool from the trunk of the vehicle because the victim

was resisting defendant's sexual assaults, presumably to gain her

submission. Such forethought and execution constitute pre-

meditation and deliberation. It is clear from the pathologist's

testimony that the injuries to the head area significantly con-

tributed to the victim's blood loss and ultimate death and from

Gefendant's own statement that these injuries were deliberately

inflicted. This evidence, taken in the light most favorable to

A-33

the State, sufficiently shows premeditation and deliberation

to withstand defendant's motion to dismiss.

Other evidence gleaned from the record tends "to throw

a different light on the circumstances of the homicide,"State v.

Bright, 237 N.C. at 477, 75 S.E. 24 at 408. Defendant's state-

ment that he did not “mean to hit her” with the knife is con-

tradicted by competent circumstantial evidence. From the place-

ment, depth and straight lines of the cuts on the upper body,

the pathologist concluded “that they were made in an intentionally

superficial manner. . .. [Such a cut] is made deliberately shallow

with some care and effort... .”"

Moreover, physical evidence obtained by the officers from

the murder scene substantially contradicts defendant's assertion

that he did not “mean” to run over the victim. It is unnecessary

to repeat that evidence here. Suffice it to say that the location

of the victim's body in relation to the pile of clothing and

the size of the field in which these brutal acts took place

seriously challenge defendant's assertion that he accidentally

ran over the victin.

In another case in which the defendant attacked the

sufficiency of the evidence to support a jury finding of pre-

meditation and deliberation, we recently stated:

In the instant case, the State presented evidence

tending to show that defendant choked the deceased,

pushed her out of the car, and ran over her

several times. The requisite premeditation and

deliberation could be inferred from the brutal

nature of the assault, the use of grossly

excessive force or the “dealing of lethal blows

after the deceased had been felled.” [Citations

omitted.] We hold that there was plenary

evidence to support a jury finding that the

defendant killed Ms. Grossnickle with pre- °

meditation and deliberation.

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State v. Ferdinando, 298 N.C. 737, 741-42, 260 S.E. 2d 423, 426

(1979).

We hold, in the instant case, that the State submitted

abundant evidence to support the trial court's denial of defen-

dant's motion to dismiss the murder charge on the theory of pre-

meditation and deliberation.

IV.

SENTENCING PHASE

Defendant assigns two errors to the sentencing proceedings.

He first argues that the trial court erred in submitting the felony

of rape as an aggravating circumstance during the sentencing

determination phase and, secondly, that the trial court erred in

failing to instruct the jury to indicate which of the mitigating

circumstances it found to exist. We discuss these contentions

seriatim.

A.

Defendant contends that the trial court erred in sub-

mitting the underlying felony of rape as an aggravating circum-

stance in his sentencing hearing and that he should not have been

sentenced for the crime of rape even thougithe jury found him

guilty of murder under both the theories of premeditation and

deliberation and felony murder. We considered this question in

State v. Goodman, 298 N.C. 1, 267 S.E. 2d 569 (1979), and held

that when the defendant has been convicted of first degree murder

on both the premeditation and deliberation and the felony murder

theories, the inclusion of the underlying felony as an aggra-

vating circumstance is proper. The commission of the “underlying”

felony is not an essential element of the crime of premeditated

A-35

-36-

murder and, thus, is not the “automatic” aggravating circumstance

which we held in Cherry to be impermissible. See State v. Cherry,

298 N.C. 86, 257S.E. 24 551 (1979). Because this defendant was

found guilty of first degree murder under both theories, there

was no error in submitting the rape as an aggravating circumstance.

Likewise, Goodman answers defendant's contention that he

should not have been sentenced on the rape offense. There, we

said: ;

[D)efendant contends that he was improperly

sentenced for the offenses of kidnapping and

armed robbery as those offenses merged with the

murder conviction. As we have already said, no

merger of the felony occurs when the homicide

conviction is based upon the theory of premeditation

and deliberation. [Citation omitted.] Defendant

was found guilty by virtue of premeditation and

deliberation as well as by application of the

felony-murder rule. Thus, the court could dis-

regard the felony~murder basis of the homicide

verdict and impose additional punishment upon

defendant for the crimes of armed robbery and

kidnapping.

State v. Goodman, 298 N.C. at 20, 257 S.E. 2d at 582 . Here,

therefore, the trial court properly sentenced defendant for the

crime of rape. These assignments of error are without merit.

B.

Defendant next contends that the trial court erred in

failing to provide a space on the “Issues and Recommendation

As to Punishment” form for the jury to list which of the specific

mitigating circumstances it found or did not so find. Defendant

believes that, since the aggravating factors must be specifically

answered, the mitigating factors should be specified also.

Defendant contends that failure to list which mitigating factors

were found or not found impairs this Court's ability to give

appropriate review to the sentencing phase of the case. While

A-%

-37-

defendant makes a good argument that it is the better practice, and we

agree, —_——

/to require the jury to specify mitigating factors found and not

found for the benefit of this Court in reviewing the appropriateness

of the death penalty, we find no such requirement in our statutes.

G.S. 15A-2000, which sets out the procedures for the

sentencing phase in a capital case, requires that the jury indi-

cate in writing which of the statutory aggravating circumstances

it finds beyond a reasonable doubt. G.S. § 15A-2000(¢) (1) (1978).

There exists no corresponding requirement regarding the miti-

gating circumstances considered by the jury. Instead, in

recommending the death penalty the jury is required to state in

writing only whether the mitigating circumstances found are in-

sufficient to outweigh any aggravating circumstances found. G.S.

§ 15A-2000(c) (3) (1978). Thus, when this Court reviews the death

sentence on appeal, we will have before us, by virtue of the

reguirements of the statute, a list of the aggravating circum-

stances submitted and those found, a list of the mitigating

circumstances submitted, and a statement that any

mitigating circumstances found are insufficient to out-

weigh the aggravating circumstances. Although some records

presented to this Court have indicated which mitigating circum-

2

stances were found by the jury,“ such information is not required

rhe records in the following cases included specific

findings on the mitigating circumstances submitted to the jury:

State v. Hamlette, 302 N.C. 490, 276 S.E. 2d 388 (1981); State v.

Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981); State v. Oliver and

Moore, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Small, 301

N.C. 407, 272 S.E. 2d 128 (1980); State v. Detter, 298 N.C. 604,

260 S.E. 2d 567 (1979); State v. Johnson, 298 N.C. 355, 257 S.E.

2d 597 (1979); State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391

(1979); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),

A-37

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to be presented by G.S. 15A-2000(d). Thus, if there exists a

requirement of specific findings on the mitigating circumstances

submitted, it must arise from a constitutional guarantee.

In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49

L. Ed. 24 859 (1976), the United States Supreme Court upheld

the Georgia statutory scheme for imposition of the death penalty

in the face of a constitutional attack because, in its opinion,

o* f

the Georgia procedure provided a reliable safeguard acainst Cw

1 oe

arbitrary, excessive and disproportionate death sentences by

limiting and guiding the jury's discretion and by providing

———EE—

automatic appellate review of all aspects of the sentencing.

