Appendix — DAVID J. BROWN v. NORTH CAROLINA (No. 82-5542)
Supreme Court brief1982
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NO, 82 -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
DAVID J, BROWN
Petitioner
-y-
STATE OF NORTH CAROLINA
Respondent
SL NS ED
APPLICATION FOR EXTENSION OF TIME IN
WHICH TO FILE FOR WRIT OF CERTIORARI
Se eS
To the Honorable Warren E. Burger, Cheif Justice of the
United States and Circuit Justice for the Fourth Circuit:
The petitioner, David J. Brown, prays that an order be
entered extending the time for filing a Petition for Writ of
Certiorari in the Supreme Court of the United States in this
case by thirty (30) days to and including October 31, 1982,
or in the alternative October 11, 1982. Petitioner believes
that this application is not being filed less than ten (10)
days prior to the date that the petition is due; however,
petitioner has recently learned that a question has recently
been raised regarding the interpretation of North Carolina'a
Rules of Appellate Procedure pertaining to the date a judgment
is entered for purposes of filing a Petition for Writ of
Certiorari in the Supreme Court of the United States. The
confusion has not yet been resolved by either the Supreme
Court of the United States or the Supreme Court of North
Carolinu, and petitioner may, therefore, be one day late in
filii.; this Application.
The pertinent dates are;
July 13, 1982: The Supreme Court of North Carolina
filed an opinion affirming petitioner's
convictions and death sentences for two murders.
State v. Brown, aches A er Nepitacclie Fe RD
; (1982).
August 2, 1982: Judgment was rendered by the Supreme
Court of North Carolina pursuant to Rule 32(b)
of the North Carolina Rules of Appellate Procedure.
iat C
September 11, 1982: Expiration of time for filing
Petition for Writ of Certiorari in this Court,
unless extended, if this Court interprets Rule
20.4 of the United States Supreme Court Rules and
the North Carolina Rules of Appellate Procedure
to require that the time for filing the Writ
begins on the date the North Carolina Supreme
Court opinion is filed rather than on the date
it is mandated,
October 1, 1982: Expiration of time for filing Petition
for Writ of Certiorari in this Court, unless
extended, based on the petitioner's interpretation
of Rule 20.4 of the United States Supreme Court
Rules and the North Carolina Rules of Appellate
Procedure.
October 11, 1982: Expiration of a requested thirty
(30) day extension of time for filing a petition
in this Court, if this Court determines that the
sixty (60) days within which to tile the Petition
for Writ of Certiorari begins to run from the date
the opinion was filed by the North Carolina Supreme
Court.
October 31, 1982: Expiration of a requested thirty (30)
day extension of time for filing a petition in
this Court, if the sixty (60) days within which
to file Petition for Writ of Certiorari begins to
run from the date juCgment was mandated by the
North Carolina Supreme Court.
This motion for extension of time is being filed at
this date because of the apparent confusion over the date
when the Petition for Writ of Certiorari is due in this
Court. Counsel for petitioner had calculated the date that
the Petition for Writ of Certicrari is due as October l,
1982, sixty (60) days from the date judgment was entered by
the North Carolina Supreme Court. After conferring with
counsel for Michael Edward Pinch, who recently requested an
extension of time from this Court in order to file a Petition
for Writ of Certiorari, petitioner's counsel has learned
that there is now a question regarding when the sixty (60)
days begins to run. This application is, therefore, now
being made despite petitioner's belief that October 1, 1982,
is the correct date marking the expiration of time for
filing the Petition for Writ of Certiorari in this Court and
that September 21, 1982, is the final date for filing this
Application. If petitioner's interpretation of the rules is
found to be incorrect, the Petition for Writ of Certiorari,
unless time is extended, will be due September 11, 1982, and
this Application was due September 1, 1982.
«3-
e c
If this Court determines that counsel for petitioner has
interpretated the rules incorrectly, petitioner prays that this
Court grant his application for an extension of time because
of the seriousness of this case and because of the extraordinary
circumstances created by the recent confusion concerning proper
interpretation of North Carolina'a Rules of Appellate Procedure.
As grounds for the thirty (30) day extension, petitioner
shows the following:
1. Petitioner was found guilty after a jury trial in
the Superior Court of Rockingham County, North Carolina, of
two counts of first degree murder and was sentenced to death
on each count.
2. Petitioner duly appealed his convictions and sentences
to the Supreme Court of North Carolina, assigning as error,
inter alia, several federal constitutional claims. The
Supreme Court of North Carolina affirmed the convictions and
the sentences, holding that petitioner was denied his constitutional
right to due process in the guilt phase of his trial but the error
was harmless beyond a reasonable doubt. As to the issues raised in
the sentencing phase of petitioner's trial, Justice Exum
dissented, expressing the view that petitioner was entitled
to a new sentencing hearing.
3. Petitioner intends to seek review in this Court
under 28 U.S.C. Section 1257(3) of his federal constitutional
claims which he presented to and which were rejected on the
merits by the North Carolina Supreme Court. At least one of
the issues, the constitutionality of the North Carolina Supreme
Court's construction of the death penalty statute, is also being
presented to this Court in Michael Edward Pinch v. State of North
Carolina (No, 82- » Tiled August 31, 1982).
4. The extension of time is sought for the following
reasons:
a. Petitioner is an indigent, death sentenced inmate
who was represented at trial by the undersigned
court appointed counsel,
b. Petitioner's counsel has a very active and
heavy work load consisting of numerous other previously
scheduled criminal and civil trials, and although
counsel has proceeded diligently on petitioner's
behalf, more time is needed to adequately prepare
a Petition for Writ of Certiorari.
WHEREFORE, petitioner respectfully requests an order
extending the time for filing a Petition for Writ of Certiorari
to and including October 31, 1982, or in the alternative,
October 11, 1982.
This 2 day of September, 1982.
ae t-te ee ae
wer? tC) ed
Respectfully submitted,
VAN CAMP, GILL & CRUMPLER, P. A.
Attorneys for Petitioner
Raleigh, North Carolina 27602
Phone: (919) 821-5393
NO. 82 baad
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
DAVID J. BROWN
Petitioner
-v-
STATE OF NORTH CAROLINA
Respondent
~~ ee ee
CERTIFICATE OF SERVICE
I hereby certify that I served the annexed Application
for Extention of Time in which to File for Writ of Certiorari
on respondent by placing copies in the United States mail,
first class mail, postage prepaid, addressed as follows:
Mr. Isaac T. Avery, III
Special Deputy Attorney General of the
State of North Carolina
Justice Building
Post Office Box 629
Raleigh, North Carolina 27602
All parties required to be served have been served,
This a day of September, 1982.
VAN CAMP, GILL & CRUMPLER, P. A.
Attorneys for Petitioner
P. 0. Box 106
Raleigh, North Carolina 27602
Phone: (919) 821-5393
NO. 82 -
IN TH
SUPREME COURT OF THE UNITED STATES
October Term 1982
DAVID J. BROWN,
Petitioner
Vv. AFFIDAVIT OF SERVICE
STATE OF NORTH CAROLINA,
Respondent
STATE OF NORTH CAROLINA)
)
COUNTY OF WAKE 8S.
Sally Hamilton Scherer, being sworn, states;
1. I am an attorney licensed to practice law in the
State of North Carolina. I am employed by Van Camp, Gill &
Crumpler, P. A. and am an associate of James R. Van Camp,
attorney for petitioner David J. Brown.
2. On September 2, 1982, at approximately 1:00 p.m,
E.S.T., I personally placed the original and two copies of
the enclosed Application for Extension of Time in an envelope
properly addressed to the Clerk of this Court, with express
mail service postage prepaid, and deposited the envelope in
a mailbox under the exclusive care and custody of the United
States Postal Service within the City of Raleigh, State of
North Carolina,
ok | "y S\ ’
etl < bla Urey ma (ee
ally Hamilton Scherer
Sworn to before me this
2nd day of September, 1982,
44a) _- 4,
My commission expires: 9/24 <a
€ r
RECEIVED
OCT 13 1982
Orrin ur tt CLERK
82 5542 SUPREME *>107" us.
er,
NO, 82 =
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
DAVID J. BROWN,
Petitioner
Vv.
STATE OF NORTH CAROLINA
Respondent
MOTION TO PROCEED IN FORMA PAUPERIS
The petitioner, David J. Brown, by his undersigned counsel asks leave to
file the attached Petition for Writ of Certiorari to the Supreme Court of
North Carolina without prepayment of costs and to proceed in forma pauperis
pursuant to Rule 46. Mr. Brown's Affidavit in support of this Motion is
attached,
This With day of Ockoec __. 1982.
VAN CAMP, GILL & CRUMPLER, P. A.
Attorneys for ye.
Ay Lhe Ge
By 4 My » A. A ]
/ James R. Van Camp /
osp Office Box 106
Raleigh, North Carolina 27602-0106
(919) 821-5393
No, 82 rad
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
| DAVID J. BROWN, )
| Petitioner ;
| v. AFFIDAVIT
STATE OF NORTH CAROLINA )
; Respondent ;
I, David J. Brown, being duly sworn, depose and say in support of my
Motion for leave to proceed in forma pauperis:
1. I am the petitioner in the above-captioned action,
2. Because of my poverty, I am unable to pay the costs of this cause; I
| own no real or personal property; I am incarcerated and receive no income from
J earnings.
| 3. 1 am unable to give security for this cause.
4. James R. Van Camp was appointed to represent me at trial and on
appeal because I am indigent. He is representing me in this petition to the
United States Supreme Court.
5. I believe that I am entitled to redress,
6. The nature of this cause is briefly stated as follows:
| I was convicted in the Superior Court of Union County, a trial court
bes the State of North Carolina, of the murder of two individuals and was
] sentenced to death on both counts, I am being held at the North Carolina
} Central Prison in Raleigh, North Carolina, I believe that 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 rights,
David J. oon
NORTH CAROLINA
WAKE COUNTY
The foregoing Affidavit of David J, Brown was subscribed and sworn to
before me this 4 ta day of October, 1982. .
Bhar Ophhe
Notary Public
| My Commission Expires: /20/ Yo !
ce Aang C
IN THE SUPREME COURT oF worTH caroLInA 82 5542
STATE OF NORTH CAROLINA ) o- =
2s
v ) No. 30A81 - Union oon as | tt
) Se bai _—s
DAVID J. BROWN ) ek [™
e>r £ ra
gm we FTI
Before Rousseau, Judge, at the 8 December 198 Srintna lk
a] oy
ad ~N
Session of Superior Court, Union County.
Defendant was charged in indictments, proper in form,
with the murders of Christina S. Chalflinch and Shelly Diane
Chalflinch. Due to pretrial publicity, the trial court ordered the
trial moved from Moore County, where the crimes occurred, to Union
County. The jury found defendant guilty of the two counts of
first degree murder and recommended that defendant be sentenced
to death for both convictions. Based on the jury's recommendation,
the trial court imposed a death sentence for each conviction.
Defendant appeals to this Court as a matter of right.
Attorney General Rufus L. Edmisten, by Special Deputy
Attorney General Issac T. Avery III, for the State.
James R. Van Camp and Douglas R. Gill, for the defendant.
CARLTON, Justice.
Defendant brings forth several assignments of error in
the guilt determination 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 entire
record before us, we find no prejudicial error in any of these
proceedings and affirm his convictions and the sentences imposed.
Appendix A, p 1
I.
At trial, evidence for the State tended to show that
Shelly Diane Chalflinch, aged twenty-six, and her daughter,
Christina S$. Chalflinch, aged nine, resided in apartment 9 of
the Marriage Quarters behind the Pinehurst Hotel in Pinehurst,
North Carolina. They visited with Ms. Chalflinch's father, G. W.
Frye, in Aberdeen on Sunday, 24 August 1980. Mr. Frye never saw
his daughter or granddaughter alive after that evening.
On the morning of Tuesday, 26 August 1980, the bodies of
Ms. Chalflinch and her daughter were found in a mutilated condition
in the Chalflinch apartment. Police officers who entered the
apartment saw blood on the floors and walls of the apartment.
Pieces of flesh were scattered throughout the living area of the
apartment. Small pieces of furniture had been overturned and
several chairs were broken. It was hot in the apartment and the
bodies had already bequn to decompose. Ms. Chalflinch's body had
been mutilated beyond recognition, and several feet of her
intestines protruded from a large wound to her abdomen. Christina's
body also bore multiple stab wounds and a brown electrical cord
had been wrapped around her neck.
A bloody knife blade, broken at both ends, with the
inscription "R. H. Forschne,” was found in the apartment.
Following the initial investigation, the apartment was
secured and remained padlocked until the time of trial. Sergeant
Don Davis of the Pinehurst Police Department was placed in charge
of the investigation and kept the only key to the apartment.
The bodies of the Chalflinches were taken to Chapel
Hill on 26 August 1980 where autopsies were performed. An autopsy
Appendix A, p 2
Ns & C
~3@
performed on the body of Ms. Chalflinch revealed approximately 100
stab and cut wounds all over her body. At least 20 of these wounds
were to the facial area, 12 were in the neck area, and 16 stab
wounds on the right arm appeared to be defensive in aiikinoe: In
addition to the numerous wounds to the chest and shoulder area, a
large gaping cut extended down the left leg from buttock to ankle
and a V-shaped penetrating stab wound in the vaginal and rectal
area created a virtual hole in the body. The medical examiner
found a ring under the edge of the liver in the abdominal cavity.
The pathologist who performed the autopsy testified, "I could
place my own hand and arm through the wound in her genital area
up to the area where the ring was." The ring was silver in color
and had a large rectangular surface with a heraldic pattern with
two animals on each side and two shields and a crown on top. In
the pathologist's opinion, Ms. Chalflinch died as a result of
"a combination of stab and incised wounds to all parts of her
body, that some wounds might possibly have been inflicted after
death and that, given the condition of the body and the tempera-
ture of the Chalflinch apartment, death could have occurred on
Monday night, 25 August."
An autopsy performed on the body of Christina Chalflinch
revealed multiple stab wounds, slashes, puncture marks and
extensive mutilation of the genital area with a portion of the
tissue removed. The head had a large number of stab wounds, one
of which extended through the brain from right to left. The
electrical cord which had been wrapped around the neck left a
faint bluish mark. Four wounds in the chest area penetrated into
the tissues of the chest and abdomen. Seven of the multiple
Appendix A, p 3
oe Ne i C
o* 8
stab wounds in the abdominal region penetrated internal organs.
In the pathologist's opinion, Christina Chalflinch died as a result
of multiple stab wounds to the head, chest and abdomen. a
On 28 August 1980 SBI Agent Wade Anders obtained
permission from the defendant to search his home, apartment 4 at
the Marriage Quarters complex. Defendant was asked to sign a form
indicating his consent to a search of his apartment. He signed
the form after it was read to him and after he talked with a
friend. The form was signed at 5:21 p.m. on 28 August 1980. The
apartment was searched that same evening, while defendant was present.
Items seized during the search included the tool box in which
defendant kept his kitchen equipment for his job as a cook at the
Pinehurst Hotel. In the box were knives bearing the inscription
"R. H. Forschner” on the blades.
A forensic serologist with the SBI examined the apart-
ment of Ms. Chalflinch and the area outside it on 28 August 1980.
