Appendix — North Carolina v. Harbison
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85-1337 a om =>
Supreme Court, U.S.
IN THE FEB 8 1986
Supreme Court of the United Strtegevo <
OCTOBER TERM 1985
STATE OF NORTH CAROLINA,
Petitioner,
7s
WILLIAM HARBISON, JR.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE NORTH CAROLINA SUPREME COURT
APPENDIX
LACY H. THORNBURG
Attorney General of
North Carolina
Barry S. McNeill
Assistant Attorney General
Lucien Capone III
Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, N.C. 27602
Telephone: (919) 733-7387
ATTORNEYS FOR PETITIONER
AST SER RR GSE RLE ERED CSET TLIO ATT RT TIT I RON NE TT ES ETL IE, LITE CEL TOT LEY
ALPHA Gnrapuics, INc., e Wasuincton, D.C. e (202) 331-8101
TABLE OF CONTENTS
APPENDICES
OPINION OF THE NORTH CAROLINA SUPREME
COURT, State v. Harbison, 2, a
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So nen Pre re. er tS hr
JUDGMENT AND COMMITMENT-SECOND
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JUDGMENT AND COMMITMENT ASSAULT WITH
A DEADLY WEAPON INFLICTING SERIOUS
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OPINION, State v. Harbison, 293 N.C. 474, 238 S.E.2d
dh ind) PEELE TET PETE ETT CCPL EEE xinnns
JUDGMENT DENYING PETITION FOR WRIT OF
HABEAS CORPUS, Harbison v. State, A-C 83-225
CR is Sie SUE 0 6.405 Wh ewnnd odv Kew de snns coe
MOTION FOR APPROPRIATE RELIEF............
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ANSWER TO INTERROGATORIES ................
ORDER DENYING MOTION FOR APPROPRIATE
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ORDER ALLOWING PETITION FOR WRIT OF
mee Pre ereyerer er Terr rT yer ry ree Terre
TESTIMONY OF JOHN H. McMURRAY BEFORE
DISCIPLINARY HEARING COMMISSION OF THE
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Page
A-12
A-54
A 56
A 57
il
TESTIMONY OF LESLIE FARFOUR (JURY
FOREMAN) BEFORE DISCIPLINARY HEARING
COMMISSION OF THE N.C. STATE BAR .........
ORDER OF THE DISCIPLINARY HEARING
COMMISSION OF THE N.C. STATE BAR .........
MOTION IN DIMINUTION OF THE RECORD ON
APPEAL OR TO REMAND FOR AN
EVIDENTIARY REARING «oc osvecciewcessenesescs’s
ORDER DENYING MOTION IN DIMINUTION OF
THE RECORD ON APPEAL OR TO REMAND
FOR AN EVIDENTIARY HEARING................
Page
A-112
A 123
A132
A139
APPENDIX A
SUPREME COURT OF NORTH CAROLINA
No. 400PA84-Burke
[Filed: 1985 December 10]
STATE OF NORTH CAROLINA
Vv.
WILLIAM HARBISON, JR.
Appeal by the defendant from the order of Judge Claude
S. Sitton, entered June 12, 1984, in the Superior Court,
Burke County.
The defendant was convicted of second degree murder
and assault with a deadly weapon inflicting serious bodily
injury. He received a life sentence for the second degree
murder conviction and a ten year sentence for the assault
conviction. The defendant appealed the murder conviction
to the Supreme Court as a matter of right under N.C.G.S.
7A-27(a). The Supreme Court allowed the defendant's
motion to bypass the Court of Appeals on his appeal in the
assault case. The Supreme Court found no error. State v.
Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).
On May 3, 1984, the defendant filed a motion for ap-
propriate relief in the Superior Court, Burke County,
alleging that he was denied effective assistance of counsel
at his 1977 trial. On June 12, 1984, Judge Sitton denied the
defendant’s motion. On November 6, 1984, the Supreme
Court allowed the defendant’s petition for writ of certiorari
to review the Superior Court’s denial of his motion. Heard
in the Supreme Court October 16, 1985.
Lacy H. Thornburg, Attorney General, by Lucien
Capone III, Assistant Attorney General, for the State.
Adam Stein, Appellate Defender, by Malcolm Ray
Hunter, Jr., First Assistant Appellate Defender, for
the defendant-—appellant.
Mitchell, Justice.