The Georgia procedure is similar to our own statutory

scheme. In Georgia courts, once guilt has been determined, the

same jury (unless the jury is waived by the defencant) hears

evidence concerning the circumstances of the crime and the criminal

before making a recommendation as to the sentence. In reaching

a sentence recommendation, the jury considers any mitigating

circumstances and aggravating circumstances which it finds to

exist. Georgia law does not enumerate what circumstances con-

stitute mitigating factors but, instead, allows the juz to

determine whether any facts proved at the sentencing hearing

mitigate against imposition of the death penalty, limited only

by the requirement that the mitigating circumstance be “authorized

by law." Ga. Code Ann. § 27-2534.1 (1978). Furthermore, the

trial court in its charge to the jury need not single out specific

cert. denied, 446 U.S. 941 (1980); State v. Johnson, 298 N.C. 47,

S.E. 2a 752 (1979); State v. Goodman, 298 N.C. 1, 257 S.E. 24

569 (1979); State v. Jones, 296 N.C. 495, 251 S.E. 2d 425 (1979).

A-38

=-39-

mitigating circumstances. Spivey v. State, 241 Ga. 477, 246

S.E. 24 288, cert. denied, 439 U.S. 1039 (1978); Potts v. State,

241 Ga. 67, 243 S.E. 24 510 (1978). With regard to mitigating

circumstances, it is enough that the jury be told to “consider

all evidence submitted in both phases of the trial in arriving

at your verdict, including any and all evidence of mitigating

circumstances.” Collier v. State, 244 Ga. 553, 568-69, 261 S.E.

2c 364, 376 (1979), cert. denied, 445 U.S. 946 (1980) . This is

so even though aggravating circumstances must be submitted to

the jury in writing. Id. Like the North Carolina statute, the

Georgia statute requires the jury to return specific findings

only as to the aggravating circumstances submitted. Ga. Code

Ann. § 27-2534.1l(c).

On appeal, the Georgia Supreme Court is required to

review the sentencing procedure to determine:

(1) Whether the sentence of death was imposed

under the influence of passion, prejudice, or any

other arbitrary factor, and

(2) Whether, in cases other than treason or air-

craft hijacking, the evidence supports the jury's or

judge's finding of a statutory aggravating circumstance

as enumerated in section 27-2534.1(b), and

(3) Whether the sentence of death is excessive or

@isproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

Ga. Code Ann. § 27-2537(c) (1978). Thus, because the Georgia

statute requires specific findings only on aggravating circum-

stances, appellate review of the above-listed issues is limited

to a consideration of the facts of the crime and the aggravating

circumstances found by the jury.

As stated above, the United States Supreme Court has

examined the Georgia procedure for imposition of the death

penalty and found it to be constitutional. Gregg v. Georgia,

A-39

-40-

428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859. Our statutory

scheme is strikingly similar to Georgia's, in that our sentencing

review is limited to a consideration of the circumstances of the

crime and the aggravating circumstances found by the jury. Georgia's

scheme has been fully reviewed by the United States Supreme Court

and has been declared constitutional; our statute is likewise con-

stitutional. It follows, then, that there exists no constitutional

requirement of specific findings on mitigating circumstances and

ees

that failure of the trial court to instruct the jury to make speci-

fic findings was not error.

We recognize that in Florida the jury, acting in a purely

advisory role, must return specific findings as to both aggravating

and mitigating circumstances regardless of what sentence it

recommends and that the trial judge must make specific findings

on both in writing before he determines the sentence. Fla. Stat.

Ann. § 921.141 (Supp. 1980). This requirement, however, is

imposed by the Florida statute and the Florida courts have never

considered whether the deletion of the requirement for mitigating

circumstances would render its procedure uncorstitutional.

The State's contention is that it is unquestioned that

our statutes and constitution require the jury specifically to

indicate its finding on each aggravating circumstance submitted

because such procedure provides an exercise of guided discretion

to the jury. However, the State believes that the import of

our previous decisions is that the jury should remain absolutely

unfettered when it comes to considering mitigating circumstances.

ae = —

—_—— ne

A requirement that the jury indicate its finding on each mitigating

circumstance so submitted to them might, the State contends, un-

duly constrain the defendant. Requiring the jury to submit in

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-4l-

writing which mitigating factors are found, may, the State argues,

inhibit the jury and prevent them from considering “other miti-

gating circumstances." See Collier v. State, 244 Ga. 553, 261

S.E. 24 364. The State's contentions in this respect are not

without some persuasion.

We hold that a proportionality review which considers

both the circumstances of the murder, the aggravating circum-

and the mitigating circumstances submitted

stances found by the jury/with those in other relevant cases

satisfies constititional requirements and adegquetely protects

against arbitrary, capricious, excessive or disproportionate

imposition of the death penalty.

Even were we to accept defendant's argument, we perceive

no prejudice to defendant here. Even assuming that the jury

accepted all sixteen mitigating circumstances submitted as true,>

we still could not conclude that the death sentence was arbitrary,

excessive or disproportionate. The circumstances of this murder

are cruel and gruesome almost beyond belief: a young female,

a stranger to the defendant, was stopped while walking home in a

residential area while it was still daylight. Almost immediately,

defendant began beating her and pulling her arcund by her hair.

He forced her into his car and drove to a deserted field. There,

by his own admission, he beat her and cut her with a knife until

he gained her submission. Then, he raped her and when he was

through, left her to die from her wounds, slowly bleeding to

death. The jury found that the aggravating circumstances out-

weighed the mitigating circumstances beyond a reasonable doubt.

3see note 1 supra.

A-41

-42-

We are unable to disturb the jury's finding and to conclude

otherwise. In summary, we find no statutory provision to support

defendant's contention nor do we find such a constitutional

requirement. Even if any authority could be found to support

Gefendant's claim, his assignment would be of no avail because

he is unable to demonstrate any prejudice whatsoever.

Vv.

In addition to the aggravating circumstance submitted

to the jury as argued in Section IV A. of this opinion, we have

also reviewed the other aggravating circumstances presented to

the jury in view of the penalty imposed. We conclude that the

trial court properly submitted each of these aggravating circum-

stances. See State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510;

State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569; State v. McDowell,

301 N.C. 219, 271 S.E. 2d 286 (1980), cert. denied, __—=s_—s U.S. es

101 S. Ct. 1731, 68 L. Ed. 24 220 (1981).

G.S. 15A-2000(d) directs this Court to review the

record in a capital case to determine whether the record supports

the jury's finding of ary aggravating circumstance, whether the

sentence was imposed under the influence of passion, prejudice

or any other arbitrary factor, and whether the sentence of death

is excessive or disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant. State v.

Martin, 303 N.C. 246, 278 S.E. 2d 214 (1981); State v. McDowell,

301 N.C. 279, 271 S.E. 2d 286; State v. Barfield, 298 N.C. 306,

259 S.E. 24 510. This mandate serves as a check against the

capricious or random imposition of the death penalty. State v.

Hutchins, N.C. , 279 S.E. 24 788 (1981). Our

A-42

-43-

review function in this regard is limited to those instances where

both phases of the trial of the defendant in a capital case have

been found to be free from prejudicial error. State v. Goodman,

298 N.C. at 35, 257 S.E. 2d at 590-91. In exercising our role in

the statutory scheme, we must be sensitive not only to the mandate

of the Legislature, but also to the constitutional dimensions of

our review. See Gregg v. Georgia, 428 U.S. at 204-206, 96 S.

Ct. at 2939-2940, 49 L. Ed. 2d at 892-893; Proffitt v. Florida,

428 U.S. at 258-259, 96 S. Ct. at 2969-2970, 49 L. Ed. 2d at 926-

927.

We consider the responsibility placed upon us by G.S.