He observed blood all over the apartment. Additionally, he per-
formed luminol and phenolphthalein tests to determine the presence
of blood undetectable to the human eye. Through use of these tests,
blood was discovered in the corner of the kitchen in the shape of
partial
two / footprints of the balls and toes of the feet, side by
side. Patterns of blood were discovered outside the front door of
Ms. Chalflinch's apartment and also on the deck outside the front
door, on the fourth and tenth steps leading down from her apart-
ment, and on the concrete pad at the foot of the steps. Blood
was also observed between the concrete pad and the first stepping
stone, and this bloodstain was in a _ shape resembling a bare
foot. At the door to defendant's apartment, visible bloodstains
Appendix A, p 4
C)
. »? ides
were found on the concrete stoop. The luminol test indicated the
presence of blood on the doorknob. The tool box taken from defendant's
apartment had a small spot on the lid which tests revealed to be
blood and the blade of one of the R. H. Forschner knives tested
positive with phenolphthalein. A bloodstain was also found on a
pillow at the head of defendant's bed. Blood was found in other
areas throughout the apartment and bare footprints of blood were
found all over the floor in the kitchen. On that evening, defendant
had a cast on his left hand.
An SBI agent who qualified as an expert in the field of
fingerprint and palm print identification testified that a latent
palm print on the wall of the bedroom of Ms. Chalflinch's apart-
ment was the same as that of the left palm print of the defendant.
Several friends of defendant's testified that the ring
‘found in Ms. Chalflinch's body was the ring normally worn by
defendant.
Other evidence for the State tended to show that defendant
attended a party on Sunday evening, 24 August 1980, where he
played the role of disc jockey. He drank alcoholic beverages
throughout the evening and took at least five "Black Beauties."
During the party defendant was wearing his ring. At approximately
11:30 p.m., defendant and a group left the party and went to a
nightclub known as the Crash Landing. Members of the Southern
Pines Police Department on patrol observed the defendant walking
on the highway near the Crash Landing at approximately 2:10 a.m.
on Monday, 25 August 1980. He was staggering, carrying his shoes
and was barefooted. The officers gave him a ride to the kitchen
entrance of the Pinehurst Hotel. They left him there at approxi-
Appendix A, p 5
mately 2:45 a.m.
A co-worker of defendant testified that she saw the
ring in question on the Saturday before 25 August 1980. - On the
following Monday at approximately 7:00 a.m., she saw the defendant
at work and he had two bandaids on his left hand in the thumb
area. She did not observe the ring at that time. Defendant was
in pain and told her that he had cut his hand.
Evidence for the defendant tended to show that the night
shift supervisor at the Pinehurst Hotel saw the defendant in the
hotel's front office between 2:30 and 3:00 a.m. on 25 August 1980.
He left the front of the hotel at approximately 3:00 a.m.
A co-worker and friend of defendant's testified that
defendant had been in apartment 9 of the Marriage Quarters before
25 August 1980. Two residents of apartments in the Marriage
Quarters testified that they had been at home on the night of 24
August 1980 and had not heard anything unusual. One of these
residents saw Ms. Chalflinch at approximately 11:00 p.m. on 24
August 1980. They talked and she stated that she had to do some
laundry. He saw her through his apartment window again around
12:30 or 1:00 a.m. on 25 August 1980, heading toward the laundry.
Becky Mills, a nurse at Moore Memorial Hospital,
testified that she first saw the defendant at approximately 11:00
p.m. on 25 August 1980. He was in the emergency room recovering
from surgery resulting from cut tendons on his left hand and had
a cast on his left arm. He left the hospital at approximately
4:10 a.m. on 26 August 1980.
Gaston Yarborough and Raymond Pate, employees of the
hotel, testified that they passed by the Marriage Quarters on
Appendix A, p 6
eo ©) bik
‘ a -7-
their way home from work on Monday, 25 August. © They left work
at approximately 11:00 p.m. They heard a lady hollering from
the direction of the Marriage Quarters and a banging noise.
Yarborough drove by the Marriage Quarters and saw that lights
were on only in the end apartment on the corner. Pate testi-
fied that he did not see Ms. Chalflinch's car in the parking lot
when he went to work at approximately 2:30 p.m. on 25 August
1980. At 11:00 p.m., as he was walking to his truck to leave
work, he heard noises from the direction of the Marriage Quarters.
He heard a young girl's voice say, “leave her alone, leave her
alone.” He then drove by the Quarters. He saw lights on only in
the apartment in the right-hand corner. He looked up toward the
lighted apartment and saw a white male with sandy blonde hair
jump from the balcony. Pate told the polices about this on 27
August 1980. He saw the person again on the following weekend
and followed him into the hotel but lost him. He reported this
to the police the same day, but they never inquired about it
further until the Sunday prior to trial. On cross-examination,
Pate testified that the person jumped off the balcony outside of
apartment 12 and that he saw no one near apartments 9 and 10.
Upon receiving the jury verdict finding the defendant
guilty of both murders, the court convened the sentence
determination phase of the trial before the same jury. The State
essentially relied on the testimony presented at the guilt phase
but also offered the testimony of Roy Junior Brown. Brown testi-
fied that he was in Moore County jail as a prisoner at the time
defendant was placed in the jail. Brown asked defendant what he
was charged with and defendant said that he was charged with a
Appendix A, p 7
‘gi ©) ee
* ’ ; ’ -8-
double homicide. Brown testified:
He said he murdered two people. He called one
of their names Shelley (sic). He told me he
killed them with a knife. He said he couldn't.
understand why they didn't give him his ring
back, that they gave him his watch back, and it
got broke off his arm, the band broke off, and
I asked him where his ring was or something,
I don't recall exactly what I asked him, but
anyhow he said the ring turned up in one of
the bodies.
Defendant presented several witnesses in his behalf.
Several co-workers testified that they had known him for some
time and had never seen or heard him threaten anyone with any
act of violence and that he got along well with other people.
Other testimony indicated that he had never been seen with a
weapon; that he was an honest and dependable worker; that he
was a quiet person and did not use profanity. Some of defendant's
relatives testified essentially that they had never known defendant
to be violent and that he was always friendly and self-controlled.
At the conclusion of the testimony, the trial court
instructed the jury on the sentencing phase. Two aggravating
circumstances were submitted to the jury: (1) whether the murder
was especially heinous, atrocious or cruel, and (2) whether
the murder was part of a course of conduct in which the defendant
engaged and whether that course of conduct included the commission
by the defendant of other crimes of violence against another
person. Six mitigating circumstances were submitted to the jury:
(1) whether the defendant had no significant history of prior
criminal activity, (2) whether the capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to requirement of law was impaired, (3) whether, although
the act itself may have been horrible, the defendant had not shown
Appendix A, p 8
Re ee ee hs (
himself to be otherwise evil, (4) whether the defendant had no
previous conviction of offenses involving injury to another
person, (5) whether prior acts of defendant's behavior were
inconsistent with the act of which he was convicted, (6) whether
any other circumstance or circumstances arising from the
evidence had mitigating value. The jury found both aggravating
circumstances and all six mitigating circumstances. The jury also
answered affirmatively the issues of whether, beyond a reasonable
doubt, the aggravating circumstances found were sufficiently sub-
stantial to call for the imposition of the death penalty and of
whether, beyond a reasonable doubt, the aggravating circumstances
outweighed the mitigating circumstances. The following instruction
appeared on the sheet handed the jurors immediately following the
issue last mentioned: “If you answer issue 4 'No,' indicate life
imprisonment under ‘recommendation as to punishment.’ If you
answer issue 4 ‘Yes,' indicate death under ‘recommendation as to
punishment.'" Thereupon, the jury recommended that defendant be
sentenced to death. Identical issues were submitted in both
murder cases and the answers and recommendations were the same.
The trial court then entered judgment imposing the death
penalty for each of the crimes committed. From these judgments,
the defendant appealed of right to this Court.
Il.
GUILT-INNOCENCE PHASE
Defendant presents numerous contentions about the guilt-
innocence portion of his trial. We discuss each of these below.
Appendix A, p 9
In pre-trial discovery motions and motions made during
the trial and immediately after judgment was entered, defendant
sought a trial court order allowing him to inspect the premises
known as apartment 9 of the Marriage Quarters, the scene of the
crimes. The trial court denied defendant's motion in each instance.
The apartment had been cordoned off and had been under the control
of the Pinehurst Police Department from the time the victims’
bodies were found until the time of the trial. Defendant claims
that he was entitled to inspect the crime scene under G.S. 15A-
963 (a) ag wanes of his constitutional right to due process of law.
Defendant contends before this Court that an inspection
of the crime scene was critical to his defense. He argues that
the only way the State could prove that he committed the murders
was to show that they occurred between 3:00 a.m. and 7:00 a.m.
on 25 August 1980 and that he needed the opportunity to inspect
the crime scene in order to discover whether there was any evidence
which tended to show that the victims were alive after this period.
An inspection of the crime scene, therefore, was critical to the ,
preparation of his defense.
We first turn to defendant's contention that he was
entitled to view the crime scene under G.S. 15A-903(d). That
statute provides in pertinent part:
(ad) Documents and Tangible Objects. -~ Upon
motion of the defendant, the court must order the
solicitor to permit the defendant to inspect and |
copy or photograph books, papers, documents,
photographs, motion pictures, mechanical or
electronic recordings, tangible objects, or
copies or portions thereof whic are within
the possession, custody, or control of the
State and which are material to the preparation
of his defense, are intended for use by the
Appendix A, p 10
‘ 7 -ll-
State as evidence at the trial, or were
obtained from or belonged to the defendant.
(Emphasis added.)
Defendant contends that “tangible objects" include such
objects as an apartment. We do not agree. "Tangible objects,”
as used in this statute, refers only to tangible, movable objects,
and not to buildings or rooms. ;
Rule 16 of the Federal Rules of Criminal Procedure, the
federal counterpart of our G.S. 15A-903, specifically confers the
right to “discover buildings or places." Our statute, on the
other hand, does not include “buildings or rlaces* in the list of
things which may be discovered. This omission is, we think,
significant. Had our Legislature intended for “buildings or
places" to be included in the statute, it would have said so in
the same words utilized in the federal statute. Thus, defendant
is not entitled, under the terms of G.S. 15A-903(d), to inspect
the crime scene.
Appendix A, p ll
; @ C
i SO -12-
Defendant's contention that denial of his motions to
view the crime scene amounted to a denial of due process of law
is persuasive. We start with the proposition established by the
Suprene Court of the United States that there is no general
constitutional right tc discovery in a criminal ease, ‘Weatherford
v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977).
As that Court has stated, "the Due Process clause has little to
say regarding the amount of discovery which the parties must be
afforded ... ." Wardius v. Oregon, 412 U.S. 470, 474, 93 S.
Ct. 2208, 2212, 37 L. Ed. 2d 82, 87 (1973). We must, therefore,
consider defendant's claim under the facts of this particular
case. Here, the record discloses that the apartment occupied by
the victims was secured and cordoned off by the Pinehurst Police
Department from the time the bodies were discovered on 26 August
1980 through the time of defendant's trial. The defendant sought
on several occasions to obtain access to the apartment in order
to search for exculpatory evidence. The record does not disclose
that the defendant would have been unwilling for his attorneys
to be accompanied by police personnel so that no harm would be
done to the crime scene. The defendant cogently presented the
theory of his defense to the trial court. The State relied heavily
on information gained from the crime scene for its case against
the defendant. On these facts, we think it a denial of fundamental
fairness and due process for defendant to be denied, under police
prosecutorial supervision, a limited inspection of the premises
of the crime scene. We emphasize, however, that our holding is
limited to the particular facts of this casé and our holding is in
no way to be construed to mean that police or prosecution have any
Appendix A, p 12
i Nah i, ye (
obligation to preserve a crime scene for the benefit of a
defendant's inspection. The crime scene here was preserved by
the police for the several months from the time the bodies were
found until the trial was conducted and rudimentary fairness would
have allowed defendant to inspect these premises under these
circumstances.
Our inquiry does not end here, however. Error committed
at trial infringing upon a defendant's constitutional rights is
presumed to be prejudicial and entitles him to a new trial unless
the error committed was harmless heyond a reasonable doubt. G.S.
15A-1443(b); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 24 705 (1967); see Moore v. Illinois, 434 U.S. 220, 98
8S. Ct. 458, 54 L. Ed. 2d 424 (1977); Milton v. Wainwright, 407 U.:.
371, 92 S. Ct. 2174, 33 L. Ed. 24 1 (1972); Schneble v. Florida,
405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 24 340 (1972). Overwhelming
evidence of guilt may render constitutional error harmless.
Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed.
2d 284 (1969).
As stated in Chapman, “before a federal constitutional
error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt." 386 U.S.
at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11. Here, we declare
our belief that the trial court's error in denying defendan‘
to the crime scene was harmless beyond a reasonable doubt
of other overwhelming evidence of defendant's guilt.
Our reading of the record here leaves no doubt that
the trial court's error was harmless. This is so because evidence
of this defendant's guilt was overwhelming. A ring identified as
Appendix A, p 13
nN ¥ would
ne ae eS wer. mes
Tet ste “14-
one previously worn by defendant was found in the body of Ms.
Chalflinch. A bloody palm print lifted from the bedroom wall of
the apartment was unquestionalby identified as being that of the
defendant. A bloody and broken knife blade similar to ones owned
by defendant and used by him in his work was found at the crime
scene. In addition to the blood at the crime scene, blood was
located at the entrance of defendant's apartment and throughout
the apartment. Defendant confessed to his cellmate, after being
arrested, that he had murdered two people, one named Shelly,
with a knife and that his ring had turned up in one of the bodies.
In summary, we hold that the trial court erred under
the facts of this case in failing to allow defense counsel to view
the crime scene but that the trial court's error was harmless
beyond a reasonable doubt. See United States v. Valenzuela-
Bernal, U.S. ’ S. Ct. ’ L. Ed. 2d (No.
81-450, decided July 2, 1982).
Appendix A, p 14
/
Following the testimony of Mike Pagan, Marlene Ethal
McIntosh, Ann Quick and Debra McLaughlin, witnesses who testified
that the ring found in Ms. Chalflinch's body belonged to defendant, ©
defense counsel requested copies of the statements which each
witness had given to the police. At that point, the court noted
that it had reviewed in camera the statements of the four witnesses
and, based on its review, entered findings that the statements were
not inconsistent with the witnesses’ testimony, that the statements
contained no evidence which exonerated the defendant, and that
defense counsel was not entitled to copies of the statements given
to the District Attorney's office prior to trial. Copies of the
statements were made and were placed in a sealed envelope. Following
the trial court's entry of this order, defense counsel asked that
the court seal not only the four statements specifically requested,
"but any statements written whether in longhand or otherwise.”
The trial court denied this motion.
By this assignment defendant requests that we review
the sealed statements of the four witnesses to determine iZ the
trial court ruled properly. He then contends, however, that he
has a constitutional right to inspect the statements himself
and that the procedures enunciated by this Court in State v.
Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977), are inadequate in
capital cases. Finally, defendant contends that the trial court
erred in failing to inspect and seal any other written statements.