The defendant assigns as error the trial court’s denial of
his motion for appropriate relief. He contends that during
the closing arguments to the jury during his 1977 trial, his
court appointed counsel admitted his guilt without his
consent. He argues that this was ineffective assistance of
counsel and violated his constitutional right to enter a plea
of not guilty. We conclude that the court appointed
counsel’s admission of the defendant’s guilt during the
closing arguments to the jury is per se prejudicial error.
The defendant is entitled to a new trial.
A complete review of the evidence presented at trial is
found in the opinion of this Court on the defendant’s prior
appeal. 293 N.C. 474, 238 S.E.2d 449 (1977). The State’s
evidence tended to show that the defendant, William Har-
bison, Jr., and the prosecuting witness, Danna Franklin,
had recently ended their relationship. The defendant had
once professed that if he could not have Ms. Franklin, no
man would. On the night of April 24, 1974, the defendant
followed and overtook the car in which Ms. Franklin and
the deceased, Morris Hardy, were traveling. The defendant
stopped in front of Ms. Franklin’s car, exited from his car,
and shot both of them, seriously injuring Ms. Franklin and
fatally wounding Mr. Hardy. The defendant took Ms.
Franklin to the hospital and sought an ambulance for Mr.
Hardy.
Throughout the 1977 trial, the defendant steadfastly
maintained that he acted in self-defense. John McMurray,
the court appointed attorney for the defendant, adhered to
that defense during his cross-examination of the State’s
witnesses and during his presentation of the defendant’s
evidence. During the closing arguments, James Fuller,
co-counsel, urged acquittal! on the theory of self-defense.
Mr. McMurray then made a closing argument expressing
his personal opinion that his client should not be found
innocent but should be found guilty of manslaughter. The
defendant says in his Verified Motion for appropriate relief
that Mr. McMurray made the following closing argument
without the consent of the defendant:
Ladies and Gentlemen of the Jury, 1 know some
of you and have had dealings with some of you. I
know that you want to leave here with a clear
conscious [sic.] and I want to leave here also with
a clear conscious [sic.]. | have my opinion as to
what happened on that April night, and I don’t
feel that William should be found innocent. |
think he should do some time to think about
what he has done. I think you should find him
guilty of manslaughter and not first degree.
Before addressing the defendant’s assignment of error,
this Court must address the procedural issues raised by the
State. First, the State asserts that the defendant failed to
raise this issue during the direct appeal of his conviction
and thereby waived his right to raise it now. Assuming
arguendo that the State is correct, we choose nevertheless
to consider this issue under our power of discretionary
review granted by N.C.G.S. § 7A-31 and § ISA-1446.
Second, the State asserts that no transcript of the closing
argument was made and that this failure requires dismissal
of the appeal. Strate v. Sanders, 280 N.C. 67, 185 S.E.2d
137 (1971). We do not agree. The State has never sug-
gested that the defendant has mischaracterized Mr.
McMurray’s argument. The trial court based its denial of
the defendant’s motion on the closing argument as con-
tained in the motion. In verified answers to the inter-
rogatories submitted with the motion, Mr. Fuller, the
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defendant’s co—counsel, also set forth the substance of Mr.
McMurray’s closing argument during the 1977 trial. All
such documents and matters were parts of the record on
appeal. Therefore, the argument by Mr. McMurray was
preserved in the record in a form adequate to permit ap-
pellate review of the defendant’s assignment.
Turning to the merits of this appeal, the defendant con-
tends that his counsel’s admission of his guilt and plea for a
manslaughter conviction constituted ineffective assistance
of counsel in violation of his right to a fair trial under the
Sixth and Fourteenth Amendments to the Constitution of
the United States. The test for resolving claims of ineffec-
tive assistance of counsel was recently articulated by this
Court and by the Supreme Court of the United States. In
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), this
Court adopted the Supreme Court’s language in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), and enunciated the following two-part test:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed
by the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting
Strickland, 466 U.S. at ___, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693).
The defendant cites several cases in support of the
proposition that a counsel’s admission of his client’s guilt,
without the client’s knowing consent and despite the
client’s plea of not guilty, constitutes ineffective assistance
of counsel. In Wiley v. Sowders, 647 F.2d 642 (6th Cir.
1981), the defendant’s lawyer admitted his client’s guilt and
pled for mercy. The court held the defendant was deprived
of his Sixth Amendment right to effective assistance when
his counsel admitted guilt without first obtaining the de-
fendant’s consent to this trial tactic. See also, King v.