15A-2000(d) (2) to be as serious as any responsibility placed

on an appellate court. We have, therefore, carefully reviewed

the record in this case along with the briefs and oral arguments

presented. We conclude that there is sufficient evidence in the

record to support the jury's finding as to the aggravating circum-

stances which were submitted to it. Moreover, as stated above,

we find nothing in the record which indicates that the

sentence of death was imposed under the influence of passion,

prejudice, and any other arbitrary factor.

The record reveals that this defendant committed the

most brutal, vile and vicious crime against Ann Marie Roche.

Defendant beat Ms. Roche viciously with a tire tool, repeatedly

cut her with a knife, ravaged her body in rape, ran over her

battered body with an automobile and left her to bleed to death

in a lonely field. Defendant's sadistic and bloodthirsty crimes

committed against this victim compel the conclusion that the

sentence of death is not disproportionate or excessive, considering

A-43

-44-

both the crime and the defendant. We, therefore, decline to

exercise our discretion to set aside the death sentence imposed.

In all phases of the trial below, we find

No error.

A-44

No. 2 = St..c v Rook Fall Term 1981

Justice Exum concurring in part and dissenting in

part.

I concur in the result reached by the majority on the

guilt phase of this case. Being of the opinion, however, that

it was prejudicial error for the trial court to permit the jury

to return its recommendation for a sentence of death without

specifying which of the mitigating circumstances it found to

exist, I vote to remand the case for a new sentencing hearing.

ghio guectias violates G.S. 15A-2000 and seriously prejudices

the defendant not only at trial but also on appeal when this

Court is required to determine whether his capital sentence

“was imposed under the influence of passion, prejudice, or any

other acbitrary factor,” or whether “the sentence of death is

excessive or disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant.” G.S.

15A-2000 (d) (2).

Properly read G.S. 15A-2000 requires the jury to indi-

cate its findings as to each mitigating circumstance submitted

to it. Although the statute does not expressly and specifically

so reguire, when the eennene is read contextually, it becomes

clear that the legislature, intended that the jury specify both

the aggravating and mitigating circumstances which it finds to

exist in a capital trial. It is our duty to construe G.S.

15A-2000 so that the result comports with the overall design

A-45

-2-

and purpose of the statutory scheme even though the construc-

tion may go somewhat beyond the express language of the statute

itself. See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E. 2d

450 (1981); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979),

cert. denied, 446 U.S. 941 (1980); State v. Johnson, 298 N.C.

47, 257 S.E. 24 597 (1979); State v. Goodman, 298 N.C. 1, 257

S.E. 24 569 (1979). We said in State v. Johnson, supra, 298

N.C. at 56, 257 S.E. 2d at 606, with reference to G.S. 15A-2000:

“We must construe important provisions

of the statute. The first maxim of

statutory construction is to ascertain

the intent of the legislature. To do

this this Court should consider the

statute as a whole, the spirit of the

statute, the evils it was designed to

remedy, and what the statute seeks to

accomplish.” (Emphasis original.)

Section (b) of the statute requires, first, that in all

capital cases:

"(T]he judge shall include in his in-

structions to the jury that it myst

consider any aggravating circumstance

or circumstances or mitigating circum-

stance or circumstances from the lists

provided in subsections (e) and (f) 1s%

which may be supported by the evidence,

and shall furnish to the jury _a written

st o Ssues relating to such aggra-

vating or mitigating circumstance or

circumstances,

"After hearing the evidence, argument

of counsel, and instructions of the court,

the jury shall deliberate and render a

sentence recommendation to the court,

based upon the following matters:

(1) Whether any sufficient aggravating

circumstance or circumstances as

enumerated in subsection (e) exist;

A-46

-3-

(2) Whether any sufficient mitigating

(3)

Section (c)

*(c)

circumstance or circumstances as

enumerated in subsection (f), which

outweigh the aggravating circum-

stance or circumstances found, exist;

and

Based on these considerations,

whether the defendant should be

sentenced to death or to imprison-

ment in the State's prison for life.”

(Emphasis supplied.)

provides:

Findings in Support of Sentence of

Death.—wWhen the jury recommends a sentence

of death, the foreman of the jury shal) si

a

a writing on behalf of the jury which wr

shall sh

(1)

(2)

(3)

The statutory aggravating circum-

stance or circumstances which the

jury finds beyond a reasonable

doubt; and

That the statutory aggravating cir-

cumstance or circumstances found by

the jury are sufficiently substan-

tial to call for the imposition of

the death penalty; and,

That the mitigating circumstance or

circumstances are insufficient to

outweigh the aggravating circum-

stance or circumstances found.”

(Emphasis supplied.)

Section (e) then lists the available aggravating circumstances,

and section (f) suggests a number of mitigating circumstances

which the jury may

consider but to which it is not limited

because of the open-ended language found in section (f) (9).

The statute thus requires that "a written list of issues

relating to” the aggravating and mitigating circumstances be sub-

mitted to the jury.

The jury, before it may recommend a sentence

A-47

-4-

of death, must specify in writing which aggravating circum

stances it finds béyond a reasonable doubt; that these cir-

cumstances are sufficiently substantial to call for the im-

position of the death penalty, and that the mitigating cir-

cumstances are insufficient to outweigh the aggravating cir-

cumstances. Thus, as we noted in State v. Johnson, supra, 298

N.C. 47, 257 S.E. 24 597, the statutory process is, as it must

be, “directed toward the jury's having a full understanding of

both the relevant aggravating and mitigating factors and the

necessity of balancing them against each other in determining

whether to impose the death penalty." Id. at 63, 257 S.E. 24

at 610.

Since the mitigating circumstances are required to be

submitted, like the aggravating circumstances, to the jury in

the form of “written .. . issues" and the jury is required to

find whether “sufficient” aggravating and “sufficient” mitigat-

ing circumstances exist and since the jury is further required

to show in writing which of the aggravating circumstances it

finds, the conclusion is inescapable that the legislature

intended the jury should also be required to show in writing

which of the mitigating circumstances it finds to exist. What

other purpose would there be for submitting the mitigating cir-

cumstances to the jury on a written list? To require both the

mitigating and aggravating circumstances to be submitted in the

form of “written .. . issues” clearly imports a legislative

A-48

-5-

intent that the jury consider and answer them as such. The

very term "Issues" as applied to a trial generally refers to

factual or legal questions which must be answered in order to

resolve the dispute. If the issues are factual they are re-

solved by the trier of fact. "An ‘issue’ is a disputed point

or guestion . .. upon which [parties to an action] are desirous

of obtaining either decision of court on question of law or

of court or jury on question of fact." Black's Law Dictionary

(Sth ed. 1979).

To require the jury to indicate in writing the mitigat-

ing circumstances ‘it finds to exist has been the practice fol-

lowed by our trial judges in every case tried under the new

Geath penalty statute which has been determined by this Court

and in which the jury recommended death except for the instant

case; State v. Taylor, decided this day and in which I also

Gissent in part; and State v. Hamlette, 302 N.C. 490, 276 S.E.

2a 388 (1981).> The cases are: State v. Irwin, No. 26, Fall

Term 1981, presently pending in the Court; State v. Hutchins,

303 N.C. 321, __S.E. 24 _—sss (1981); State v. Martin, 303 N.C.

246, 278 S.E. 24 214 (1981); State v. Silhan, supra, 302 N.C.

223, 275 S E. 24 450; State v. Oliver and Moore, 302 N.C. 28,

274 S.E. 24 183 (1981); State v. Small, 301 N.C. 407, 272 S.E.

2¢ 128 (1980); State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286

lin Hamlette, however, no specific mitigating factors were

proffered. Only the catchall section (f)(9) was used and the

jury answered it “none.”