In Hardy this Court established the rules for our trial
courts to follow in instances where a specific request is made
at trial for disclosure of evidence in the State's possession
Appendix A, p 15
C
that is obviously relevant, competent and not privileged. As
. ° ‘ J -16-
Justice Copeland stated, "justice requires the judge to order an
in camera inspection when a specific request is made at trial for
disclosure of evidence in the State's possession that is obviously
relevant, competent and not privileged. The relevancy for impeach-
ment purposes of a prior statement of a material State's witness
is obvious.” Id. at 127-28, 235 S.E. 2d at 842. The North
Carolina discovery procedures, unlike the federal statute, do
not automatically entitle the defendant to such statements at
trial.
Instead, . . . since realistically a
defendant cannot know if a statement of a material
State's witness covering the matters testified to
at trial would be material and favorable to his
defense, Brady and Agurs require the judge to, at
a minimum, Seer an 6 camera inspection and
make appropriate findings of fact. As an additional
measure, if the judge, after the in camera examination,
rules against the defendant on his motion, the judge
should order the sealed statement placed in the record
for appellate review.
Id. at 128, 235 S.E. 2d at 842.
Here, the trial court clearly complied with the mandates
of Hardy with respect to the statements of the four named witnesses.
Having found as a fact that the statements were not inconsistent
with their testimony at trial and that they contained no evidence
exculpatory to the defendant, the trial court declined to order
them provided to the defense counsel and correctly ordered them
placed in a sealed envelope. In accordance with the review pro-
cedure set out by Hardy, we have opened the sealed envelopes,
read the statements in question and concur in every respect with
the trial court's findings and order.
Nor are we persuaded that the procedure adopted in Hardy
Appendix A, p 16
algagtes ae ‘9
ey hates -17-
should be modified. Defendant has presented no new reasons for
our doing so, and we continue to believe that the Hardy procedure
fully assures a defendant that no material and exculpatory pre-
trial stateme t will be suppressed. Ordering the statements
placed in sealed envelopes provides for effective appellate review.
See State v. McLean, 294 N.C. 623, 242 S.E. 2d 814 (1978); State
v. Tate, 294 N.C. 189, 239 S.E. 2d 821 (1978).
Finally, we reject defendant's contention that the trial
court failed to comply with Hardy with respect to “any statements
written whether in longhand or otherwise." This request by
defense counsel was obviously a shotgun tactic. Our review of the
record discloses no evidence of any other statements which were
available for the court to inspect and seal. Defendant apparently
would have this Court assume that some other statements were avail-
able and that the trial court knew of them. This we are unwilling
to do. We have no reason to suspect that any other statements
were available and find no indication from the record that any
witness was asked by defense counsel if he or she had previously
given a statement in writing to police personnel.
These assignments of error are overruled.
c.
Defendant next contends that the trial court erred in
denying his several motions concerning discovery of information
in the State's possession indicating that a witness had seen a
white male jumping from the balcony of a Marriage Quarters apart-
ment on the evening of 25 August 1980, which information had not
previously been provided defendant. We find no merit to defendant's
contention.
Appendix A, p 17°
vay hee ea ae ba YY
After learning that law enforcement officers had been
told by a witness, Raymond Pate, that he had observed a white
male jump from a balcony of a Marriage Quarters apartment on
Monday evening, the trial court conducted a lengthy voir dire.
The voir dire revealed that officers had discounted this testi-
mony because Pate had indicated to them, upon viewing the
apartment complex that he had actually seen the man jump from
the balcony of an adjacent apartment. Moreover, this information
had not been disclosed to the District Attorney. It had been
independently discovered by counsel for defendant approximately
one week prior to trial. During the course of this voir dire,
defendant moved for a dismissal, a mistrial, and a continuance.
All three motions were denied by the trial court.
At the conclusion of the voir dire, the trial court
found the facts as noted above and concluded that the District
Attorney had not intentionally tried to hide any information
contrary to the pre-discovery order entered in the cause and further
found that the defense attorney had had substantially the same
information as the District Attorney. We find the trial court's
findings of fact fully supported by the evidence adduced at the
voir dire and that those findings properly support the con-
clusions of law.
G.S. 15A-910 gives the trial court ample authority to
provide relief when either the State or defendant fails to comply
with the discovery provisions of Chapter 15A. However,
the exclusion of evidence for the reason that
the party offering it has failed to comply with
the discovery statutes granting the right of
discovery, or with an order issued pursuant
thereto, rests in the discretion of the trial
court. .. . The exercise of that discretion,
Appendix A, p 18
C
aaa -19-
absent abuse, is not reviewable on appeal.
State v. Hill, 294 N.C. 320, 331, 240 S.E. 2d 794, 801-02 (1978)
(citations omitted). ;
We find no abuse of discretion here. The record reveals
that the District Attorney weejonmiee of this information until
trial. The record further reveals that defense counsel became
aware of the information a week before trial and had, in fact,
talked with the witness. Most importantly, the witness testified
before the jury and the jury heard a full account of what he
observed on that evening. On these facts, there is no abuse of
discretion. See State v. Allison, 298 N.C. 135, 257 S.E. 2d 417
(1979); State v. McCoy, 302 N.C. 1, 277 S.E. 2d 515 (1981).
In a related argument, defendant contends that the trial
court erred in refusing to permit him to inquire into the knowledge
of a State's witness concerning another witness who allegedly had
seen the decedents alive after 12:30 a.m. or 1:00 a.m, on 25
August 1980. On cross-examination of Sergeant Davis, a Pinehurst
police officer, defendant asked, “Did you determine that one or
more persons may have seen Diane Chalflinch after 1:00 a.m. on
Monday morning?" The witness answered affirmatively. Defendant
then sought to obtain the names of the witnesses and the State's
objections were sustained. Defendant then attempted to have the
questions answered for the record and the trial court refused.
The trial court's explanation was that, “You have asked me to
look and I looked in camera at a statement a witness gave where
you contended that somebody saw Diane Chalflinch alive after
midnight, and I have ruled that you were not entitled to that
information at this time.” Defendant contends that (1) he was
Appendix A, p 19
-20-
entitled to have the witness answer the question, and (2) at the
very least, the question should have been answered for the record.
While we agree with defendant that the trial court should
have allowed the witness to answer for the record, that alone does
not warrant a new trial. The record discloses that regardless of
defense counsel's inability to get his questions answered, the
witness who claimed to have seen Ms. Chalflinch alive at 12:30
Or 1:00 a.m. on 25 August isedAtes aveliabie ap aks defense and
testified for the defense. Because defendant got this testimony
before the jury he was in no way prejudiced by the trial court's
earlier rulings and is not entitled to a new trial on this
ground,
In this instance, we are bound by the trial court's
ruling that the information was not exculpatory. We have not been
provided a copy of the statement provided the trial court for in
camera inspection and on which the trial court based its previous
ruling. Moreover, the basis for the court's ruling in this instance
was that it had previously found the information in the statement
not to be exculpatory to the defendant. There is no indication
that defendant requested that this statement be sealed or other-
wise preserved for our review as provided by Hardy.
These assignments of error are overruled.
D.
Defendant next attacks the admission into evidence of
numerous items taken during a warrantless search of his apart-
ment. The State sought to justify the search on the basis of
consent. He argues that the search of his apartment was not based
on lawful consent because (1) the evidence did not support a
Appendix A, p 20
is C | 4
. ‘ . . -21-
-_~
finding of consent, (2) a search warrant had supplanted the effect
ef any consent; and (3) evidence relevant to a determination of
lack of consent had been improperly excluded. We discuss these |
arguments seriatim.
Defendant essentially contends that the totality of the
circumstances surrounding his “consent” impels the conclusion that
it was not voluntarily given. He notes that he had been questioned
by the SBI the day before the consent was given and that he had
been followed by SBI agents for several miles prior to being
stopped and questioned. He also notes that he was kept under
surveillance by police personnel who later went with him to the
security office of his employer, where he was kept for another
two and one-half hours in the presence of several officers.
Such circumstances, defendant argues, are tantamount to an arrest
and the “psychological atmosphere” in which his consent was
obtained should preclude allowance into evidence of those items
seized during the search.
When the validity of a consent to search is challenged,
the trial court must conduct a voir dire hearing to isbernine
whether the consent was in fact given voluntarily and without
compulsion. State v. Cobb, 295 N.C. 1, 243 S.E. 2d 759 (1978).
"(T)he question whether a consent to a search was in fact ‘voluntary'
or was the product of duress or coercion, expressed or implied, is
a question of fact to be determined from the totality of all the
circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93
S. Ct. 2041,/36 LEA. 2d 854, 862-63 (1973); accord, State v.
Jolly, 297 N.C. 121, 254 S.E. 24 1 (1979); State v. Vestal, 278
N.C. 561, 180 S.E. 24 755 (1971).
Appendix A, p 21
? ) -22-
Here, the trial court conducted an extensive voir dire
and heard the testimony concerning the events leading up to the
signing of the consent form. The court found that the two SBI
agents had talked with defendant and others about the alleged
murders of the Chalflinches and informed defendant that they
wanted to search his apartment; that they read defendant a printed
form entitled “Consent to Search " which fully advised him that
the search was for ene other material of evidence of any crime
which they may desire,” and that the officers did not have any
authority to make such search without his consent; that the
defendant signed the consent form in the presence of two police
officers and a friend of defendant's with whom he hid consulted;
that defendant stated that he understood the form and understood
his rights; that defendant was not under the influence of any
alcohol or drugs; that no force or coercion was used against him
or any promises made to him. From these findings of fact the
trial court concluded that the defendant voluntarily, willingly
and understandingly consented to the search of his premises and
that any items seized as a result of the search were admissible
at his trial.
We find that the trial court's findings of fact are
amply supported by the evidence adduced at the voir dire hearing
and that these findings fully support the trial court's conclusions
of law. Taking into account all of the factors enunciated in
Schneckloth, we hold that defendant's consent to the search was
voluntarily given free from coercion in any form.
Defendant next contends that, even assuming he had
given consent, such consent was superseded and negated by the
Appendix A, p 22
‘ ; c (
ee -23- \
issuance of a search warrant which was read to him prior to the
search of his apartment. We disagree.
Defendant cites no authority for the proposition that
obtaining a search warrant negates prior consent to the search.
It is clear from the record before us that the State relied on
a consensual search and, as discussed above, the trial court
properly ruled that defendant's consent. was freely and voluntarily
given. We cannot agree with defendant's reasoning that obtaining
the warrant negates the consent originally given. Assuming the
State had a valid search warrant, it had two bases to justify
the search of defendant's apartment. At trial, the State had
every right to rely on either. See State v. Ratliff, 281 N.C.
397, 189 S.E. 24 179 (1972).
Nor do we find, as defendant contends, any evidence
to conclude that defendant withdrew his consent as a result of
the issuance of the search warrant. Indeed, the evidence is that,
until the time of his arrest some one and one-half hours later,
defendant was cooperative with the search and was allowed to go
in and out of his apartment unrestrained. We hold that issuance
and service of the search warrant in no way negated the consent
originally given by defendant for the search of his premises and
that the items seized during the search were adinissible at trial.
Finally, defendant contends the trial court improperly
refused to permit testimony on several matters relating to the
circumstances leading to his giving consent to the search of his
apartment. We have previously discussed the trial court's treat~
ment of the defendant's challenge to the consensual search and
find it unnecessary to do so again. Most of the matters which
Appendix A, p 23
SS ee -24-
defendant now contends he was not allowed to pursue, such as the
number of persons present at the time of the search, were otherwise
before the trial court. The trial court had before it adequate
information concerning the totality of circumstances leading to
the defendant's consent for the search. We reject defendant's
contention here that the, trial court abused its discretion by
refusing, in effect, to relitigate the issue of consent.
These assignments of error are overruled.
E.
Defendant next challenges the admission of certain items
of evidence: photographs of the victims taken at times prior to
the murders, items seized during the search of defendant's apart-
ment on which there were traces of blood, jewelry found in defen-
dant's apartment and knives owned by defendant similar to the one
found at the crime scene.
We have reviewed the photographs and testimony concerning
the other items of evidence and find that they were properly
admitted into evidence. We note only that the inability of the
forensic serologist to state that the traces of blood found on
items seized from defendant's apartment came from either of the
victims goes to the weight or credibility of his testimony and
not its admissibility. See State v. Arnold, 284 N.C. 41, 199 S.E.
24 423 (1973).
P.
Defendant next assigns error to certain portions of the
jury charge. Specifically, he contends that the trial judge
erred (1) by expressing an opinion that defendant committed the
Appendix A, p 24
etitaliy ut -25-
killings, (2) by mischaracterizing tne theory of the defense, (3)
by incorrectly stating the evidence, (4) in more forcefully
stating the law favorable to the State, and (5) by implying that
the jury could find as a fact something that was not contained in
the record. We have examined the portions of the charge to which
defendant assigns error and find that the jury was properly
instructed. These assignments of error are without merit and
are hereby overruled.
G.
Counsel for defendant has been helpful to this Court
in arranging his brief so that the remaining contentions con-
cerning the guilt phase of defendant's trial are summarily
presented. Counsel acknowledges ENG oo 6g FRE have been
previously addressed and candidly concedes that he would have to
“overcome substantial precedent” in order to prevail. Without
unduly burdening this Court with extended argument, defendant
requests that we review these issues and reconsider our prior
holdings. We address them below.
(1) Defendant first contends that in a capital case,
an individual woir dire of the jurors should be allowed in order
for defendant to receive a fair trial. He argues that it is
inherently impossible for other members of the jury pool not
to be affected by the types of questions asked potential jurors
in a capital case. Defendant cites no new authority for his
position and, indeed, this Court has previously rejected this
argument. E.g., State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183
(1981); State v. Taylor, 298 N.C. 405, 259 S.E. 2d 502 (1979);
State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979); State
Appendix A, p 25
-26<
v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied,
448 U.S. 907 (1980). On the point here presented, we reiterate
our holdings in these cases, This assignment of error is over-
ruled.
(2) Defendant next contends that he was denied due
process and the effective assistance of counsel when the trial
court refused to order that bench conferences be recorded. Defen-
dant cites no authority for his position and our research dis-.
closes none. Defendant's bareassertion that the ability of
counsel to raise points and record their disposition during
trial was “so chilled” that he was denied the effective assistance
of counsel and due process is simply unpersuasive. This assignment
‘of error is overruled.
(3) Defendant next contends that he was unconstitutionally
tried by a “death qualified” jury. He contends that a “death
qualified” jury is more likely to convict than a jury which is
not “death qualified." This Court has previously rejected the
argument here presented and is not inclined to disturb those
holdings. See, e.g., State v. Oliver, 302 N.C. 28, 274 S.E. 2d
183; State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510;
State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied,
446 U.S. 941 (1980).
(4) Defendant next contends that the trial court
improperly limited the number of additional peremptory challenges
which he requested. He argues that one charged with two capital
offenses should be given additional peremptory challenges. This
Court rejected a similar argument in State v. Johnson, 298 N.C.
355, 259 S.E. 24 752. This assignment of error is overruled.