Strickland, 748 F.2d 1462 (lith Cir. 1984); Francis v.
Spraggins, 720 F.2d 1190 (11th Cir. 1983); Young v. Zant,
677 F.2d 792 (11th Cir. 1982); Commonwealth v. Lane, 476
Pa. 258, 382 A.2d 460 (1978). Although we find such
authority persuasive, we conclude that the defendant in the
present case need not show any specific prejudice in order
to establish his right to a new trial due to ineffective as-
sistance of counsel.
Although this Court still adheres to the application of
the Strickland test in claims of ineffective assistance of
counsel, there exist “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect
in a particular case is unjustified.” United States v. Cronic,
466 U.S. 648, , 104.S. Ct. 2039, 2047, 80 L. Ed. 2d 657,
667 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court has
presumed prejudice in various Sixth Amendment cases.
That Court has, for example, “uniformly found con-
stitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assist-
ing the accused during a critical stage of the proceeding.”
Cronic, 466 U.S. at , 104 S. Ct. at 2047, 80 L. Ed. 2d at
688, n.25. See, e.g., Geders v. United States, 425 U.S. 80,
96 S. Ct. 1330, 47 L. Ed. 2d 592 (1975) (defense counsel was
not allowed to make closing argument); Cuyler v. Sullivan,
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)
(prejudice presumed when counsel affected by actual con-
flict of interest). Likewise, when counsel to the surprise of
his client admits his client’s guilt, the harm is so likely and
SO apparent that the issue of prejudice need not be
addressed.
A-6
A defendant’s right to plead “not guilty” has been care-
fully guarded by the courts. See Wiley v. Sowders, 647
F.2d 642 (6th Cir. 1981). When a defendant enters a plea of
“not guilty”, he preserves two fundamental rights. First, he
preserves the right to a fair trial as provided by the Sixth
Amendment. Second, he preserves the right to hold the
government to proof beyond a reasonable doubt. Wiley,
647 F.2d at 650.
A plea decision must be made exclusively by the de-
fendant. “A plea of guilty or no contest involves the waiver
of various fundamental rights such as the privilege against
self—-incrimination, the right of confrontation and the right
to trial by jury.” State v. Sinclair, 301 N.C. 193, 197, 270
S.E.2d 418, 421 (1980). Because of the gravity of the con-
sequences, a decision to plead guilty must be made know-
ingly and voluntarily by the defendant after full appraisal
of the consequences. Boykin v. Alabama, 395 U.S. 238, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969). N.C.G.S. § ISA-1011
through § ISA-1026; State v. Sinclair, 301 N.C. 193, 270
S.E.2d 418 (1980).
This Court is cognizant of situations where the evidence
is so overwhelming that a plea of guilty is the best trial
strategy. However, the gravity of the consequences de-
mands that the decision to plead guilty remain in the
defendant’s hands. When counsel admits his client’s guilt
without first obtaining the client’s consent, the client's
rights to a fair trial and to put the State to the burden of
proof are completely swept away. The practical effect is the
same as if counsel had entered a plea of guilty without the
client’s consent. Counsel in such situations denies the
client’s right to have the issue of guilt or innocence decided
by a jury. Wiley, 647 F.2d at 649-50.
For the foregoing reasons, we conclude that ineffective
assistance of counsel, per se in violation of the Sixth
Amendment, has been established in every criminal case in
which the defendant’s counsel admits the defendant’s guilt
to the jury without the defendant’s consent. Accordingly,
we must arrest the judgments against the defendant for
murder and assault and remand these matters to the
Superior Court, Burke County, with instructions to that
court to award the defendant a new trial.
JUDGMENTS ARRESTED; REMANDED FOR NEW TRIAL.
A-8
APPENDIX B
STATE OF NORTH CAROLINA
COUNTY OF BURKE
In The General Court of Justice
Superior Court Division
June Session, 1976
THE STATE OF NORTH CAROLINA
Vv.
WILLIAM HARBISON, JPR.
Defendant
INDICTMENT— MURDER
The Jurors For The State Upon Their Oath Do Present,
That William Harbison, Jr. late of the William Harbison,
late of the County of Burke on the 25th day of April 1976,
with force and arms, at and in the said County, feloniously,
wilfully and with premeditation and deliberation and of his
malice aforethought, did kill and murder Morse Garfield
Hardy contrary to the form of the statute in such case
made and provided, and against the peace and dignity of
the State.