A-49

(1980), cer:. denied, U.S. » 101 S.Ct. 1731, 68 L. Ed.

2a 220 (1981); State v. Detter, 298 N.C. 604, 260 S.E. 2d 567

(1979); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979);

State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert.

denied, 448 U.S. 907 (1980); State v. Spaulding, 298 N.C. 149,

257 S.E. 2d 391 (1979); State v. Cherry, supra, 298 N.C. 86,

257 S.E. 24 551, cert. denied, 446 U.S. 941; State v. Johnson,

supra, 298 N.C. 47, 257 S.E. 2d 597; State v. Goodman, supra,

298 N.C. 1, 257 S.E. 2d 569; State v. Jones, 296 N.C. 495, 251

S.E. 2¢ 425 (1979). Presumably our trial judges in these cases

were following the statutory requirements as they understood

them to be. This is a strong indicator that the statute should

be interpreted to accord with the practice which has evolved

pursuant to its provisions particularly when such an interpre-

tation is the more reasonable one when the statute is considered

as a whole.

Furthermore this Court has determined that the defend-

ant must prove each mitigating circumstance which he proffers

by the greater weigh: of the evidence and that upon his timely

request he is entitlec’ to a peremptory instruction in his favor

where “all of the evidence in the case, if believed, tends to

show that a particular mitigating circumstance does exist."

State v. Johnson, supra, 298 N.C. at 76, 259 S.E. 2d at 618.

Surely this holding contemplates a statute which requires not

only that a written list of mitigating circumstances be sub-

mitted, but that the jury indicate on the list its findings

as to each such circumstance submitted.

A-50

-7-

Reguiring the jury to specify in writing the aggravat-

ing, but not the mitigating, circumstances which it finds to

exist not only violates G.S. 15A-2000, but it also prejudices

the defendant at the sentencing hearing. It encourages the

jury to think that the mitigating circumstances are less worthy

of consideration than the aggravating circumstances. Under

this practice the jury is not required, as it should be, to focus

its full attention on each submitted mitigating circumstance

individually in order to determine whether it exists. Yet

this kind of determination is necessarily prerequisite to the

jury's determination whether the mitigating circumstances "are

insufficient to outweigh the aggravating circumstances.” The

Ganser in not reguiring the jury to specify its findings regard-

ing the individual mitigating circumstances is that the jury will

not, because it thinks it need not, decide which mitigating cir-

cumstances it believes do in fact exist, but will simply deter-

mine amorphously that whatever the mitigating circumstances may

be, they do not outweigh the aggravating circumstances. This

kind of determination fails to give a defendant the benefit of

a@ particularized consideration of each circumstance which might

militate against putting him to death.

Such a determination probably violates a capital de-

fendant's constitutional right to “individualized consideration”

as that concept was expounded in Lockett v. Ohio, 438 U.S. 586,

604-05 (1978) (Burger, C.J.; plurality opinion):

A-51

“[(T)he Eighth and Fourteenth Amendments

require that the sentencer, in all but

the rarest kind of capital case, not be

precluded from considering as a mitigat-

ing factor, any aspect of a defencant's

character or record and any of the cir-

cumstances of the offense that the de-

fendant proffers as a basis for a sen-

tence less than death. ... The need

for treating each defendant in a capital

case with that degree of respect due the

unigueness of the individual is far more

important than in non-capital cases... .

The nonavailability of corrective or

modifying mechanisms with respect.to an

executed capital sentence underscores the

need for individualized consideration as

a constitutional requirement in imposing

the death sentence.

“There is no perfect procedure for

deciding in which cases governmental

authority should be used to impose

death. But a statute that prevents the

sentencer in all capital cases from giving

independent mitigating weight to aspects

of the defendant's character and record

and to circumstances of the offense prof- .

fered in mitigation creates the risk that

the death penalty will be imposed in spite

of factors which may cal) for a less severe

penalty. When the choice is between life

and death, that risk is unacceptable and

incompatible with the commands of the Eighth

and Fourteenth Amendments." (Emphasis

Original.)

Under our statutory scheme permitting the jury to return a recom-

mendation for death without requiring it to specify which mitisat-

ing circumstances it finds to exist so dilutes the jury's consti-

tutional duty to consider, in the words of Lockett, “any aspect

of a defendant's character or record and any of the circumstances

of the offense that defendant proffers as a basis for a sentence

less than death" and to give them “independent mitigating weight”

A-52

that it skirts dangerously close to violating these consti-

tutional requirements.

The majority relies on Gregg v. Georgia, 428 U.S. 153

(1976) to sustain its interpretation of our statute against

constitutional attack. I believe the reliance is misplaced.

Our statutory scheme for imposing the death penalty and that

of Georgia's are quite different. Our statute not only sug-

gests a list of mitigating circumstances which might be prof-

fered by the defendant but it requires that the list be sub-

mitted to the jury in writing along with a written list of

the aggravating circumstances. The Georgia statute permits

the jury to consider any mitigating factor but none of these

factors are enumerated, specified, or otherwise suggested to

the jury. Ga. Code Ann. § 27-2534.1. Under our statute, as

I have noted, the jury is required to balance carefully various

enumerated mitigating circumstances with various enumerated

aggravating circumstances submitted in the form of written issues

in determining whether to recommend a sentence of death or life

imprisonment. Under Georgia law the jury "is not required to find

any mitigating circumstance in order to make a recommendation of

mercy that is binding on the trial court... but it must find

a statutory aggravating circumstance before recommending a sen-

tence of death.” Gregg v. Georgia, supra, 428 at 197. (Empha-

Sis original.) Indeed, in Georgia, the jury may return a death

sentence upon finding one or more aggravating circumstances, no

* A-53

matter how it regards the mitigating circumstances. In

contrast, under our statute the jury may return a death

sentence recommendation only if it finds: (1) the existence

of one or more aggravating circumstances; (2) that the acgra-

vating circumstance(s) found by it are sufficiently substan-

tial to call for the imposition of the death penalty; and

(3) that the mitigating circumstances are insufficient to

outweigh the aggravating circumstances. The clear import of

our statute is that a jury, upon finding the requisite exis-

tence of aggravating circumstances and their sufficient sub-

Stantiality, may not recommend life imprisonment unless it

further finds that the mitigating circumstances are suffi-

cient to outweigh the aggravating circumstances.

Under our statute the jury's sentence determination

is far more carefully channeled. The entire thrust of our

statute is directed toward insuring that the jury fully under-

stand both the aggravating and mitigating circumstances so that

it may carefully balance them against each other in arriving

at its sentence determination. State v. Johnson, supra, 298

N.C. 47, 257 S.E. 24 597. Thus the existence or non-existence

of mitigating circumstances looms far more crucial to the jury's

ultimate determination under our statute than it does under

Georgia's. For this reason the majority's conclusion that our

Statute does not require the jury to answer specifically the

written issues relating to mitigating factors but only those

2Ga. Code Ann. § 27-2534.1. The judse or jury is required

simply “to consider any mitigating circumstances.” Id.

A-54

relating to aggravating factors may well render the statute

violative of the constitutionally required individualized

consideration in a capital case even though Georgia's proce-

dure was sustained in Gregg. For the jury here is given both

lists of aggravating and mitigating issues, in writing, told

to answer the issues relating to aggravating factors in writing,

and then told to make its life or death decision on the basis

of what is essentially a careful balancing of the aggravating

against the mitigating circumstances. Yet at the same time

the jury is told that it really should not answer in writing

the individual i-sues relating to mitigating circumstar<ces.