Appendix A, p 26
“igh nee i eC
, -27-
(S) Defendant next contends that his arraignment was
illegal because the proceedings were remanded for findings of
fact by the district court concerning the reasons for the con-
tinuance of his probable cause hearing. He argues that the
result was to eliminate his hearing because of an imminent
indictment.
This assignment of error is without merit. The failure
to conduct a formal arraignment itself is not reversible error.
State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980). The purpose
of an arraignment is to allow a defendant to enter a plea and have
the charges read or summarized to him and the failure to do so
is not prejudicial error unless defendant objects and states that
he is not properly informed of the charges. State v. Small, 301
N.C. 407, 272 S.E. 24 128 (1980). Moreover, there is no con-
stitutional requirement for a preliminary or probable cause
hearing. State v. Hudson, 295 N.C. 427, 245 S.E. 2d 686 (1978).
A probable cause hearing is unnecessary after the grand jury
returns an indictment. State v. Lester, 294 N.C. 220, 240 S.E.
2d 391 (1978). As this Court discussed in Hudson, a probable
cause hearing is notdesigned to afford a means of discovery to
defendant. Its function is to determine whether there is
probable cause to believe the crime has been committed and that
defendant committed it. This assignment of error is overruled.
(6) Defendant next oniiiniie that the only source for
a conclusion by the jury that premeditation and deliberation existed
was the evidence concerning the nature and number of the victims'
wounds. As we understand it, defendant is contending that his
conviction of first degree murder should not stand because the
Appendix A, p 27
ia
Sipe nea -28-
essential ingredients of premeditation and deliberation were
based upon a presumption.
This argument is clearly without merit. Evidence of
the premeditation and deliberation required to sustain this
defendant's conviction was supplied by circumstantial evidence,
not by any presumption. The nature and number of the victims’
wounds, as defendant notes, is one circumstance from which an
inference of premeditation and deliberation could be drawn.
There are, however, many others appearing of record. The trial
court correctly submitted the issues of premeditation and
deliberation to the jury.
(7) Defendant next contends that the trial court erred
by failing to submit its charge to the jury in writing as
requested by defendant. Defendant cites no authority in support
of his position and no persuasive reasoning has been advanced.
We note that the jury requested no clarification of the trial
court's instructions and that it returned a verdict in just over
one hour. Nothing in the record indicates that the jury was in
any way confused or unable to understand or remember the trial
court's instructions. This assignment of error is overruled.
(8) Defendant next contends that the trial court
impermissibly expressed its opinion by refusing to grant the
Gefendant's request that he be referred to by his name and not
as the defendant.” This is particularly true, defendant contends,
when the victims are referred to by name. This Court is unable
to imagine the slightest prejudice resulting to defendant from
the historical practice in our trial courts of referring to the
defendant as “the defendant” This assignment of error is overruled.
Appendix A, p 28
eet te | -29-
(9) Defendant next contends that the trial court
improperly failed to charge the jury on the issue of his good
character. We disagree. Defendant did not introduce character
evidence. The testimony offered in his behalf did not indicate
his general reputation among a group of people but consisted only
of several witnesses’ personal opinion of the defendant. As this
Court stated, in rejecting a similar contention, in State v.
Williams, 299 N.C. 652, 662, 263 S.E. 2d 774, 781 (1980), “Such
evidence is not competent character evidence and the trial judge's
failure to instruct the jury on this evidence is accordingly not
error."
(10) Defendant next contends that the trial court
improperly denied his request for the appointment of a polygraph
examiner. Defendant argued that he had no independent recollection
of the events occurring between 4:00 a.m. and 7:00 a.m. on 25
August 1980, and that polysraph results could be used to show
his state of mind. This Court has recently written at length
concerning the appropriate legal principles for appointment of
assistance of an expert and find it unnecessary to repeat that
extensive discussion here. See State v. Partin, 303 N.C. 55,
277 S.E. 24 410 (1981). Suffice it to say that the decision of
whether to appoint an expert is a matter within the discretion
of the trial judge and will not be disturbed absent an abuse of
that discretion. Here we can perceive no abuse. See State v.
Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980); State v.
McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied,
450 U.S. 1025 (1981); State v. Johnson, 298 N.C. 355, 259 S.E.
2d 752.
(11) Defendant next contends that he was entitled to
Appendix A, p 29
en ee -30-
receive, upon request, criminal records of the State's witnesses.
G.S. 15A-903 nowhere provides for discovery of the criminal
records of the State's witnesses. Indeed, a provision authorizing
the discovery of such material was included in the draft of the
original bill and was subsequently deleted. G.S. § 15A-903,
Official Commentary (1978); accord, State v. Smith, 291 N.C.
50S, 523-24, 231 S.E. 2d 663, 675 (1977). This assignment of error
is overruled. :
Itt.
SENTENCING PHASE
Defendant next assigns several errors relating to the
sentencing proceedings. We discuss these contentions seriatim.
A.
Defendant first contends that the trial court improperly
submitted the aggravating circumstance that the murders were
"especially heinous, atrocious, and cruel,” G.S. § 15A-2000(e) (9)
(1978). In support of this argument, defendant argues that (1)
the only evidence on which this finding could have been based was
also an essential element of the State's proof of first degree
murder and (2) the only evidence suggesting unnecessary cruelty
to the victim was the multiplicity of wounds which were not
established beyond a reasonable doubt as having occurred before
the death of the victim,
Defendant's first contention is based on this Court's
holdings in State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979)
and State v. Cherry, 298 N.C. 86, 257 S.E. 24 551. In those
cases we held that the underlying felony in a first degree murder
conviction based upon the felony-murder doctrine could not be
Appendix A, p 30
eee . ; -3l-
submitted as an aggravating circumstance. Recognizing the doctrine
of merger, we held that the underlying felony merged with the
murder convictions and therefore use of the same felony .to enhance
the punishment violated the double jeopardy provisions of the
federal constitution. We did not hold that the jury was prohibited
from considering the evidence justifying the conviction of the
underlying felony but held only that the underlying felony itself
could not be used as an aggravating circumstance.
Here, of course, defendant was not tried under the felony-
murder rule. He was tried and convicted of these first degree
murders on the basis of premeditation and deliberation. No under-
lying felony was involved. This Court nas rejected similar
arguments in State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183, and
State v. Hutchins, 303 N.C. 321, 279 S.E. 2d 788 (1981). In
Oliver, we interpreted Cherry and Goodman to apply only to the
underlying felony itself and not to the facts surrounding the
commission of the felony. In Hutchins, we rejected the argument
that the facts underlying the State's theory of the case merged
with the offense and could not be used to enhance the penalty.
We also disagree with defendant that this aggravating
circumstance should not have been submitted because the multiplicity
of wounds wasthe only fact to support a jury finding necessary to
establish the murder as one especially heinous, atrocious and
cruel because the evidence does not support the conclusion
beyond a reasonable doubt that the wounds inflicted were adminis-
tered before the death of the victims. Here, defendant is relying
on the testimony of the pathologists who stated that they could
not be certain that all of the victims’ wounds were inflicted
Appendix A, p 31
RENO Wy) -32-
prior to death. Defendant's contention is that.an especially
heinous, atrocious and cruel murder must be one inflicted on a
conscious victim. 2
This assignment is patently without merit. We will not
lengthen this opinion by again reciting the gruesome and gory
facts summarized above. Indeed, it is unnecessary for us to answer
the question whether this aggravating circumstance may be employed
when the evidence establishes that a portion of the defendant's
acts took place after the death of the victim. This is so because
there was abundant evidence here that many of the wounds were
inflicted prior to death. Additionally, the character and severity
of the wounds support the submission of this aggravating circum-
stance. Of particular importance is the pathological evidence
that some of the wounds appeared to be defensive, some sixteen
on Ms. Chalflinch's right arm. Indeed, the inference from the
evidence appearing in this record arises above the level of that
we have reviewed in previous cases in which we have upheld the
admission of this particular aggravating circumstance. This
assignment of error is overruled.
B.
Defendant next contends that the trial court erred in
refusing to submit requested mitigating circumstances that (1)
the defendant did not act in a calculated manner, (2) the
defendant did not act for pecuniary gain; and (3) the defendant
was under the influence of mental or emotional disturbance.
This Court has previously defined a mitigating circum-
stance as follows:
A defintion of mitigating circumstance approved
Appendix A, p 32
oe evap -33-
by this Court is a fact or group of facts
which do not constitute any justification or
excuse for killing or reduce it to a lesser
mr oy of the crime of first-degree murder,
which may be considered as extenuating, or
reducing the moral culpability of killing,
or making it less deserving of the extreme
punishment than other first-degree murders. |
State v. Irwin, 304 N.C. 93, 104, 282 S.E. 2d 439, 446-47 (1981).
That the murder was not committed in a calculated manner is not,
in our opinion, a mitigating circumstance. Indeed, it is diffi-
cult for this Court to understand how a murder committed after
premeditation and deliberation is not done in a calculated manner.
Moreover, the State does not have the burden of proof
that, in a given capital case, no mitigating circumstances
exist. State v. Barfield, 298 N.C. 306, 259 S.E. 24 510. It is
the responsibility of the defendant to go forward with evidence
that tends to show the existence of a given mitigating circumstance
and to prove its existence to the satisfaction of the jury. State
v. Hutchins, 303 N.C. 321, 279 S.E. 24 788. Our review of the
record discloses no evidence from the defendant that he did not
act in a calculated manner. Indeed, as discussed in connection
with other contentions above, the evidence is to the contrary.
From the evidence that a bloody knife blade was found in the
victim's apartment which was of the same type as the knives in
defendant's tool box, the jury could have, and apparently did,
infer that the knife used to kill the victims was taken up to
their apartment by the defendant for that purpose.
We express no opinion on whether the evidence shows
that defendant did not act for pecuniary gain. Even assuming
that it does, the evidence merely shows the absence of an aggra-
vating circumstance and not the presence of a mitigating one.
Appendix A, p 33
. ‘ ,. ’ , -34-
At trial, defendant contended that he. was entitled to
the mitigating circumstance that he acted under the influence of
mental or emotional disturbance as contemplated by G.S. 15A-
2000(f) (2). In support, he relied on the testimony concerning
his use of alcohol and drugs on Sunday evening, 24 August 1980.
We have answered this issue in State v. Irwin, 304 N.C.
at 106, 282 S.E. 2d at 447-48. There, we said:
voluntary intoxication by alcohol or narcotic
drugs at the time of the commission of a murder
is not within the meaning of a mental or emotional
disturbance under G.S. 15A-2000(f) (2). Voluntary
intoxication, to a degree that it affects defendant's
: ability to understand and to control his actions...
is properly considered under the provision for
impaired capacity, G.S. 15A-2000(f) (6).
(Citation omitted.) The trial judge here correctly followed the
law established by Irwin. He submitted the mitigating circumstance
of impaired capacity and the jury found this mitigating circumstance
in both murders.
This assignment of error is overruled.
Cc.
During the sentencing phase of the defendant's trial,
the State presented the testimony of Roy Junior Brown (Roy).
Roy testified that defendant told Roy in jail that he, defendant,
had murdered two people using a knife and that he did not under-
stand why his ring was not given back to him. Defendant's next
contention is that this testimony was improperly admitted because
it referred only to the guilt or innocence of the defendant and
not to any aggravating or mitigating circumstances. Defendant's
contention is without merit.
G.S. 15A-2000(a) (3) provides that the State is not
Appendix A, p 34
=
ius: ins Jini, eli (
required to resubmit evidence presented during the guilt determi-
nation phase of the case at the sentencing phase. However, all
such evidence is competent for the jury's consideration in
passing on punishment. Moreover, “[a)ny evidence which the
court deems to have probative value may be received. G.Ss.
§ 15A-2000(a) (3) (1978). Here the trial court obviously deemed
Brown's testimony to be relevant and to have probative value.
Because the testimony would have been admissible at the guilt
phase of the trial, we are unwilling to hold that evidence
clearly proper for the jury to consider under the statute had
it been presented at the guilt phase of the trial is inadmissible
simply because it was introduced at a later stage of the pro-
ceedings.
Additionally, the evidence is relevant to rebut evidence
submitted by the defendant at the guilt phase of the trial which
would support mitigating circumstances. This is especially true
with respect to the mitigating circumstance that defendant was
suffering from a mental impairment as a result of alcohol and
drug use. The testimony from the Bp A that defendant
stated that he had killed two persons with a knife and that his
ring was later found in one of the bodies is some evidence that
defendant was not so intoxicated at the time of the murders that
he was not aware of what he was doing and could not remember
them. The testimony also tended to rebut other testimony intro-
duced by the defendant at the guilt phase concerning his good
conduct in the past and was, therefore, relevant to the mitigating
circumstance of “although the act itself may have been harmful,
the defendant has not shown himself to be otherwise evil" by
showing defendant's lack of remorse.
Appendix A, p 35
enivete. ce ane
For the reasons stated, this assignment of error is
overruled. However, we would note for the benefit of the trial
courts that the better procedure, in a situation in which the
evidence relates only to guilt or innocence, is to present such
evidence during the guilt determination phase.
Finally, under this contention, defendant argues that
the trial court erred by refusing to allow him to question the
assistant district attorney on voir dire concerning promises
made by the State to the witness who testified at the sentencing
phase. We think the trial court acted properly in refusing to
allow defendant to examine, as a hostile witness, a fellow
officer of the court concerning information which defendant
failed to illicit from the witness whose testimony he was seeking
to discredit. During the lengthy voir dire, Roy Brown took the
stand and stated that sometime after revealing the information
to officers, he was taken before a judge and tried for two of
the counts for which he was in prison and that he received a
suspended sentence and his bond was substantially reduced. With
this information from the voir dire, defendant had, it seems to
us, sufficient information to pursue his concern that Roy Brown's
testimony was in exchange for favorable treatment by the State.
However, when the witness testified before the jury, Roy Brown
was not asked any questions about any such consideration or about
the disposition of charges against him. We agree with the State
that the appropriate avenue of inquiry into the bias of a witness
is to ask the witness himself.
This assignment of error is overruled.
Appendix A, p 36
Vii te -37-
D.
Defendant next argues that the trial court improperly
charged the jury concerning the possibility of parole for a life
sentence. We find no error in these instructions.
The jury, after some deliberation during the sentencing
phase, inquired of the court concerning the chances for parole
from a life sentence. The cefendant requested that the jury be
instructed that “life sentence means life sentence, and death
means death." Instead, the court gave the following instruction:
I instruct you that the question of eligibility
for parole is not a proper matter for you to con-
sider in recommending punishment and it should be
eliminated entirely from your consideration and
dismissed from your mind. In considering whether
to recommend death or life imprisonment, you should
determine the question as though life imprisonment
means exactly what it says, imprisonment in the
State Prison for life. You should decide the
question of punishment according to the issues
submitted to you by the Court wholly uninfluenced by
consideration of what another arm of the government
might or might not do at some time in the future.
After the jury had been given this instruction, defendant requested
that the court charge the jury as follows:
Under the law of the State of North Carolina,
a defendant sentenced to life imprisonment for
first degree murder is never entitled to a parole
and a defendant who is sentenced to two consecutive
terms of life imprisonment for first degree murder
is not even eligible for consideration for parole
until 40 years has passed.
The trial court refused his request. Defendant assigns
error to the refusal to charge the jury according to his requests.