/s/ J. Laird Jacobs, Jr.
Solicitor
Witnesses:
James Pruett, BCSD John Suttle, SBI
x Sam Williams, BCSD Bruce Allen, SBI
Stan Jenkins, BCSD
x John Devitt, BCSD
Those marked X sworn by the undersigned foreman,
and examined before the Grand Jury, and this bill found to
be A True Bill.
“This finding of a True Bill of Indictment is concurred in
by 16 members of the Grand Jury”.
/s/ H. C. Bristol, Jr.
Foreman Grand Jury
STATE OF NORTH CAROLINA
COUNTY OF BURKE
In The General Court of Justice
Superior Court Division
June Session, 1976
THE STATE OF NORTH CAROLINA
iy,
WILLIAM HARBISON, JR.
Defendant
INDICTMENT
ASSAULT WITH INTENT TO KILL
INFLICTING SERIOUS INJURY
The Jurors For The State Upon Their Oath Present,
That William Harbison, Jr. late of the County of Burke on
the 25th day of April 1976, with force and arms, at and in
the County aforesaid, did, unlawfully, wilfully and feloni-
ously assault Dannah Yvonne Franklin with a certain
deadly weapon, to wit: A Gun with the felonious intent to
kill and murder the said Dannah Yvonne Franklin
inflicting serious injuries, not resulting in death, upon the
said Dannah Yvonne Franklin to wit: Firing a Shot into
her Head and Putting out an Eye against the form of the
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Statute in such case, made and provided and against the
peace and dignity of the State.
/s/ J. Laird Jacobs, Jr.
Solicitor
Witnesses:
James Pruett, BCSD
x Sam Williams, BCSD
Those marked X sworn by the undersigned foreman, and
examined before the Grand Jury, and this bill found To Be
A True Bill.
“This finding of a True Bill of Indictment is concurred in
by 16 members of the Grand Jury”.
/s/ H. C. Bristol, Jr.
Foreman Grand Jury
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APPENDIX C
JUDGMENT AND COMMITMENT
(76CR3865)
In open court, the defendant appeared for trial upon the
charge or charge of First Degree Murder and thereupon
entered a plea of not guilty.
Having been found by a jury guilty of the offense of
Second degree Murder which is a violation of and of the
grade of Felony.
It is Adjudged that the defendant be imprisoned for the
‘term of his natural life in the Central Prison in Raleigh.
It is Ordered that the Clerk deliver two certified copies of
this judgment and Commitment tc the Sheriff or other
qualified officer and that said officer cause the defendant
to be delivered, with such copies as commitment authority,
to the appropriate official of the State Department of
Correction.
This 4th day of September, 1976.
/s/ John R. Friday
Presiding Judge
Attorney for Defendant: John H. McMurray & James C.
Fuller, Jr.
Attorney for the State: Donald E. Greene & J. Laird
Jacob, Jr.
|
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APPENDIX D
JUDGMENT AND COMMITMENT
(86CR3682)
In open court, the defendant appeared for trial upon the
charge or charges of Assault with a deadly weapon with
intent to kill inflicting serious bodily injury and thereupon
entered a plea of not guilty.
Having been found by a jury guilty of the offense of
Assault with a deadly weapon inflicting serious bodily
injury which is a violation of and of the grade of Felony.
It is Adjudged that the defendant be imprisoned for the
term of ten (10) years in the common jail of Burke County
to be assigned to the State Department of Correction.
It is Ordered that the Clerk deliver two certified copies of
this judgment and Commitment to the Sheriff or other
qualified officer and that said officer cause the defendant
to be delivered, with such copies as commitment authority,
to the appropriate official of the State Department of
Correction.
This 4th day of September, 1976.
/s/ John R. Friday
Presiding Judge
Attorney for Defendant: John H. McMurray & James C.
Fuller, Jr.
Attorney for the State: Donald E. Greene & J. Laird
Jacob, Jr.
APPENDIX E
STATE OF NORTH CAROLINA
V.
WILLIAM HARBISON, JR.
No. |
(Filed 11 November 1977)
1. Constitutional Law §60—reasonable opportunity to
show systematic exclusion of blacks from jury
A defendant must be allowed a reasonable time and
opportunity to inquire into and present evidence
regarding the alleged systematic exclusion of Negroes
because of their race from serving on the grand or petit
jury in his case. Whether he was afforded reasonable
time and opportunity must be determined from the facts
in each particular case.