This procedure is bound to diminish in the jury's mind the

importance of its determination with regard to each mitigating

factor submitted, a determination which, under our statute, is

crucial to its ultimate decision. It makes it less likely, and

I believe uncoastitutionally so, that the jury will find the

mitigating circumstances sufficient to outweigh the aggravating.

Indeed, it makes it less likely that the ultimate sentence

determination will be based on that kind of individualized

determination that our statute contemplates and the constitution

requires.

Furthermore, not requiring the jury to specify which

mitigating circumstances it finds to exist prejudices the defend-

ant's ability to obtain that review of his sentence required by

G.S. 15A-2000(d) (2), sometimes referred to as our proportionality

review, unless the Court is willing to sustain the sentence upon

A-55

-l2-

the assumption that the jury answered all mitigating circum-

stances” submitted to it in favor of the defendant. The

majority here is apparently willing to sustain this sentence

even after making that assumption. I could not vote to sus~

tain the death sentence if the jury had answered all mitigat-

ing circumstances in defendant's favor. If this had happened,

I, for reasons hereinafter stated, would vote to remand for

the imposition of a sentence of life imprisonment, although

I, like the majority, am repulsed by the gruesome circumstances

of defendant's crimes. Since I cannot on this record know how

the jury answered these issues, I must, for this additional

reason, vote to remand for a new sentencing hearing at which

the jury would be directed to give its answers to these issues.

The statute mandates that we consider whether "the sen-

tence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

@efendant.” G.S. 15A-2000(d)(2). (Emphasis supplied.) Obvious-

ly the statute contemplates that we compare not only the circum-

stances under which the crime was committed but that we also

*rhese circumstances are listed in the majority opinion

at n. .

A-56

-l3-

look to the nature, character, and background of the defendant

committing it. I have already noted the stress which the United

States Supreme Court in Lockett v. Ohio, supra, 438 U.S. 586,

placed on the “need for treating each defendant in a capital

case with that degree of respect due the uniqueness of the

individual" and "the need for individualized consideration as

a constitutional requirement in imposing the death sentence.”

Generally the mitigating circumstances proffered by a defendant

in a capital case will pertain to his individual character,

personal history, mental and emotional stability, and background;

while the aggravating circumstances generally relate to the

circumstances of the crime itself. We cannot, therefore, deter-

mine whether the sentence of death in any particular case is

excessive or disproportionate when compared with similar cases

“considering both the crime and the defendant" unless we know

both the aggravating and the mitigating circumstances found by

the jury to exist. This is particularly true with two of the

mitigating circumstances submitted in this case, i.e., that the

murder was committed while the defendant “was under the influence

of mental or emotional disturbance” and that the capacity o the

Gefendant “to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law was impaired.”

G.S. 15A-2000(f£) (2) and (6).

An examination of capital cases so far determined by

this Court reveal that jury determinations with regard to the

A-5?7

existence of these two mitigating circumstances is perhaps

the most crucial factor in the jury's ultimate recommendation.

In every case in which the jury rejected both of these circum-

stances, the jury has returned a death sentence recommendation.

Detter, Barfield, Martin, Cherry and Irvin. In the five cases

in which the jury considered only one of these mitigating cir-

cumstances and rejected it, the jury recommended death in

three, Jones, Goodman, and Small, and life in two, Crews and

4 On the other hand, of the ten cases in which either

Atkinson.

or both of these mitigating circumstances were submitted and

answered affirmatively by the jury, Turpin, Johnson I, Spaulding,

Poole, Johnson II, Taylor, Ferdinando, Myers, King, and Hutchins,”

the jury returned a recommendation for life imprisonment in all

but four cases, Johnson I, Spaulding, Johnson II and Hutchins.

$11 the listed cases are cited previously except State v.

Atkinson, 298 N.C. 673, 259 S.E. 2d 858 (1979): State v. Crews,

296 N.C. 607, 252 S.E. 2d 745 (1979).

Pall the listed cases are cited previously except State v.

King, 301 N.C. 186, 270 S.E. 2d 98 (1980); State v. Myers, 299

N.C. 671, 263 S.E. 2d 768 (1980); State v. Ferdinando, 298 N.C.

737, 260 S.E. 24 423 (1979); State v. Taylor, 298 N.C. 405, 259

S.E. 24 502 (1979); State v. Poole, 298 N.C. 254, 258 S.E. 2d

iF tale and State v. Turpin, 296 N.C. 607, 252 S.E. 2d 745

( 9).

In State v. Crawford, 301 N.C. 212, 270 S.E. 24 102 (1980),

the two mitigating factors were not submitted, but the jury never-

theless foun” that “the financial and emotional burdens and hard-

ships created by his children" were a mitigating circumstance;

and it recommended life imprisonment.

A-58

Of these four, however, Johnson I and Johnson II were remanded

for a new sentencing hearing because of improper instructions

on the diminished capacity circumstance. At the new sentencing

hearings in both cases, at which presumably appropriate instruc-

tions were given, the juries returned a life imprisonment recom-

mendation. Furthermore Spaulding was remanded for a new trial

for errors committed in the guilt phase. At Spaulding's re-

trial life imprisonment was imposed because the jury was unable

to reach a unanimous verdict. Consequently of the ten cases

in which either or both of these mitigating circumstances was

found in defendant's favor, only one of the defendants, Hutchins,

received a death sentence which was ultimately affirmed by this

Court. In Silhan's first trial, State v. Silhan, supra, 302

N.C. 223, 275 S.E. 2d 450, neither of these mitigating circunm-

stances was submitted to the jury and the jury recommended the

@Geath sentence. On retrial, however, both circumstances were

submitted. The jury rejected the impaired capacity circum-

Stance and found the emotional disturbance circumstance to

exist. The jury recommended life imprisonment. °

This analysis demonstrates that juries in North Carolina

almost never recommend the death penalty aft2r they determine

that at the time of the crime the defendant was either under the

Sstate v. Silhan, No. 79-CRS-1943, 81-17-259 (Columbus Superior

Court). With respect to all the North Carolina capital cases dis-

cussed in this dissent, information not found in the opinions of

this Court may be found in the records on appeal or from the appro-

priate superior court clerks.

A-59

-16-

influence of mental or emotional disturbance or that his capa~

city to appreciate the criminality of his conduct and to conform

his conduct to law was impaired. Likewise this Court should be

slow to affirm a death sentence in which these mitigating cir-

cumstances are present. The law's humanity would seem tc

dictate that rarely if ever should death be the appropriate punish-

ment for a defendant who kills under the influence of a mental

or emotional disturbance and whose capacity to appreciate the

wrongness of his act and to conform his conduct to the require-

ments of law is impaired. Punished he should be. But execution

of a defendant whose crime is the product of a mentally and

emotionally defective personality and who suffers from an

incapacity to control his conduct is excessively vindictive.

It marks society itself with the same kind of unnecessary

barbarity which it claims to be punishing in the defendant.

The death penalty, if we are to have it at all, should be

reserved for first degree murders which are the products of the

meanness of mature, calculating, fully responsible adults.

John Rook, if the jury answered all the mitigating

circumstances in his favor, would not be that kind of defendant.

His evidence presented at the sentencing phase included the

testimony of family members and two psychiatrists. Rook, age

21 at the time of the offense, was the product of an abnormally

deprived, if not depraved, childhood. Both parents were alcoholics.