While the tendered instruction by the defendant is a
correct statement of the law, that submitted by the trial court
is also correct and in accordance with instructicns previously
approved by this Court. The trial court is not required to
Appendix A, p 37
° OR ares
. . -38-
instruct the jury in the precise words requested by the defendant.
The instruction given by the trial court conveyed the substance of
defendant's first request. No more is required. :
The long-standing rule in this jurisdiction is that a
defendant's eligibility for parole is not a proper matter for
consideration by a jury. E.g., State v. Conner, 241 N.C. 468, 85
S.E. 24 584 (1955). That is exactly what the trial court told
the jury. Defendant's requested instruction concerning the
eligibility for parole, although a correct statement of the law,
was not appropriate information for the jury to consider in its
deliberations. We find no error in the instruction given by the
trial court or in its refusal to instruct the jury according to
defendant's requests.
This assignment of error is overruled.
E.
The trial court submitted each of the two killings as
an aggravating circumstance for the other under the “course of
conduct" provision of G.S. 15A-2000(e) (11). Defendant argues
that the submission of each murder as an aggravating circumstance
for the other violates double jeopardy. This Court has rejected
a similar argument, based on similar reasoning, in State v.
Pinch, __ N.C ’ S.E. 24 _— (No. 43A81, filed 2
June 1982). Justice Copeland, writing for the Court, has presented
a thorough discussion of this contention in Section XII of the
opinion in Pinch, N.C. at ’ S.E. 24 at , and
it is unnecessary for us to repeat it here. Suffice it to say
that for the reasons stated in Pinch, this assignment of error
is overruled.
Appendix A, p 38
*
y - ) = id ee tgp
<a pee -39-
In connection with this contention, defendant also
argues that the trial court committed prejudicial error by sub-
mitting an aggravating circumstance which was not listed. by the
State in its response to defendant's motion for a bill of
particulars. In its motion for a bill of particulars defendant
requested notice of which aggravating circumstances would be
relied on by the State at trial. The State responded, but did
not include in its list the aggravating circumstance that the
murder was part of a course of conduct in which the defendant
engaged in crimes of violence against another person, G.S.
§ 15A-2000(e) (11) (Cum. Supp. 1981). Defendant contends that
(1) due process requires such notice, and (2) the order of the
trial court concerning defendant's motion for a bill of particulars
required the disclosure.
This Court has previously rejected defendant's due
process argument in State v. Taylor, 304 N.C. 249, 283 S.E. 2d
761 (1981). There, we reasoned that the only aggravating
circumstanceson which the State may rely are enumerated in G.S.
15A-2000(e) and that this statutory notice is sufficient to meet
the constitutional requirements of due process. We reiterate
that holding here.
We also disagree with defendant that the trial court
erred in submitting this aggravating circumstance because the
State did not comply with the order resulting from his motion
for a bill of particulars. The trial court's order stated:
That the Court ORDERS that the State
disclose to the defendant's counsel the aggravating
circumstances in the above referenced case; that
the Court further ORDERS that the State may
disclose the aggravating circumstances without
prejudice and that the State may rely on other
Appendix A, p 39
Ee
-40-
circumstances as the evidence and circumstances
become known to the State.
The State did disclose the other aggravating circumstances
on which it eventually relied. We think the trial court's order
merely required the State to disclose those aggravating circun-
stances which it knew it intended to use at the time it responded
to the motion for the bill of particulars. In that light, the
State complied with the trial court's order. We do not believe
the trial court ‘intended to limit the State to those disclosed.
Indeed, the court clearly indicated that its order was to be
"without prejudice” to the State.
While not essential to our decision here, we do agree
with the State that G.S. 15A-925 does not authorize a trial court
to order the State to disclose its aggravating circumstances prior
to trial. That statute provides:
(b) A motion for a bill of particulars must
request and specify items of factual information
desired by the defendant which pertain to the
charge and which are not recited in the pleading,
and must allege that the defendant cannot
adequately prepare or conduct his defense without
such information.
(Emphasis added.)
The trial court ordered the State to “disclose to the
defendant's counsel the aggravating circumstances in the above-
referenced case.” We agree with the State that aggravating
circumstances are not “factual information” within the meaning
of G.S. 15A-925.
This assignment of error is overruled.
F.
Defendant next contends that the trial court erred in
Appendix A, p 40
Jeet aah coins 2s Bg OR
instructing the jury that it must recommend that defendant be
sentenced to death if it found iuiehfanenciutian circumstances
outweighed the mitigating circumstances, This argument, based
on similar reasoning, has been recently rejected by this Court
in State v. Pinch, _—*N.C. ss, ___—soS0B. 24 __— (1982),
and State v. Williams, _ N.C. ’ S.2. 24 __— (No.
70A81, filed Zz June 1982). These opinions fully discuss this
assignment of error and we find it unnecessary to lengthen this
opinion by repetition of the discussions contained in those cases.
For the reasons stated in Pinch and Williams, this assignment of
error is overruled.
G.
Defendant next contends that, in a capital case, the
trial court on request should instruct the jury on the consequences
of the inability of all of its members to agree on a sentence.
Defendant asked the trial court to charge that a sentence of life
imprisonment would be imposed in the event that the jury failed
to reach unanimous agreement cn the proper sentence.
Again, this Court has specifically addressed and
rejected the argument here presented by the defendant in State v.
Hutchins, 303 N.C. 321, 279 S.E. 2d 788; State v. Johnson, 298 N.C.
355, 259 S.E. 24 752. We reiterate those holdings and overrule
this assignment of error.
H.
Defendant finally contends that the death penalty
constitutes cruel and unusual punishment under the eighth
amendment of the United States Constitution and may not be
imposed.
Appendix A, p 41
-42-
This assignment of error has been rejected on numerous
eceseiens ,/eties v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L.
Ed. 2d 859 (1976), State v. Goodman, 298 N.C. 1, 257 S.E. 2d
569 (1979), and we are presented with no additional reasoning
to change our position.
Iv.
As noted in State v. Rook, 304 N.C. 201, 283 S.E. 2d
732 (1981), cert. denied, OMe: (No. 81-6143, March 22,
1982), G.S. 15A-2000(d) (2) directs this Court to review the
record in a capital case to determine whether the record supports
the jury's finding of any 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.
As stated in Rook, this mandate serves as a check against the
capricious or random imposition of the death penalty, and
our 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. In fulfilling
this role, we are sensitive not only to the mandate of the
Legislature but to the constitutional dimensions of our review.
Mindful of the very serious responsibility placed on us
by G.S. 15A-2000(d) (2), we have carefully reviewed the record of
lenis Court has not yet stated whether the "similar cases"
for comparison purposes consist of cases in which the death penalty
was imposed or all first degree murder cases regardless of the
punishment. As noted in my concurring opinion in State v. Pinch,
N.C. ’ S.E. 2d (No. 43A81, filed 2 June 1982),
ft would compare the death sentence in the case at issue to all
similar first degree murder cases regardless of the punishment.
.) Ath ‘G2
ab ae aun
of this case along with the briefs and oral arguments. We conclude
that there is sufficient evidence in the record to support the jury's
findings as to the aggravating circumstances submitted. . We also
find nothing in the record to indicate that the sentence of death
was imposed under the influence of passion, presuaice énd any
other arbitrary factor.
The record before us reveals two of the most blood-
thirsty and brutal crimes which have ever been reviewed by this
Court. We again refrain from repeating gory details summarized
at the beginning of this opinion. Suffice it to say that this
defendant has been convicted of stabbing to death a young mother
and her child, with no apparent motive, and extensively mutilating
their bodies. The bloody facts disclosed by the record before us
leave this Court with no choice but to conclude that the sentence
of death imposed is not disproportionate or excessive considering
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.
Append: A, p 43
No. 30A81 - State v. Brown
Justice Exum dissenting as to sentence.
For the reasons stated in Part I of my dissenting
opinion in State v. Pinch, N.C. ’ S.E.2d
(filed 2 June 1982), I believe it was prejudicial error for
the trial judge to instruct the jury that it had a duty to
recommend the death sentence if it answered certain issues
favorably to the state.
Therefore I vote to vacate the death sentence and
to remand for a new sentencing hearing. I concur with the
result reached by the majority in the guilt phase of the case.
32 4180N 40
2Vans WeITd
27 24iL Nl
40 33!
a
ow
7
a
3
yuriouy
1BNO2 2h
Appendix A, p 44
; Catan JUDGMENT
SUPREME COURT OF NORTH CAROLINA
XHBNHX 1982.
4 STATE OF NORTH CAROLINA =e
v8.
A No....30A81_.... Union County.
DAVID J. BROWN
This cause came on to be argued upon the transcript of the record from the Superior Court.........Union County:
_ Opon consideration whereof, this Court is of opinion that there is.nO__error in the record and proceedings of said Superior Court,
It ie therefore considered and adjudged by the Court here that the opinion of the Court, as delivered by the
Honorable J+ PHIL RLTON, Associate Justice, be certified to the said Superior Court, to the intent that ¥he f
PROCEEDINGS BE HAD THEREIN IN SAID CAUSE ACCORDING TO LAW AS DECLARED IN SAID OPINION
-
And it is considered and adjudged further, that the__..Refendant Do Pay
othe costs of the appeal in this Court incurred, to wit, the sum of
ae
_**## #THO-HUNDRED FORTY NAN, 5,04, i dollars ($241.50 ),
CLERK OF THE SUPREME COURT
and execution issue therefor. ice ity” Pr --38G____ day of -—Augus & 19 82.
A TRUE COPY . Luagy A, Sigel
. one CLERK _J. GRI GREGORY WR
tod nh tecrtnchtr. “ L2_ By Z By:
_--—— ————- —
Appendix B
Y
Oe ee
bid (
APPENDIX C
STATE V. PINCH, N.C. » 292 S.E.2d 203, 229 (1982) (Exact retyping
of slip opinion)
Both the prosecutor and the trial court advised the jury that it had a
duty to recommend a sentence of death if it found three things: (1) that one
or more statutory aggravating circumstances existed; (2) that the aggravating
circumstances were substantial enough to warrant the death penalty; and (3)
that the aggravating cireunstances outweighed the mitigating circumstances
beyond a reasonable doubt. On the other hand, the jury was also advised that
it had the duty to recommend a sentence of life imprisonment if it did not
find any one of those three things. These directions to the jury were based
upon the statutory criteria set forth in G.S. 15A-2000(b) and (c) and conformed
to the N, C. Criminal Pattern Jury Instructions §150,10 (1980), 6
Nevertheless, defendant assigns error to the foregoing on the basis that
such instructions "prejudictally withdrew from the jury its final option...to
recommend a life sentence notwithstanding its earlier findings.” Defendant's
Brief at 75. This assignment lacks merit,
The jury had no such option to exercise unbridled discretion and return a
sentencing verdict wholly inconsistent with the findings it made pursuant to
G.S. 15A-2000(c), The jury may not arbitrarily or capriciously impose or reject
a sentence of death. Instead, the jury may only exercise guided discretion
in making the underlying findings required for a recommendation of the death
penalty within the “carefully defined set of statutory criteria that allow
them to take into account the nature of the crime and the character of the
accused." State v. Johnson, 298 N.C, 47, 63, 257 S.E.2d 597, 610 (1979); see
State v. Barfield, 298 N.C, 306, 349-52, 259 S.E.2d 510, 541-43 (1979); cert.
denied, 448 U.S. 907, 100 S, Ct. 3050, 65 L. Ed. 2d 1137 (1980). Moreover,
defendant's contention was implicitly answered in State v. Goodman, 298 N.C.
1, 257 S.£.2d 569 (1979), in which this Court overruled an assignment of error
alleging that the trial court had erred in failing to instruct the jury that
it could still recommend life imprisonment even though it found that the
16 «= Similar instructions about the jury's duty to return a certain sentencing
verdict, based upon its affirmative findings under G.S. 15A-2000(c), were
given in three other death cases previously decided by ovr Court, in which no
corresponding exception or assignment of error was raised on appeal: State v.
Barfield, 298 N.C. 306, 259 S,E.2d 510 (1979), cert. denied, 448 U.S. 907, 100
S. Ct. 3050, 65 L. Ed. 2d 1137 (1980); State v. Martin, 303 N.C, 246, 278
$.E.24 214, cert, denied, U.S. » 102 S. Ct. 431, 70 L. Ed, 2d 240
(1981); and State v. Rook, S. Ct. ° L. Ed. 24 (1982).
Appendix C - P 1
aggravating circumstances outweighed the mitigating ones, Justice Britt,
speaking for the Court in Goodman, explained that:
{I]t would be improper to instruct the jury that they may, as defendant
suggests, disregard the procedure outlined by the legislature and
impose the sanction of death at their own whim. To do so would be
to revert to 4 system pervaded by arbitrariness and caprice. The
exercise of such unbridled discretion by the jury under the court's
instruction would be contrary to the rules of Furman and the cases
which have followed it.
Id. at 35, 257 S.E.2d at 590. For these reasons, we hold that the jury was
correctly informed that it had a duty to recommend a sentence of death if it
made the three findings necessary to support such a sentence under G.S.
15A=-2000(c) . ad
17 There is no constitutional infirmith in such an instruction. See, e.g.
Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (cited
in the dissent).
Appendix C - p 2
2
. Am
7)
NO. 4348) - State v. Pinch *
“st ‘3
Justice Exum dissenting as to sentence.
‘ ‘
’ ic Se .
= t
~~.
I.
I find myself, first, in strong disagreement with
the majority on an extremely important new question dealing
with the construction of our death penalty statute. The
majority holds, after somewhat cursory treatment and a bare-
bones analysis, that under the statute, G.S. 15A-2000, if the
jury finds: (1) the existence of one or more statutory aggra-
vating circumstances, (2) that the aggravating circumstance (s)
so found are sufficiently substantial to call for the death
penalty and (3) the aggravating circumstance(s) outweigh the
mitigating circumstances, then the jury must return the death
penalty. Nowhere, of course, does the statute so provide,
The majority construes the statute in this way on the sole
ground that otherwise the statute would be subject to the . e
constitutional attack that a jury could decide between life
and death in its unbridled discretion. Yet decisions of the
United States Supreme Court, none of which are mentioned in
the majority's discussion, have made it abundantly clear that
the majority's interpretation is not constitutionally required.
In one of its first cases construing our death penalty
statute, this Court noted, “[t)he first maxim of statutory con-
struction is to ascertain the intent of the legislature. To do
this, this Court shovld consider the statute as a whole, the
Appendix D, p 1
Ch Re
-2-
spirit of the statute, the evils it was designed to remedy,
and what the statute seeks to accomplish.” State v. Johnson,
298 N.C. 47, 56, 257 S.E.2d 597, 606 (1979). In Johnson,
this Court recognized that our death penalty statute was
enacted following a quintet of cases all decided by the United
States Supreme Court on 2 July 1976. These cases struck down
mandatory death penalty statutes in North Carolina, Woodson v.