. Constitutional Law §60—denial of continuance —
opportunity to show systematic exclusion from jury
Defendant was not denied his constitutional right to a
reasonable time and opportunity to investigate the
possibility of systematic excl.sion of blacks from the
petit jury by the denial of his motion for continuance
made on the day defendant’s case was called for trial
where the only evidence urged in support of the motion
was the fact that sixty prospective jurors were drawn
from the box and the thirty-two of them who reported
for jury duty were ail white; defendant was represented
by counsel at least four months before trial; the names ~
of the sixty prospective jurors were publicly known for
fifty-five days prior to the trial; and defense counsel was
thus afforded a reasonable time and opportunity prior
|
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to the trial to inquire into the race of each juror, the
composition of the jury box, the procedures for drawing
the jury, the race and number of jurors not summoned
by the sheriff and the reason therefor, the race and
number of jurors excused and the practices and
procedures employed by the chief district judge when
passing upon excuses.
3. Criminal Law § 42.2 — real evidence — identity and un-
changed condition
Obejcts offered as having played an actual, direct role
in the incident giving rise to the trial are denoted “real
evidence.” In order to be admissible, such evidence
must be identified as the same object involved in the
incident and it must be shown that the object has
undergone no material change in its condition since the
incident.
4. Criminal Law § 42.2 —identity and unchanged condi-
tion of evidence — discretion of court
The trial judge possesses and must exercise a sound
discretion in determining the standard of certainty
required to show that an object offered is the same as
the object involved in the incident giving rise to the trial
and that the object is in an unchanged condition.
5. Criminal Law §§ 42.5, 42.6 — exclusion of tire — failure
to show identity and unchanged condition
The trial court did not err in the exclusion of a tire,
offered for the purpose of showing the location of bullet
damage to the tire, on the ground that the identity and
unchanged condition of the tire had not been
established where officers who first examined the tire
testified that such examination revealed no holes in the
tire, and bullets were not discovered in the tire until
reexamination of the tire three months after it had been
released from police custody; furthermore, the State
was not prohibited from objecting to admission of the
tire because police officers agents of the State —
caused the breakdown in the chain of custody by
releasing the tire to its owner where there was no
evidence that officers knew the tire had been fired into
at the time they released it from custody or that
defendant’s counsel had informed anyone the tire would
be material to defendant’s case.
6. Homicide § 31.7 — second degree murder — imposition
of life imprisonment
The trial judge did not act arbitrarily and capriciously
in sentencing defendant to life imprisonment for second
degree murder since the punishment is within statutory
limits, G.S. 14-17, and is not inappropriate for the
brutal, unprovoked murder disclosed by evidence which
would have supported a verdict of first degree murder.
Justice Exum dissenting.
DEFENDANT appeals from judgements of Friday, J., 30
August 1976 Session, BURKE Superior Court.
Defendant was tried upon separate bills of indictment
charging him with the first degree murder of Morris Hardy
on 25 April 1976 and felonious assault upon Dannah
Yvonne Franklin on the same date.
The State’s evidence tends to show that defendant, a
twenty-six-year—old black man, married and the father of
two children, and Dannah Franklin, a twenty-year- old
unmarried white woman, had known each other for three
years, dated for about two years, quit dating in August
1975 but continued an occasional rendezvous on a friendly
basis. Because Miss Franklin’s father objected to the
relationship on account of the racial difference, they would
epee |
A-16
meet by prearrangement at various secluded parking places
along the road.
On 24 April 1976 Miss Franklin had been visiting Mrs.
Rena Shade, a colored friend of hers. She arrived at the
Shade home between 9 and 10 a.m. and remained until
approximately midnight. Morris Hardy, a black man,
came to the Shade home about 9:30 p.m. and remained
until approximately midnight. This was the second time
Miss Franklin had ever seen him. After watching television
and talking until approximately midnight, Miss Franklin
arose to leave and Morris Hardy asked her to take him
home. They left together in her 1968 blue Buick Electra
225. As they proceeded westward on I-40 near
Morganton, defendant drove up behind them in his 1975
white Oldsmobile Cutlass. Miss Franklin speeded up and
attempted to elude him. Defendant followed the Franklin
car for five miles from I-40 over rural paved roads and
finally onto the Morningstar Road which is unpaved.