His father began to give him alcoholic beverages at the early age

of three years because he enjoyed watching him become intoxi-

cated. His father regularly and without provocation required

Rook *o undress and submit to severe beatings. Early in his

life Rook began to use alcohol on a regular basis and later

became a regular user of a multitude of various illegal drugs

such as cocaine, marijuana, and speed. Rook spent much of his

early teenage years in juvenile detention facilities, but his

problems stemmed from his addiction to alcohol and drugs. When

he was not under the influence of these substances he was a

loving and affectionate husband and brother. On the date of

the offense in question Rook was under the influence of both

alcohol and drugs. According to the psychiatrists who testified

he was under the influence of a mental and emotional disturbance

at the time of the crime and was unable to appreciate the crimi-

mality of his conduct or to conform his conduct to the require-

ments of law. He expressed remorse for his actions to both

psychiatrists who examined him and he ultimately cooperated

fully with investigators after acknowledging to them that he

needed help.

This evidence formed the basis for most of the mitigat-

ing circumstances submitted to the jury for its determination.

If we assume that the jury answered these mitigating circum-

stances in defendant's favor, it accepted this evidence as true.

Only three aggravating circumstances were submitted to

the jury. Other than the circumstance that the murder was

A-6)

-18-

especially heinous, the only other aggravating circumstances

were the rape and the kidnapping of the murder victim herself.

But if the jury answered the mitigating circumstances in de-

fendant's favor, these crimes, like the murder, were the

products of defendant's mental and emotional disturbance and

his diminished capacity to appreciate their criminality and to

conform his conduct to the requirements of law. rf defendant's

evidence is believed the whole awful incident is, really, attri-

butable to the tragic personality defects traceable to a de-

praved childhood of a young, immature, mental defective spurred

on by the influence of alcohol and drugs.

Of the capital cases so far determined by this Court,

then, Rook would be the only defendant other than Spaulding

and Hutchins for whom the jury after answering upon proper

instructions the emotional disturbance or diminished capacity

issue in defendant's favor also recommended death. As earlier

noted, on Spaulding's second trial the jury could not agree on

the sentence, and a life sentence was ultimately imposed. Yet

Rook, from the standpoint of his background, is far more deserv-

ing of mercy than Spaulding or Hutchins. Spaulding was a mature

adult who at the time of the murder in question was already

serving a life sentence for two prior murders. Records and

Briefs, Spring Term 197%. No. 10, p. 127. Hutchins was also a

mature adult.’ He was convicted by the jury of murdering one

—

I dissented in Hutchins and voted to give him a new trial on

the merits because of an irreconcilable conflict between him and his

trial counsel, a conflic: which I also believed probably contributed

to the jury's ultimate recommendation of death.

A-62

-19-

after the other three law enforcement officers, all of whom

were attempting to apprehend him. The killings were apparently

the product of Hutchins’ blind rage. Although he contended he

suffered from paranoid psychosis, only one mitigating circum-

stance was answered by the jury in Hutchins’ favor, i.e.-,

that he was under the influence of a “mental or emotional dis~

turbance." The jury rejected Hutchins’ proffered circumstance

that his capacity to appreciate the criminality of his act or

to conform his conduct to law was @iminished. It also con-

cluded that there were no other unspecified mitigating circum-

stances in his case.

If we assume the jury believed Rook's evidence in mitiga-

tion and answered all mitigating circumstances in his favor,

he would be the first defendant finally sentenced to die who

at the time of the murder was under the influence of a mental

and emotional disturbance and whose capacity to appreciate

the criminality of his conduct or to conform his conduct to

law was impaired. Considering this, and considering the many

other mitigating circumstances submitted in his favor, @-¢-»

his age, depraved childhood, subnormal intelligence, alcoholism

and @rug addiction, cooperation with investigators, and the fact

that this awful incident is totally out of character for him when

he is not under the influence of drugs and alcohol, 1 would have

to conclude that the sentence of death recommended by the jury

was disproportionate to the penalty imposed in similar cases

A-63

‘+

-20-

consideriny both the crime and the defendant. My vote would

then be to remand the case for the imposition of a sentence

of life imprisonment. .

Since I cannot know how much of defendant's evidence

in support of his proffered mitigating circumstances the jury

accepted in view of the jury's failure to answer these issues,

I vote to remand the case for a new sentencing hearing at which

these issues would be answered.

A-64

Aner b

No. 2 TENTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

Fall Term 1981

RARER RKKKHRKKE

STATE OF NORTH CAROLINA

ve From Wake

~~

JOHN WILLIAM ROOK

RARER EEAREERERERRRERRRRER

ORDER STAYING EXECUTION OF DEATH SENTENCE

Defendant was indicted for, inter alia, first-degree murder and convicted

at the 6 October 1980 Crimi al Session of Wake County Superior Court. Defen-

dant was sentenced to death in an order entered by Judge Giles R. Clark on

October 27, 1980.

In an opinion filed 3 November 1981, this Court found no error in either

the guilt-determination phase or sentencing phase of defendant's trial. Defen-

dant's death sentence was thus undisturbed. Defendant's attorney filed with

this Court on 16 December 1981 a motion for stay of execution of the death

sentence on the ground that he intends to file a petition for writ of certiorari

in the Supreme Court of the United States pursuant to Rule 22 of that Court.

It is therefore ORDERED:

l. That defendant's execution be and the same is hereby stayed pending

further orders of this Court.

2. That defendant shall remain in the custody of the Department of

Correction pending further orders of this Court.

3. That defendant serve a copy of his petition to the Supreme Court of

the United States and of any subsequent motion or petition in further-

ance of these proceedings upon the Attorney General of North Carolina

and the Clerk of this Court.

4. That a certified copy of this ordef be served on the Warden of Central

Prison in Raleigh, North Carolina.

This the 17th day of December 1981.

OSEPH BRANCH, CHIEF JUSTICE

SUPREME COURT OF NORTH CAROLINA

The foregoing order is issued over my hand and the seal of the Supreme

Court this 17th day of December 1981.

”

PnNeawWhK &

Supreme Court of the United States

No. A-591

JOHN WILLIAM ROOK,

Petitioner

NORTH CAROLINA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIDERATION of the application of counsel for petitioner(, x,

It Is OnpDERED that the time for filing a petition for writ of certiorari in the

above-entitled cause be, and the same is hereby, extended to and including

—..... A eee ©

/s/ Warren E. Burger

Chief Justice of the United States.

A-66

a Le hh ed Le

North Carolina General Statute 15A-2000. Sentence of death or life imprisonmnt

for capital felonies; further proceedings to determine sentence. -- (a) Separate

Proceedings on Issue of Penalty. --

(1) Upon conviction or adjudication of quilt of a defendant of a capital

felony, the court shall conduct a scparate sentencing proceading to

determine whether the defendant should be sentencal to death or life

imprisorment. A capital felony is one which my be punishable by

death.

(2} The proceeding shall be conducted by the trial judse before the trial

jury as soon as practicable after the guilty verdict is returned. If

prior to the time that the trial jury bogins its deliberatios on the

issue of penalty, any juror dies, bocames incapacitated or disqualified,

or is discharged for any reason, an altermate juror shall becam: part

of the jury and serve in all respects as those selcctod on the regular

trial panel. An alternate juror shall become a part of the jury in the

order in which he was selected. If the trial jury is unable to

reconvene for a hearing on the issue of penalty after having determincd

the guilt of the accused, the trial judge shall impancl a new jury to

Getermine the issue of the punishment. If the defendant pleads guilty,

the sentencing proceeding shall be conducted before a jury impancled for

that purpose. A jury selected for the purpose of determining punishment

in a capital case shall be sclected in the same manner as juries are

selected for the trial of capital cases.