North Carolina, 428 U.S. 280 (1976) (plurality opinion), and
Louisiana, Roberts v. Louisiana, 428 U.S. 325 (1976) (plurality
opinion), but sustained death penalty statutes which, in varying
degrees, sought to control the discretion exercised in capital
sentencing in Georgia, Gregg v. Georgia, 428 U.S. 153 (1976)
(plurality opinion); Florida, Proffitt v. Florida, 428 U.S. 242
(1976) (plurality opinion); and Texas, Jurek v. Texas, 428 U.S.
262 (1976) (plurality opinion). This Court noted in Johnson that
these five cases “made clear that neither unbridled, unguided
discretion nor the absence of all discretion in the imposition
of the death penalty is constitutionally permissible.” 298
N.C. at 58, 257 S.E.2d at 607 (emphasis supplied). After further
discussion of United States Supreme Court decisions and various
provisions of the Model Penal Code, upon which our statute was
largely based, this Court concluded in Johnson, 298 N.C. at 63,
257 S.E.2d at 610:
In summary, there are a number of
controlling factors governing the inter-
pretation of our death penalty statute.
Unbridled discretion in the imposition
of the sentence is not permitted. On
the other hand, sentencing juries must
Appendix D, p 2
ra Pen a ae
-j3-
have some discretion to determine in a
rational and consistent manner those
cases in which the death penalty should .
be imposed. Juries are to be guided in
this process by a carefully defined set
of statutory criteria that allow them:
to take into account the nature of the
crime and the character of the accused.
Thorough jury instructions, which incor-
porate and reflect the definitions
accorded to these criteria and which
are fully applied to the facts of each
case, must be given. In each case the
process must be directed toward the
jury's having a full understanding of
both the relevant aggravating and miti-
gating factors and the necessity of
balancing them against each other in
determining whether to impose the death
penalty. Lastly, any imposition of the
death penalty by the jury should be
searchingly reviewed by the appellate
courts to insure the absence of unfair
ness, arbitrariness or caprice in the
result.
Regarding the question before us, the statute, G.S.
15A-2000, provides in pertinent part as follows:
(b) Sentence Recommendation by the
Jury.-- . + « In all cases in which the
death penalty may be authorized, the
judge shall include in his instructions
to the jury that it must consider any
aggravating circumstance or circumstances
or mitigating circumstance or circun-
stances, from the lists provided in sub-
sections (e) and (f) which may be supported
by the evidence, and shall furnish to the
jury a written list of issues 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 recommendation to the court,
based upon the following matters:
(1) Whether any sufficient aggravating
circumstance or circumstances as
enumerated in subsection (e) exist;
Appendix D, p 3
-4-
(2) Whether any sufficient mitigating
ciccumstance or circumstances as
enumerated in subsection (f), "
which outweigh the aggravating
circumstance or circumstances
found, exist; and
(3) Based on these considerations,
whether the defendant shou be
sentenced to death or to {mprison-
page in the State's prison for
e.
(c) Findings in Support of Sentence of
Death. -- When the jury recommends sentence
of death, the foreman of the jury shall”
sign a writing on behalf of the jury which
writing shall show:
(1) The statutory aggravating circun-
stance or circumstances which the
jury finds beyond a reasonable
doubt; and
(2) That the statutory aggravating cir-
cumstance or circumstances found
by the jury are sufficiently sub-
stantial to call for the~imposition
of the death penalty; and,
(3) That.the mitigating circumstance or
circumstances are insufficient to
outweigh the aggravating circum-
stance or circumstances found.
{Emphases supplied.)
In essence, then, the statute provides that in deter-
mining whether to impose death or life imprisonment the jury
“must consider" certain aggravating and mitigating circumstances;
that the jury's sentence socodsnandation shall be “based upon"
the sufficiency of the aggravating circumstance(s) and the miti-
gating circumstance(s) and their relative weights; and that “when
the jury recommends a sentence of death,” it must sign a writing
Appendix D, p 4
-
ides | &
=$<
in which three questions are answered affirmatively and unani-
mously beyond a reasonable doubt.
From this statutory scheme the legislative intent
clearly emerges. The legislature has sought to strike a balance
between fairness to the individual defendant and consistency
among the cases in which the death penalty is imposed. It has
designed a statute which avoids the two extremes of mandatory
death penalties or unbridled discretionary action by juries.
The legislature intended for the jury to consider: first, the
sufficiency of the aggravating circumstance(s); second, whether
any mitigating circumstance(s) exist which outweigh the aggra-
vating circumstance (s); and third, based on these considerations
whether to recommend a death sentence or life imprisonment. Only
when the jury determines to recommend death is the jury required
to sign a writing which shows its affirmative, unanimous findings
that one ox more statutory aggravating circumstances exist beyond
a reasonable doubt, that they are sufficiently substantial to
make the death penalty appropriate and that the mitigating cir-
cumstances do not outweigh the aggravating circumstances.
Subsection (b) states in two places that the jury's sentence
recommendation is to be based on these considerations, not
——}
— ee —_—— -~— —--~
although the jury is not required by statute to answer these
questions unless they recommend death, I believe documentation
of the jury's findings in every capital sentencing proceeding,
whether they recommend death or life, is necessary for this Court's
use in conducting its proportionality review required under G.5.
15A~-2000(d) (2).
Appendix D, p 5
- ~~ = —
ety Ge Co
. ee
decreed by them. There is nothing in this scheme to suggest
a legislative intent to require the jury to return a sentence
of death even if it should answer the three crucial subsection
(c) issues affirmatively, just as there is nothing in the stat-
ute which permits a jury to ignore the delineated considera-
tions in its deliberations. To hold, as does the majority,
that if affirmative easwers in writing to these three issues
are prerequisite to a jury's seccumbndatian of death, then
death must be recommended when the prerequisites are met is,
logically, a non sequitur.
This logical trap is easily sprung; it caught me in
my dissent in State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981),
cert. denied, _ —U.S. (1982), where I lapsed into the same
fallacy now being urged by the majority.” In Rook, however,
both my dissent and the majority opinion were addressing a
different question, i.e., whether the jury was required to
——— — ee eee ee ee ee er
2th Rook, supra, I wrote:
Indeed, in Georgia, the jury may return a death sen-
tence upon finding one or more ri Agate circum-
stances, no matter how it regards.the mitigating cir-
cumstances. In contrast, under our statute the jury
may return a death sentence recommendation only if it
finds: (1) the existence of one or more a
circumstances; (2) that the aqgravating circumstance (s)
found by it are sufficiently substantial 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
existence of aggravating circumstances and their suf-
ficient substantiality, may not recommend life impris-
onment unless it further finds that the mitigating cir-
cumstances are sufficient to outweigh the aggravating
circumstances. .
304 N.C. at 242-43, 283 S.E.2d at 757 (emphasis original) (footnote
omitted).
Appendix D, p 6
oe ee (
»
=e
specify which mitigating factors it found to exist. The ques-
tion now peing addressed was not raised in Rook, and any conclu-
sion about it was not necessary to the dissent. With the benefit.
of briefing, argument and my own research, I am inati noel that
my initial conclusion on the point here in issue, as I expressed
it in Rook, was wrong, just as I believe the majority's similar
conclusion is wrong. The conclusion is not less a non sequitur
because I once subscribed to it.
Our trial judges initially properly construed the
statute to mean that if the jury answered the three issues
affirmatively it could, but was not required to, recommend the
death penalty. The first Pattern Jury Instruction promulgated
after the statute provided that if the jury answered the crucial
issues aitirnativels then it “may recommend the death penalty."
N.C.P.I. Crim. 150.10, p. 5 (June 1977) (empnasis supplied). A
subsequent revision of the instruction emphasized this point by
providing that the jury “may, although [it) need not, recommend
that the defendant be sentenced to death.” N.C.P.I. Crim,
150.10, p. 4 (Replacement, May 1979). These Limarieehtone ora
variation of them, have been followed in a large number of death
penalty cases.”
- —
eee _ a ee me ee ee ee ee
_ Asee, e.g., State v. Silhan, 302 N.C. 223, 275 S.E.2d 450
(1981) (R. at 192, “you may recommend death"); State v. Detter,
298 N.C. 604, 260 S.E.2d 567 (1979) (R. at 238, “you may recommend");
State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979) (R. at 111,
“you may recommend"); State v. Spaulding, 298 N.C. 149, 257 S.E.2d
391 (1979) (R. at 333, “Based upon these considerations as instructed
by the court, you will advise the court whether the defendant should
be sentenced to life imprisonment or déath"); State v. Cherry, 298
Appendix D, p 7
After our decision in State v. Goodman, 298 N.C. 1,
257 S.£.2d 569 (1979), the Pattern Jury Instruction for our
trial judges was changed so as to provide that if the jury
answered the three issues affirmatively, it would be its “duty
to recommend that defendant be sentenced to death.” N.C.P.I.
Crim. 150.10, pp. 3-4 (Replacement, May 1980). The case cited
in support of this change in the instruction is Goodman.
_ ae soe —oe ee oe o— 0
N.C. 86, 277 S.E.2d 551 (1979), cert. denied, 446 U.S. 941 (1980)
(R. at 341, “Based upon these considerations as inutructed by the
Court, you will advise the Court whether the defen ant should be
sentenced to life imprisonment or death"); State v. Goodman, 298
N.C. 1, 257 S.E.2d 569 (1979) (R. at 185, “you may chen recommend
the death penalty"); State v. Jones, 296 N.C. 495, 251 S.E.2d 725
(1979) (R. at 276, “you may~-but are not compelled to--recommend
the death penalty").
Other cases reviewed by this Court have contained instruc-
tions which went even further in telling the jury that the death
sentence was not mandated by affirmative answers to the crucial
issues. For example, in State v. Oliver, 302 N.C. 28, 274 S.f.2a
183 (1981)(R. at 668), the jury was told:
Unless you have answered Issues One, Two, Four
fool you must recommend that a defendant in a
g ven case be sentenced to life. Only if you
have answered Issues One, Two and Four ‘yes’ may
you recommend that a defendant be sentenced to
death. Even then, though, you are not required
to do so. You still may recommend life imprison-
ment, However, if you answered Issues One, Two
and Four ‘yes’ you are, on further deliberations,
satisfied beyond a reasonable doubt that the only
just punishment for this defendant is--a given
defendant in a given case, is the death penalty,
then you may so recommend it; realizing, of course,
the tremendous responsibility which rests on your
shoulders when you make that recomnendation.
See, also, State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981)
(RS at 231, “you would then further deliberate upon your sentence
idiemondatton ); State v. Small, 301 N.C. 407, 272 S.E.2d 128
(1980) (R. at 618, “Even though you are not required to do so, you
may stiil recommend life in prison").
Appendix D, p 8
Le
The issue in Goodman, however, was not whether oe
jury should be told it has a “duty” to recommend the death
penalty if it answers the three issues affirmatively and unani-.
mously. The issue in Goodman was whether, as the defendant
contended, the trial court "should have explained to the jury
that it had the option of returning a recommendation of life
imprisonment even if aggravating circumstances were found to
outweigh mitigating circumstances.” Brief for Defendant Appel-
lant at 15-16. Defeidant argued that “(i]t should be incumbent
upon.the trial Court to explain in detail that no mandatory
recommendation of the death penalty is required regardless of
findings as to aggravating and mitigating circumstances set
forth in the statute." Id.
Thus, defendant Goodman was arguing that the trial
court should be required to explain to the jury that it could,
in effect, ignore the considerations which by statute it must
consider in recomnending a life or death sentence. This goes
far beyond the permissive instruction actually given and upheld
in Goodman, i.e., the instruction that if the jury answered the
three subsection (c) issues affirmatively and unanimously, it
“may then recommend the death penalty.” (R. at 185).
The state's brief in Goodman recognizes that “the
Court left the jury with the understanding that, even should
they find more aggravating than mitigating circumstances, they
could still recommend life imprisonment. . . . At no point did
the Court state that the jury could not recommend life imprison-
ment when the aggravating circumstances outweighed the mitigating.
‘Appendix D, p ?
What the Court was saying was that (even where such aggravating
circumstances appeared to be more substantial than mitigating
circumstances) the jury could still recommend life imprisonment."
Brief for the state at 19-20.
The Court in Goodman answered the defendant's argument
as follows, 298 N.C. at 34-35, 257 S.E.2d at 590:
His argument is that without such instruc-
tion the jury will mathematically balance
the two types of factors against each
other and will impose the death penalty
whenever aggravating circumstances out-
number mitigating ones. We do not agree
that this is the manner in which & jury
will reach its decision on this important
question or that the instruction for which
defendant contends is required by our
statute,
It must be emphasized that the delibera-
tive process of the jury envisioned by G.S.
154-2000 is not a mere counting process.
State v. Dixon, supra; State v. Stewart,
supra. The jury is charged with the heavy
responsibility of subjectively, within the
parameters set out by the statute, assess-
ing the appropriateness of imposing the.
feath penalty upon a particular defendants
for a particular crime. .Nuances of charac-
ter and circumstance cannot be weighed in
a precise mathematical formula.
At the same time, we believe that it
would be improper to instruct the jury that
they may, as defendant suggests, disregard
the procedure outlined by the legislature
and impose the sanction of death at their
own whim. To do so would be to revert to
a system pervaded by arbitrariness and
eaprice. The exercise of such unbridled
discretion by the jury under the court's
instruction would be contrary to the rules
of Furman and the cases which have followed
it. For these reasons defendant's seventh
assignment of error is overruled.
(Emphases supplied. }
Appendix D, p 10
—— o- ~2- * _—-
i -Ll-
The majority's conclusion on this point in the instant
case as well as the change in the Pattern Jury Instruction are
based on a misreading of Goodman. Goodman simply recognized
that, under the instructions as given, there would be no cause
for the jury “mathematically” to balance the aggravating against
the mitigating and “impose the death penalty whenever aggravating
circumstances outnumber mitigating ones." Goodman cautioned that
juries should not be instructed in a manner which would cause
them to “impose the sanction of death at their own whim." Goodman
does not support the proposition that a jury has a duty to impose
the death penalty whenever it concludes that the statutory aggra-
vating circumstances are sufficiently substantial to call for it
and that the mitigating circumstances are insufficient to outweigh
the aggravating. Goodman recognizes that given such determina-
tions, a jury may yet opt for life imprisonment and notes that
there is no way to escape some subjectivity in deciding who shall
live.and who shall die. Juries are called on in this kind of
decision, we said in Goodman, to consider “[(n)uances of character
and circumstance [which] cannot be weighed in a precise mathe-
matical formula."
It is for this reason that a jury ought not be required
to return the death penalty simply because it answers the crucial
subsection (c) issues affirmatively. Conscientious juries may
determine that these issues ought to be answered affirmatively
‘ and yet, because of circumstances of the case, “nuances,” if you
will, not subject to articulation in a statute or a verdict and
Appendix D, p 1}
x -12-
not perhaps articulable by the jusors themselves, feel impelled
to recommend that the death penalty not be imposed. 4 We should
not construe our statute to require such a jury, nevertheless,
to impose it. ~-
Our statute is designed simply to insure that certais
specific (subsection (c)) prerequisites are met before the des -h
penalty is imposed. Its only prerequisites for the imposition
of life imprisonment are that the jury base such a decision
(subsection (b)) on a weighing against each other of various
aggravating and mitigating circumstances which it may find to
exist. Although the jury may not recommend death without spe-
cifically, and in writing, answering subsection (c) issues affirm-
atively, even if it does so it may yet recommend life.