(3) In the proceeding there shall not be any requiremcnt to resubmit evidenc.

presented during the guilt determination phase of the case, unless a

new jury is impaneled, but all such evidence is competent for the jury's

consideration in passing cn punishnont. Evidence may be presented as to

any matters relating to any matter that the court dcams relevant. to

sentence, and may include matters relating to any of the aggravating o:

mitigating circumstances enumerated in subsections (e) and (f). An,

evidence which the court deams to have probative value may be received.

(4) The State and the defendant or his counsel shall Le permitted to present

argument for or against sentence of death. The defendant or

Cefendant's counsel shall have the right to the last argynut.

(b) Sentence Recommendation by the Jury. -- Instructions dctemmined by the trial

judge to be warranted by the evidence shwll be given by the court in its charge to

the jury prior to its deliberation in dctermining sentence. In all cases in which

the death penalty may be authorized, the judge shall include in his instructions t

the jury that it must consicer any aggravatin,; circumstance or circumstances or

mitigating circumstance or circmstances from the lists providud in subsections \&

ama (£) which may be supported by the evidence, and shall fumush to the jury a

written list of iss.es relating to such aggravating or mitigating circumstance or

circumstances.

After hearing the evidence, argument of counsel, and instructions of the court,

the jury shall deliberate and render a sentence rccommendation to the court, basad

upon the following matters:

(1) Whether any sufficient aggravating circumstance or circumstances as

enumerated in subsection (e) exist; ’

(2) Whether any sufficient mitigating circumstance or circumstances as

enumerated in subsection (f), which outweigh the aggravating circ.stanc:

or circumstances found, exist; and

(3) Based on these considerations, whether the defendant should be sentenced

to death or to imprisonment in the State's prison for life.

The sentence recommendation must be agreod upon by a unanimous vote of the 12

jurors. Upon delivery of the sentence recommendation by the foranan of the jury,

the.jury shall be individually polled to establish whether cach juror concurs ax}

agrees to the sentence recommendation returned.

If the jury cannot within a reasonable time, unanimously agree to its sentenc

recommendation, the judge shall impose a sentence of life imprisonment; provided,

however, that the judge shall in no instance impose the death penalty when the jur,

cannot agree unanimously to its sentence rccanunndation.

A-67

FNPEM EE

Supreme Court of the United States

No. A-591

JOHN WILLIAM ROOK,

Petitioner

NORTH CAROLINA

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon ConsIDERATION of the application of counsel for petitioner(%7,

Ir Is OnpEReED that the time for filing a petition for writ of certiorari in the

above-entitled cause be, and the same is hereby, extende to and including

___February 1, 19.82.

/s/ Warren E. Burger

Chief Justice of the United States.

EE

dey ot. Docent , 19.8).

A-66

North Carolina General Statute 15A-2000. Sentence of death or life imprisona:nt

for capital felonies; further proceedings to determine Sentence. == (a) Separate

Proceedings on Issue of Penalty. --

Getermine whether the defendant should be sentencal to death or life

imprisorment. A capital felony is one which may be punishable by

th

(2) The proceeding shall be conducted by the trial judse before the trial

jury aS soon as practicable after the guilty verdict is returned. If

to the time that the trial jury begins its deliberations on the

issue of penalty, any juror dies, becames incapacitated or disqualified,

discharged for any reason, an altemmte juror shall becanm part

ial

order in which he was selected. If the trial jury is unable to

for a ing on the issue of penalty after having determina

the guilt of the accused, the trial judge shall inpancl a new jury to

the issue of the punishment. I¢ the defendant pleads guilty,

the sentencing proceeding shall be Conducted before a jury impaneled for

that purpose. A jury selectod for the purpose of determining punishment

in a capital case shall be selected in the same manner as juries are

selected for the trial of Capital cases.

E

(3) In the proceeding there shall not be any requirement to resubnit evidenc.

presented during the guilt determination phase of the case, unless a

new jury is impaneled, but all such evidence is competent for the jury's

consideration in Passing cn punishnent. Bvidence may be presented as to

(4) The State and the defendant or his tounsel shall Le permitted to present

argument for or against sentence of death. The defendant or

defendant's counsel sill have the faght to the last argymont.

(b) Sentence Recommendation by the Jury. <= Instructions determined by the trial

judge to be warranted by the evidence Shall be given by the court in its Charge to

the jury prior to its deliberation in Getermining sentence. In all cases in which

the death penalty may be authorized, the judge shall include in his instructions t

the jury that it must considor any aggravatiny circumstance or circumstances or

mitigating ciramstance or Circumstances fran the lists provided in subsections («i .

ana (£) which may be Supported by the evidence, and shall fumish to the jury a

written list of issues relating to such aggravating or mitigating cirewmstance cr

Cciroumstances.

After hearing the evidence, argument Of counsel, and instructions of the court,

the jury shall deliberate and rendor a Sentence recommendation to the court, basad

upon the following matters:

(1) Whether any sufficient aggravating Circumstance or circumstances as

enumerated in subsection (e) exist; ,

(2) Whether any sufficient mitigating ciramstance or Circumstances as

enumerated in subsection (£), which Cutweigh thx aggravating circunstanc

or circumstances found, exist; and

(3) Based on these Considerations, whether the @efendant should be sentenced

to death or to imprisonment in the State's prison for life.

If the jury cannot within a reasonable tume, unanimously agree to its sentenc:

recommendation, the judge shall impose a sentence of life imprisonment; provided,

however, that the judge shall in no instance impose the death penalty when the jun

wannet agree unanimously to its sentence recannuxiation.

A-67

(c) Findings in Support of Sentence of Death. -- When the jw'y recommends ..

sentence of death, the foraman of the jury sill sign a writing on behalf of

the jury which writing shall sixw:

(1) The statutory aggravating circumstance or circumsluices which the jury

finds beyond a reasonable doubt; and

(2) That the statutory aggravating circumstance or circumstances foun! by

the jury are sufficiently substantial to call for the imposition |»!

the death penalty; and,

(3) That the mitigating circumstance or circumstances are insufficiwst :6

Outweigh the aggravating circumstance or circunst.uces found.

(@) Review of Judgment and Sentence. --

(e)

(1) The judgment of conviction ami sentence of death sill be Subject tu

automatic review by the Suprome Court of North Cxrolina pursuit 'o

procedures established by the Rules of Appellate irocedure. In .:..

review, the Supreme Court siwll consider the punisisont umposa:

well as any errors assigned on appeal.

(2) The sentence of death shall be overturned and a sentonce of life

imprisonment imposed in licu theroof by the Suprum: Court upon u

finding that the record dovs not suport the jury's findings of any

aggravating circumstance Or Circumstances upon which the sentenc::

Court based its sentance of death, or upon a finding that the

Sentence of death was inposad umler the influence of passion,

prejudice, or any other arbitrary factor, or upon a finding that un:

sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the defendant.

The Supreme Court may suspend consideration of deuu) penalty cases unti:

such time as the court determines it iS prepared to make the comparisons

required under the provisions of this section.

(3) I£ the sentence of death and the jukguont of the trial court aro roversas:

On appeal for error in the posit-verdict sentenciny procecding, Un»:

Supreme Court shall order tht a new sentencing lasirang bar Conmlacteat on

conformity with the procudures of this Article.

Aggravating Circumstances. <= Agyravatuin; Circumstance: which ery Lar vithones

Shall be limited to the following:

(1) The capital felony was committed by u jarson lawtully ancarcerat.

(2) The defendant had been previously convicted of ancuast capital :

(3) The defendant had been previously convicted of a toicay involvi..:

use or threat of violunce to tie person.

(4) The capital felony was canmitted for the purpose o: avoiding or ps vont

a lawful arrest or effecting an escape from custady.

(5) The capital felony was camittcd while the defendant was engagai, or was

an a@ider or abettor, i. che commussion of, or an attumpt to commit, or

flight after cammitting or attcnptiny to commit, any robbery, raj«:,

arson, burglary, kidnapping, or aircraft piracy or che unlawful ci owin;

placing, or discharging of a destructive device or ucnb.

(6) The capital felony was camuittod for pecuniary gain.

(7) The capital felony was cammitted to disrupt or hinder the lawful ovorcis

of any governmental function or the enforcament of laws.

(8) The capital felony was camutted against a law-enforcanont officu,

employee of the Deparummnt of Correction, jailer, firoman, judge «»:

justice, former judge or justice, prosecutor or former prosecutor,

juror or former juror, or witness or former witness against the de!cndain ,

while engaged in the performance of his official duties or bocaus: of

the exercise of his official duty.

(9) The capital felony was especially heinous, atrocious, or crucl.

A-68

Bt-Gid S RECEIVED

IN THE FEB 1 1982

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

OCTOBER TERM, 1981 SUPREME COURT, US. _ |

JOHN WILLIAM ROOK,

Petitioner, |

v. |

STATE OF NORTH CAROLINA, |

Respondent. |

|

|

}

ce ——

MOTION TO PROCEED IN FORMA PAUPERIS _

| The Petitioner, John William Rook, by his undersigned counsel, ask leave

| to file the attached Petition for Writ of Certiorari to the Supreme Court of |

|

, North Carolina without prepayment of cost and to proceed in forma pauperis

“pursuant to Rule 46. Counsel has not yet received an affidavit from the Pe-

| ettonee. who is presently incarcerated at Central Prison in Raleigh, North

Carolina. Mr. Rook's affidavit in support of this Motion will be forwarded to

the court immediately upon receipt.

A

. Franklin Jackson —~—S

) DUFFERMYRE AND JACKSON, P. A.

P. 0. Box 1029

| Dunn, North Carolina 28334

I Phone: (919) 892-2145

|

g

Su e 612, BB&T Building |

Post Office Box 68

Raleigh, North Carolina 27602

Phone: (919) 828-4486

{

:

|

— ——

—

IN THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1981

| JOHN WILLIAM ROOK,

! Petitioner,

li V.

STATE OF NORTH CAROLINA,

Respondent.

J. FRANKLIN JACKSON, being duly sworn, states: |

1. I am attorney for John William Rook, the Petitioner in the above

captioned action, and make this affidavit in support of Mr. Rook's Motion for

| leave to proceed in forma pauperis. My representation of Mr. Rook is without |

remuneration.

i 2. Mr. Rook is presently in the custody of the State of North Carolina |

and is not immediately available to sign an in forma pauperis affidavit. Such

an affidavit has been sent to Mr. Rook by me and will be forwarded to the Court

' immediately upon receipt. A copy of the affidavit to be signed by Mr. Rook is

| attached hereto.

3. Counsel was appointed to represent Mr. Rook at his trial and on

' appeal.

4. 1 am informed and believe that because of his poverty, Mr. Rook is

unable to pay the costs of this cause or to give security for same.

|

|

| 5. 1 believe that Mr. Rook is entitled to redress in this action.

|

|

STATE OF NORTH CAROLINA

j County OF SAMPSON

The foregoing affidavit of J. Franklin Jackson, was subscribed and swers

to before me this 27th day of January, 1982.

i s 73 f ) Q

t Yr jt OD.

\

i My Comm. expires: 3/17/85

'

i

|

SUPREME COUT OF THE UNITED STATES

IN THE

OCTOBER TERM, 1981 ,

JOHN WILLIAM ROOK,

Petitioner, i

Vv.

STATE OF NORTH CAROLINA,

Respondent.

— — a

mt aei i ©

i

| 1, JOHN WILLIAM ROOK, being duly sworn, depose and say, in support of

| my Motion for leave to proceed without being required to prepay costs or fees,

and to proceed in forma pauperis:

\!

i} 1. I am the Petitioner in the above captioned action.

H 2. Because of my poverty I am unable to pay the costs of said cause;

1

|| 1 own no real or personal property; I am incarcerated and receive no income from

| earnings.

I 3. I am unable to give security for said costs.

|

4. Counsel is serving on my behalf without remuneration. At trial

|

i and on appeal, lawyers were appointed to represent me because I was indi gent.

5. I believe that I am entitled to redress.

| 6. The nature of said cause is briefly stated as follows:

ll I was convicted in the Superior Court of Wake County, at tria) court of

ithe State of North Carolina, of murder, kidnapping and rape, and was sentenced |

, to death. I am being held at the Central Prison in Raleigh, North Carolina. 1.

| believe errors were committed during the course of my trial in violation of my

constitutional rights and that my conviction and death sentence were imposed

upon me in violation of my constitutional right.

WORT) CAROLINA John William Rook

WAKE COUNTY

| The foregoing affidavit of John William Rook, was svhscribed and sworn

to before me this day of » 1982.

NLP.

Vee |

VI- Gig

RECEIVED

a FEB 22 1992

SUPREME COURT OF THE UNITED STATES

OFFICE GF THE CLERK

OCTOBER TERM, 1981 {|__“PAEME CouRT, us. |

Petitioner,

|

| JOHN WILLIAM ROOK,

|

|

|

!

V.

STATE OF NORTH CAROLINA,

i

Respondent.

j

|

i} ey ee ee Oe, ee eee eae?

MOTION

1, JOHN WILLIAM ROOK, being duly sworn, depose and say, in support of

my Motion for leave to proceed without being required to prepay costs or fees

and to-proceed in forma pauperis:

i

|

i 1. I am the Petitioner in the above captioned action.

if

2. Because of my poverty I am unable to pay the costs of said cause;

|

\! own no real or personal property; I am incarcerated and receive no income from

earings.

i! 3. I am unable to give security for said costs.

4. Counsel is serving on my behalf without remuneration. At trial

“and on appeal, lawyers were appointed to represent me because I was indigent.

| 5. I believe that I am entitled to redress.

6. The nature of said cause is briefly stated as follows:

! I was convicted in the Superior Court of Wake County, at trial court of

lene State of North Carolina, of murder, kidnapping and rape, and was sentenced

to death. I am being held at the Central Prison in Raleigh, North Carolina. 1

| believe errors were committed during the course of my trial in violation of ry

| constitutional rights and that my conviction and death sentence were imposed

tea me in violation of my constitutional right.

“ 4 ie /\

seetttllrnny, hn fmt

WORTH CAROLINA wR. 7)" S i WiTTiam Rook

WAKE COUNTY Sree,

| The For€gning affidavit of John William Rook, was subscribed and sworn

Gf +n

| to before | t Spg) f day » 1982.

‘4 L ' Fi

7 =

= >

: Ae ~ - >

% tot, a " JD 2

~~ ‘ ey ye = “4 NLP,

“ny, R * Fa

‘.

i ww

sovenee® ‘

My Comm. expires;. a SS AS Ee