The United States Supreme Court has made it quite clear
that these kinds of death penalty or life imprisonment decisions
do not result in the unbridled discretionary determinations found
wanting in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam).
a —
es ee ee
4tndeed, juries have answered the crucial subsection (c)
issues affirmatively and yet either recommended life imprison-
ment, State v. King, 301 N.C. 186, 270 S.E£.2d 98 (1980); State
v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979); or were unable
unanimously to agree on a sentence, thus requiring the judge
to impose a life sentence pursuant to G.S. 15A-2000(b). State
v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981), on resentencing
in Columbus Superior Court (Case No. 79CRS1943); State v.
Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980).
At least one jury has found ambiguity in the “Issues and
Recommendation as to Punishment" form generally submitted to
juries deliberating on sentences in capital cases. State v.
Lake, 305 N.C. 143, 286 S.E.2d 541 (1981) (copy found in Case
No. 80CRS5530, Onslow Superior Court).
Appendix D, p 12
LLL EO, a
,
REAL (I
-*
ee wd io
In Bullington v. Missouri, 451 U.S. 430 (1981), the Court had
before it a Missouri death penalty statute very similar to ours..
In Bullington, the Supreme Court noted that a Missouri jury “is”
instructed that it is not compelled to impose the death penalty,
even if it decides that a sufficient aggravating circumstance
or circumstances exist and that it or they are not outweighed
by any mitigating circumstance or circumstances." 451 U.S. at
434-35. Although the question was not raised, there is no sug-
gestion in Bullington that such a statute would be constitu-
tionally infirm.
In Gregg v. Georgia, supra, 428 U.S. 153, the Supreme
Court considered a Georgia death penalty statute whic) provided
that the jury could return a sentence of death only it it found
the existence of one of ten statutorily specified aggravating
circumstances. The jury was not required to return a death
sentence even if it found the existence of one or more of the
ten statutorily specified aggravating circumstances and was
“not required to find any mitigating circumstance in o) 9
make a recommendation of mercy." Id. at 197. On app: s
death sentence, defendant argued that because a Georgia jury
had “the power to decline to impose the death penalty even if
it finds that one or more statutory aggravating circumstances
are present,” the statute vighetal the Furman prohibition against
unbridled discretion,
Id. at 203. The United States Supreme
Court answered by saying:
Appendix D, p 13
ree a eee
a ih
: -14-
This contention misinterprets Furman.
+ » » Moreover, it ignores the role of —
the Supreme Court of Georgia which re-
views.each death sentence to determine
whether it is proportional to other sen-
tences imposed for similar crimes. Since
the proportionality requirement on review
is intended to prevent caprice in the .
decision to inflict the penalty, the
isolated decision of a jury to afford
mercy does not render unconstitutional
Teath sentences imposed on defendants
who were sentenced under a system that
does not create a substantial risk of
arbitrariness or caprice.
428 U.S. at 203 (emphasis supplied). In answering defendant's
contention that there were other discretionary decisions which
could be made in the processing of a murder case which would re-
sult in some vandidates for the death penalty actually escaping
it, the Supreme Court said:
Nothing in any of our cases suggests
that the decision to afford an individual
defendant mercy violates the Constitution.
Furman held only that, in order to mini-
mize the risk that the death penalty would
_ be imposed oh a capriciously selected
“group of offenders, the decistfon to impose
it had to be guided by standards so that
the sentencing authority would focus on
the particularized circumstances of the
crime and the defendant.
428 U.S. at 199. Mr. Justice White, joined by the Chief Justice
and Mr. Justice Rehnquist, said in a concurring opinion in Gregg:
The Georgia Legislature has plainly made
an effort to guide the jury in the exer-
cise of its discretion, while at the same
time permitting the jury to dispense mercy
on the basis of factors too intangible to
write into a statute, and I cannot accept
the naked assertion that the effort is
bound to fail.
428 U.S. at 222 (emphasis supplied).
Appendix D, p 14
. © \-- ©
-15- 4
Finally, in Jurek v. Texas, supra, 428 U.S. 262, the
Supreme Court considered a Texas statute which required the jury.
to impose the death seritence if it answered three questions 3
affirmatively.® The attack made on the Texas abatine was that
it created a mandatory death penalty in violation of eta oianet-
ples laid down in Woodson v. North Carolina, supra, 428 U.S. 280,
and Roberts v. Louisiana, supra, 428 U.S. 325. The Supreme Court
struggled with this question because the Texas statute appeared
to have no provision for the jury to consider mitigating circum-
stances. “Thus,” the Court said, “the constitutionaiity of the
Texas procedure turns on whether the enumerated ubations allow
consideration of particularized mitigating factors." 428 U.S.
at 272. The Court concluded that the jury's consideration of
mitigating circumstances, under the interpretation given the
. Sthe questions are these:
(1) whether the conduct of the defendant. that —
caused the death of the deceased was committed
deliberately and with the reasonable expectation
that the death of the deceased or another would
result;
(2) whether there is a probability that the de-
fendant would commit criminal acts of violence
that would constitute a continuing threat to
society; and ‘
(3) if raised by the evidence, whether the con-
duct of the defendant in killing the deceased
was unreasonable in response to the prdvocation,
if any, by the deceased.
See 428 U.S. at 269 (quoting Tex. Code Crim. Proc., art. 37.071 (b)
(Supp. 1975-76)). :
Appendix D, Pp 15
A
ie iia ae i ea ares eee
second question by the Texas Court of Criminal Appeals, was
encompassed in its decision on that question. See supra note 5.
therefore; the Court concluded that the statute was not Chis ©
to the “mandatory death sentence” attack.
Apparently under the rationale of Jurek, the naderiqte
interpretation of our statute would pass constitutional muster.
But I am satisfied that the interpretation for which I argue is
more solidly supported in the decisions of the United States
Supreme Court; whereas the majority's view, which could be sup-
ported only by Jurek, is at least, constitutionally suspect.
Assuming that we are free under the United States
‘Constitution to opt for either interpretation, we should adopt
the one which most nearly comports with the legislature's intent
as that intent is revealed in the plain words of the statute.
The legislature has developed a statutory scheme designed to
accommodate the twin “goals of measured, consistent application
and fairness to the accused.” Eddings v. Oklahoma, . U.S, ,.
__, 102 $.Ct. 869, 874, 71 L.Ed.24 1, 8 (1982). In Goodman,.
Supra, 298 N.C. 1, 257 S.E.2d 569, we held that instructions
which, in effect, explained to the jury that it could ignore the
procedure devised by the legislature were not authorized by our
statute and would be contrary to the Furman standards. Likewise,
instructions that tell the jury they must impose the death soneite
if they answer certain questions affirmatively and unanimously
- are not authorized by our statute and fail to give appropriate
weight to inarticulable, intangible “[n)vances of character and
Appendix D, p 16
Fe eA RR <n eee Ti =e a ewe
Sigh oe. X
circumstances." State v. Goodman, supra, 298 N.C. at 34, 257
S.E.2d at 590. ; sg
Our statute, like the Supreme Court said of its 4
decision in Lockett, © “is the product of a considerable history
reflecting the law's effort to develop a system of sipiver pun-
ishment at once consistent and prineipiea but also humane and
sensible to the uniqueness of the individual." Eddings v. Oklahoma,
supra, _ U.S. at ses 102 S.Cth. at 874, 71 L.Ed. 24 at 8. Both
the instructions disapproved in Goodman and those given in the
instant case upset the statute's finely tuned balance between
“consistency and sensibility to the uniqueness of an individual.
‘The instruction sought by the defendant in Goodman tilts too much
in favor of individualized consideration at the expense of con-
sistency; whereas the instruction given here tilts too much in
favor of consistency at the expense of individualized considera-
tion.
The instruction most in keeping with the legislative
design and which ought to be given in all cases is that recommended
by the ER Court Judges’ Pattern Jury Instruction Comnittee
in May 1979. In that instruction jury members are told that if
they answer the crucial issues affirmatively and unanimously,
“you may, although you need not, recommend that the defendant be
sentenced to death." N.C.P.I. Crim. 150.10 at 4. .
Stockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion).
Appendix D, p17 |
"Binch v v North Carotin( )
rtiorar
- 111. THE COLKT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER
THE NORTH CAROLINA SUPREME COURT HAS MISAPPREHENDED THE
MEANING OF FURMAN V. GEORGIA, 408 U.S. 238, BY HOLDING
THAT 4 CONSTRUCTION OF ITS DEATH PENALTY STATUTE WHICH
.WOULD PERMIT A JURY TO RENDER A LIFE VERDICT IF IT MADE
THREE SEPARATE FINDINGS REGARDING AGGRAVATING CIRCUM-
STANCES WOULD CONSTITUTE UNCONSTITUTIONAL UNBRIDLED
- DISCRETION,
C
The majority of the court below construed North
Carolina's post-Woodson!2 death penalty statute, N.C. Gen.
Stat. § 15A-2000 et seq. (1977), Appendix C, infra, to
require - instead of permit - a capital verdict upon certain
specific jury findings. 292 S.E.2d at 226-27. Petitioner's
jury ‘ad been instructed that "it had a duty to recommend a
sentence of death if it found three things!3 e «© ef* 293
Footnote 11 concluded:
249, 283 S.E.2d 761 (1981); State v. Pinch, 1.0;
292 S.E.2d 203 (1982). In the first of these cases, the
court characterized $2000(d)(2) as providing it “statutory
discretion." Barfield, 259 S.E.2d at 544.
In petitioner's case, the dissenter thought it was time
that the court advise the bar “the manner in which it con-
ducts its review." 292 S.E.2d at 242. He, joined by two
others, 242 S.E.2d at 229-30, believed the court should com-
pare each death penalty with cases which have been reviewed
by the court "whether the jury recommended death or life
imprisonment. © Ibid. In two affirmances since
petitioner's, some passing reference has been given to other
affirmed death penalty cases. State v. Williams, N.C.
, 292 S.EL2d 243, 263-64 (1982) (citing all affirmed
death cases), and State v. Smith, N.C. _» 292 S.E.2d
264, 276-77 (1982) (citing two affirmed death cases).
Later, in State v. Brown, N.C. _» 293 S.E.2d 569
(1982), the Court noted that it has not said what group of
cases it looks to for its comparisons, 293 S.E.2d at 590,
and proceeded “to conclude that the sentence is not dispro-
portionate or excessive considering both the crime and the
defendant" without reference to any other case. 293 S.E.2da
at 591.
Thus, the North Carolina Supreme Court has now affirmed
ten death sentences without any semblance of proportionate
review even to other death penalty verdicts. The only
attempt at such review was in one case, by a dissenting
Justice. State v. Rook, supra, 283 S.E.2d /58-6).
12 Woodson v. North Carolina, 428 U.S. 280 (1976).
13. The three required findings were:
"“(1) that one or more statutory aggravating cir-
cumstances existed; (2) that the aggravating cir-
cumstances were substantial enough to warrant the
+S.E.2d at 227. (Emphasis in original). Petitioner argued
'
that these instructions violated|.the statute.14 He
Footnote 13 concluded:
death penalty; and (3) hee the aggravating cir-
cumstances outweighe2d the mitigating nh. nlp
beyond a reasonable doubt." 292 S.E.2d at 227.
See N.C. Gen. Stat. § 15A-2000(c)(1), (2) and (3)
quoted in footnote 14, infra. A
14 The relevent portions of the statute are:
(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 deli-
beration in determining sentence. In all cases in
which the death penalty may be authorized, the
judge shall incluce in his instructions to the jury
that it must consider ‘any aggravating circumstance
or circumstances or mitigating circumstance or cir-
cumstances from the lists provided in subsections
(3) and (f) which may be supported by the evidence,
and shall furnish to the jury & written list of
issues relating to such aggravating or mitigating
circumstance or circumstances. 3
After hearing the eVidence, argument of
counsel, and instructioné of the court, fhe jury
shall deliberate and render a sentence récommen-
dation to the court, based upon the following
matters:
(1) Whether any sufficient aggravating cir-
cumstance or circumstances as enumerated
in subsection (3) exist;
(2) Whether any sufficient mitigating cir-
cumstance or circumstances as enumerated
in subsection (f), which outweigh the
aggravating circumstance or circumstances
found, exist; and
.
(3) Based on these considerations, whether
the defendant shduld be sentenced to
death or to imprisonment in thé State's
prison for life. oe,
The sentence recommendation must be agreed
upon by a unanimous vote of the 12 jurorg. Upon
delivery of the sentence recommendation by the
foreman of the jury, thé jury shall be individually
polled to establish whether each juror concurs and
agrees to the sentence recommendation returned.
If the jury cannot, within a reasonable time,
unanimously agree to its sentence 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 jury cannot agree unanimously to its sentence
recommendation.
(c) Findings in Support of Sentence of Death.---
When the jury recommends a sentence of death, the fore-
man of the jury shall sign a writing on behalf of the
jury which writing shall show:
oParey® Pag
¢ contended that the three jury findings ard necessary, but
insufficient, to support a death verdict; that the statute
required that the jury still make the final ul timate ere
whether petitioner should be sentenced to die or to life
‘imprisonment; and that therefore tha ‘crucial issue in his
case had been withdrawn from his jury by ‘the judge's charge.
The North Carolina Supreme Court rejected petitioner's
argument based on its belief that otherwise the jury would
be permitted “to exercise unbridled discretion . . .," 292
S.E.2d at 227, prohibited by Furman v. Georgia, 408 U.S. 238
(1972).
Justice Exum, in dissent on this point, put the issue
clearly:
I find myself, first, in strong disagreement with
the majority on an extremely important new question
dealing with the construction of our death penalty
statute. The majority holds, after somewhat cursory
treatment and a bare-bones anaylsis, that under the
statute, G.S. 15A-2000, if the jury finds: (1) the
existence of one or more statutory aggravating
circumstances, (2) that the aggravating circupstance(s)
so found are sufficiently substantial to call for the
death penalty and (3) the pegravating circumstance(s)
outweigh the mitigating circumstances, then the jury
must return the death penalty. Nowhere, of course, does
the statute so provide. The majority construes the sta-
tute in this way on the sole ground that otherwise the
statute would be subject to the constitutional attack
that a jury could decide between life and death in its
unbridled discretion. Yet decisions of the United
States Supreme Court, none of which are mentioned in the
Footnote 14 concluded:
(1) The statutory aggravating circumstance or
circumstances which the jury finds beyond
a reasonable doubt; and
(2) That the stagutory aggravating cir-
- cumstance 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 cir-
cumstances are insufficient to outweigh
the aggravating circumstance or cir-
cumstances found.
N.C. Gen. Stat. §$15A-2000(b) and (c).
cae |
h
Pie oe | © t
majority's discussion, !15) have made it abundantly clear
that the majority's interpretation is not constitution-
ally required. (Emphasis in origral).
292 S.E.2d at 230. Justice Exum, finding no barrier in this
Court's death tyes decisions to the construction of the
statute urged by petitioner, tbroceeded “'to ascertain the
intent of the legislature,'” 292 S.E.2d at 230, and
concluded that the jury members should be “told that if they
answer the crucial issues affirmatively and unanimously,
‘you may, although you need not, recommend that the defen-
dant be sentenced to death,'", 292 S.E.2d at 236, an instruc-
tion which had been "recommended by the Superior Court
Judges Pattern Jury Instruction Committee in May 1979,"
ibid, but which was replaced in May 1980 after State v.
Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979), by the language
used by the judge at Yetitioner's trial.
Since the North Carolina court has interpreted its sta-
tute "as it did because it felt under compulsion of federal
law as enunciated by this court. . .," Missouri ex rel.
Southern R. Co. v. Mayfield, {340 U.S. 1, 5 (1950), a federal
question is presented for review. Ibid. State courts are,
of course, free to interpret their statutes "solely as a
matter of [local] law." Zacchini v. Scripps~Howard
Broadcasting Co., 433 U.S. 562, 568 (1977). However, when a
“reading of a whole opinion shows [that the state court
15 The statement that none ud take Court's decisions are
“mentioned in the majority's decision” may be somewhat
misleading. The majority had said'ithat “defendant's conten-
tion was implicitly answered in State v. Goodman, 298 N.C. 1,
257 S.E.2d 569 (1979) . . ." and then quoted frqm Good: Goodman
including the following:
The exercise of such unbridled discretion by the jury
under the court's instructions would be contrary to the
rules of Furman and the cases which have followed it.
Id. at 35, 257 S.E.2d at 590.
292 S.E.2d at 227. Thus, the court's holding in this case
was specifically grounded -- albeit within a quote -- upon
its interpretation of this Court's Eighth Amendment
decisions.
- 49 - 4
r Kiaiaadera ms 53
e *e e €) O ¢
, ruled) not as a matter of statutory construction, but
because it thought the Federal Constitution required such
action," Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109,
120 (1924), then a federal question is presented for review
by this Court. State Tax Commission v. Van Cott, 306 U.S.
511, 514 (1939). Moreover, a federal question is also pre-
sented if the State court decision rests upon both state and
federal law but "these two grounds are so interwoven that
{this Court is] unable to conclude that the judgment rests
upon an independent interpretation of the State law." Ibid.
Furthermore, a federal question remains when "doubt" exists
as to whether the State court "did not deem itself bound" by
the federal considerations, Missouri ex rel. Southern R. Co.
v. Mayfield, supra, or where the decision “might have been
decided differently if the court below had felt free, under
{this Court's) decisions, to do so." Perkins v. Bengbet
Consol. Mining Co., 342 U.S. 437, 443 (1951); United Air
Lines v. Mahin, 410 U.S. 623, 632 (1973). See% also
Delaware v. Prouse, 440 U.S. 648, 653 (1979). n
There is no doubt here that the North Carolina Supreme
Court adopted a construction of its statute as it did
because it “deem[ed]) itself bound," Missouri ex a
Southern R. Co. v. Mayfield, 340 U.S. at 4, by “'the rules
of Furman [v. Georgia, 408 U.S. 238) and thle cases which
have followed it.'" 292 S.E.2d at 227.
It was expected by the litigants below that this
“extremely important new question dealing with the construc-
tion of our death penalty statute, 292 S.E.2d at 230 (Exum,
J. dissenting), would be controlled by the court's interpre-
‘originated from language in the
tation of Furman. The issue
court's decision in State v. Goodman, 298 N.C. 1, 257 8.E.2¢
569 (1979). There the jury had been instructed that if it
- sol. \i
Phys areeaay soda ar
iar
, answered the three statutorily required “issues affir-
matively and unanimously, it ‘may then recommend the death
penalty.' (R. at 185)." 292'S.E.2d at 233 (Exum, J
dissenting). (Emphasis in original). It had jnot been
instructed, as was petitioner's jury,» that after making
those findings it was then date boned to |jyecommend death.
Goodman argued on appeal that there vatabay _ have Me +4 further
instructions that the jury, “'had the option of returning a
recommendation of life imprisonment even if agevadation cin-
cumstances were found to outweigh mitigating si kealstnsie
Brief for Defendant Appellant at 15-16." Ibid. The court
rejected that argument specifically relying upon its
understanding of Furman. The Court held that to adopt
Goodman's proposed instructions, i
would be to revert to a eR i i ceadan by arbitrariness
and caprice. The exercise of such unbridled discretion
by the jury under the court's instruction would be
contrary to the rules of Furman and the cases which have
followed it.
298 N.C. at 35, 257 S.E.2d at 590.
As noted above, prior to Goodman, the North Carolina
Pattern Jury Instructions promulgated by a committee of the
Conference of Superior Court Judges had savined trial judges
to instruct the jury that it "“'may although it need not,
‘ recommend that the defendant be i ai to death, '" 292
8.E.2d at 232 (Exum, J. dissenting), upon making. the
statutory findings. Such instructions “or a variation of
them" were given “in a large number of death penalty
cases."16 In some case, where jurors were so instructed,
defendants received life sentences notwithstanding affir-
mative answers to the three issues. Id. at 234 n.4.
16 Many such cases are listed at 292 S.E.2d at 232 n.3
(Exum, J. dissenting).
-~ 51 -
oy ae | eo
y In reliance upon Goodman, the Pattern Jyry Instructions
were changed in May 1980 to impose a “duty to recommend that
the defendant be sentenced to death," id. at 233, if the
necessary abet aha were made in sin of the State.
- In the North Carolina Supreme Court, petitioner not only
advanced arguments in support of his contention that the
General Assembly had intended that jurors be permitted to
recommend life imprisonment notwithstanding findings of
aggravating circumstances sufficient to call for the imposi-
tion of the death penalty which outweighed mitigating
circumstances; he also sought to respond to the concerns
expressed by the court in Goodman that such a construction
might run afoul of the prohibitions against unbridled jury
discretion. i!
The State, in its brief, chose to ignore all of
petitioner's traditional arguments regarding legislative
intent. The court had pveviously canvassed the legal and
legislative history of the ‘nee enactment and concluded that
the General Assembly had, even more ‘san the legislators of
Georgia and Florida, borrowed jetuoeiiehe from the Model
Penal Code (MPC). State v. Johnson I, 298 N.C. 47, 56-63,
257 S.E.2d 597, 606-610 (1979).
The North Carolina statute follows jboth in broad outline
and in detail the MPC even more closely than did the
statutes of Georgia and Florida. This is appropriate
inasmuch as the concerns to which the MPC was addressed
were the same as those considered controlling in the
leading opinions of the United States Supreme Court in
the cases discussed abov
298 N.C. at 62-63. werent sherecare, argued that since
under the models for the North Carolina statute, which had
been approved by this Court, juries are free to recommend
life regardless of any subsidiary findings, see Proffitt v.
Florida, 428 U.S. 242, 248; cia v. Georgia, 428 U.S. 153,
165-166, 207; MPC, Section 210.6(2)} such a condtruction of
bf
=e
TN scl O . C
, the North Carolina statute was intended by the Gene}
Assembly. The State's brief had no answer to eae
arguments. Y) ' ¥
The total thrust of the State's brief was Ynat
petitioner's Seahtraet ion would be unconstitutional. Brief
' for the State, pp. 67-72. “If the jury were allowed to make
the further decision requested by the defendant, the jury
would be allowed to engage in the very type of unbridled
discretion which Furman simply does not allow." 1a. at 72.
The State prevailed below on exactly the andl it had }
advanced. The majority held that petitioner's construction
would result in “unbridled” jury discretion allowing the
jury “arbitrarily or capriciously [to] impose or réject a
sentence of death.” 292 S.E.2d at 227 (emphasis in }
Original). The opinion on this point concluded with the
quotation from Goodman that “'The exercise of nds tabettied
discretion by the jury under the court's instruction would be
contrary to the rules of Furman and the cases which have
followed it.'"17 Ibid.
‘
fe met ee ee ee oe ee ee
17 The Court's full treatment of petitioner's assignment
of error was as follows:
Both the prosecutor and the trial court advised the
jury that it had a duty to recommend a sentence of death
if it found three things: (1) that one or more statu-
tory aggravating circumsancesivexisted; (2) that the
aggravating circumstances were substantial enough to
warrant the death penalty; and (3) that the aggravating
circumstances outweighed the mitigating circumstances
beyond a reasonable doubt. On the other hand, the jury
was also advised that it had the duty to recommend a
sentence of life imprisonment if it did not find any one
of those three things. These directions to the jury
were based upon the stautory directions to the jury were
based upon the statutory iteria set forth in G.S.
15A-2000(b) and (c) and conformed to the WG. Criminal
Pattern Jury Instructions 150.10 (1980).
Nevertheless, defendaht\ assigns error to the
foregoing on the basis that such instructions
“prejudically withdrew from the jury its final option
+ « « to recommend a life sentence nothwithstandng its
earlier findings.” Defendant's Brief at 75. This
assignment lacks merit.
- sfl-
fee te ie” ; Ly .
‘i:
A reading of the “opinion as a whole,” State Tax
Commission v. Van Cott, supra, shows that the "ma jority
construe[d]) the statute in this way on the sole’ ground that
otherwise the statute would be subject .to constitutional
““attack™that a jury could decid! between life and death in
its unbridled discretion." 292] S.E.2d at i (Exum, J.
dissenting). At the very leas "([gliving the opinion of
the Supreme Court of [North Carolina] a scope most favorable
to reliance on a non-federal watt doubt still remains
q
— —=
Footnote 17 concluded:
The jury had no such option to exercise unbridled
discretion and return a sentencing verdict wholly incon-
sistent with the findings it made pursuant to G.S,.
15A--2000(c). The jury may not arbitrarily or capri-
ciously impose or reject a sentence of death. Instead,
the jury may only exercise guided discretion in making ,
the underlying findings required for a recommendation of
the death penalty within the "carefully defined set of
statutory criteria that allow them to take into account
the nature of the crime and the character of the
accused." State v. Johnson [I], 298 N.C. 47, 63, 257 S.E.2d
597, 610 (1979); see State v. Barfield, 298 N.C. 306,
349-52, 259 S.E.2d 510, 541-43 (1979), cert. denied, 448
U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980).
Moreover, defendant's contention was implicitly answered
in State v. Goodman, 298 N.C. 1, 257 8.E.2d 569 (1979),
in which this Court overruled an assignment of error
alleging that the trial court had erred in failing to
instruct the jury that it could still recommend life
imprisonment even though it found that the aggravating
circumstances outweighed the mitigating ones. Justice
Britt, speaking for the Court in Goodman, explained
that:
{1]t would be improper to instruct the jury that
they may, as defendant suggests, disregard the pro-
cedure outlined by the legislature and impose the
sanction of death at their own whim. To do so
would be to revert to a system pervaded by
arbitrariness and caprice. The exercise of such
‘ unbridled discretion by the jury under the court's
, instruction would be contrary to the rules of
Furman [v. Georgia, 408 U.S. 238, 92 8.Ct. 2726, 33
d 346) and the cases which have followed it.
, P
Id. at 35, 257 S.E.2d at 590. For these reasons, we
hold that the jury was correctly informed that it had a
duty to recommnd a sentence of death if it made the
three findings necessary to support such a sentence
under G.S. 15A-2000(c).17 (Emphases in original; foot-
notes omitted). |
+ ene ©
j
, whether that court did not deem itself bound:[to rule as it
did] by its view of the demands of [this Court's] decisions
+ « e+" Missouri ex rel. Southern R. Co. v. Mayfield,
supra. Accordingly, an important federal question emerges.
Moreover, "[t]}he possibility that the state court might have
' reached the same conclusion if it had decided the question |
purely as a matter of state does not create an adequate and
independent state ground that relieves this court of the
necessity of considering the federal question." United Air
Lines v. Mahin, 410 U.S. 623, 630-31 (1973). |
The federal question presented is a critical one for
which state courts and legislatures “deserve the clearest
guidance that the Court can provide." Lockett v. Ohio, 438
U.S. 586, 602 (1978). It is whether a state procedure which
requires, for any capital jury verdict three separate find-
ings regarding statutorily defined aggravating circumtances,
but would leave to the jury finally "to dispense mercy on
the basis of factors too intangible to write into a statute
. s+)" Gregg ve Georgia 428 U.S. 153, 222 (Opinion of
White, J.), is “consistent and principled but also humane
and sensible as to uniqueness of the individual,” Eddings v.
Oklahoma, _ U.S. _—,___, - 102 S.Ct. 869, 874, 71 L.ra tba,
1, 8 (1982), or allows unbridled discretion condemned by
Purmen.
Petitioner had thought that it was clear that the
extent of jury discretion which would remain if. the North
Carolina statute were construed as he contended the legisla-
ture intended would not be “capricious” in a constitutional
sense under Furman, but instead would be "guided" as
required by Gregg. That seemed to him to be the holding of
Gregg- See, 428 U.S. at 199, 203 (prevailing Opinion); id.
at 199 (Opinion of White, J. joined by the chlet Justice and
s ¥ . a i
Rehnquist, J.). Whatever the holding of Gregg, the division
of the court below demonstrates that “confusion,” Lockett,
438 U.S. at 599, persists as to what satisfies both Eighth
‘Amendment procedural commands “of measured consistent appli-
cation and fairness to the accused." Eddings v. Oklahoma,
___ U.S. __, at 102 S.Ct. at 847, 71 L.Ed.2d at 8 (1982).
If the majority below is correct, then this Court should
so declare since, as pointed out by Justice Exum, statutes
previously before this Court from other States would almost
certainly be unconstitutional under Furman. 292 S.E.2d at
234-36. If, on the other hand, Justice Exum's conclusion
that “the majority's interpretation is not constitutionally
required,” 292 S.E£.2d at 230, then this Court “should so
declare, leaving the State court free to decide the...
issue solely as a matter of [North Carolina) law." Zacchini
v. Screpps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977);
see, also, Delaware v. Prouse, supra; United Air Lines v.
a
Mahin, supra; Perkins v. Benguet Consol. Mining Co., supra;
rel. Southern R. Co. v. Mayfield, supra; State
Tax Commission v. Van Cott, supra; Red Cross v. Atlantic
Fruit Co-, supra.
If the decision below remains uncorrected, capital
defendants will face trial in North Carolina under a con-
siderably more mandatory statute than the General Assembly
may have intended. Moreover, the decision below stands as a
bar to any revision of the statute to permit a greater
measure of jury discretion as long as the General Assembly
desires to maintain a constitutional statute. See, Woodson,
428 U.S. at 300. Accordingly, this Court should grant
certiorari in order to “remand the case to avoid the risk of
‘an af‘firmance of a decision which might have been decided
differently if the court below had felt free, under [this
SGA ~y Les
- Court's) decisions, to do so.' Perkins v. Benguet Consol.
Mining Co., 342 U.S. at 443." United Air Lines v. Mahin,
410 U.S. at 632. j "
: |
CONCLUSION
For the foregoing reasons, the writ of certiorari shold
be granted. ‘
Dated: August 31, 1982.
Respectfully submitted,
/
(te, Sho
AKO
dam Stein ‘
Appellate Defender
Office of the Appellate Defender
Post Office Box 1070
Raleigh, North Carolina 27602
(919) 733-9490
‘
Ann Petersen ‘
Assistant Appellate Defender
\
ATTORNEYS FOR PETITIONER
- 57 - ,
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.