When the Franklin car skidded into the ditch line on a stiff
curve, defendant succeeded in passing it and stopped his
vehicle partially blocking the road. He jumped out of his
car with gun in hand and came back to the Franklin
vehicle.
Miss Franklin described the events which followed in
these words: “He didn’t say anything.... He pointed it at
the window. I started to go around his car, and the angle
he pulled in front of me, I didn’t know whether I could get
past his car or not without going on up the embankment.
He, as I started around his car rolling, he shot at the left
front tire. He shot once, and then he slid his steps, and he
shot twice.... I felt the tire going down. He was midways
of the back end of his car, about three feet, maybe less
when he shot.... I seen glass bursting, and it hit me in the
face. I screamed.... Morris touched my left arm ... |
didn’t hear the fourth shot. It hit me in the back of the
A-17
head.... I went in the floor between Morris’ legs.... |
heard the fifth shot. | was praying.... I got up. Morris’
arm was laying inside on the same side of hs seat where he
was sitting. I touched his arm. | heard him breathing real
loud; and then he started groaning ... and | heard him
groan three times, or like he was drowning in his blood, or
something, and I looked up. I didn’t realize at the time that
he must have died right there.”
The State’s evidence further tends to show that
defendant got in his car and left the scene but returned
after driving about a mile. He overtook Miss Franklin who
was walking along the road looking for help. He picked
her up and repeatedly said, “I didn’t mean to do it.” She
asked him why he did it and he never did say. He drove
Miss Franklin to the hospital after examining Morris
Hardy and expressing the opinion that he was probably
dead. He threw the murder weapon under the shrubbery at
the hospital and it was later recovered by the officers.
Morris Hardy died from a gunshot wound in his back
inflicted by a bullet fired from defendant’s gun. Miss
Franklin suffered a gunshot would in the left eye resulting
in its total destruction, necessitating removal.
Defendant testified as a witness in his own behalf. On
and prior to 25 April 1976 he was employed as a
correctional officer at Western Correctional Center in
Morganton. He had known Dannah Franklin since 1972,
had dated her on weekends for two years and thereafter
continued to see her on an irregular basis until the date this
incident happened. According to defendant’s testimony,
they had a good relationship, including a_ sexual
relationship, and were quite compatible. They would call
each other by telephone, arrange a meeting time and place,
and if passing each other on the highway would blink their
lights on and off, or blow the horn, and then meet at the
agreed rendezvous spot. Sometimes, when Miss Franklin’s
|
A-18
father was not at home, defendant would pick her up at her
home.
Shortly before midnight on the night in question,
defendant recognized Dannah Franklin’s car on the
highway and she blinked her lights. Shortly thereafter the
Franklin vehicle left I-40 westbound and defendant
followed. He did not recognize the driver and could not tell
who was in the car. The Franklin car was half a mile ahead
of him as he continued to follow it. The Franklin car
proceeded onto a dirt road where the driver accelerated
rapidly, throwing gravel, and defendant proceeded to
follow it to find out why the car had not stopped. It was on
the Morningstar Road when defendant finally succeeded in
passing the car. He pulled in front of it and stopped about
thirty feet away. Although his car was sitting in the middle
of the road, it did not block the road. Defendant got out of
his car, walked back toward the Franklin car, still unable
to see who was in it, and heard a sudden acceleration.
Thinking the driver was trying to run him down, he drew
his revolver and fired twice at the left front tire.
Demonstrating what happened, defendant said: “As I was
walking back towards the car, the car accelerated, gravel
started throwing proceeding towards me. At that point, I
was scared for my life. I pulled my revolver. I fired twice at
the two front tires. The car proceeded. It kept on coming.
At that point, I was excited. I panicked. As the car kept
coming, the third shot was fired. The third shot hit the
window, the glass came out and hit me in the face, and at
the same time I was pulling the fourth and fifth rounds.”
Defendant further testified that the Franklin car ran off
the road following the shooting and he got in his car and
left. After driving about a mile he returned to the scene,
took Miss Franklin to the hospital and called the sheriff's
office to send an ambulance for Morris Hardy.
Defendant later told Detective Pruitt where to find the
murder weapon. He testified that he kept the weapon
loaded and on the console in his car at all times for “self-
protection.” He admitted that he followed the Franklin car
five or six miles but asserted he was not chasing it. He
denied getting out of the car with pistol drawn. He asserted
that no ill will existed between him and the deceased
Morris Hardy.
The jury convicted defendant of second degree murder
of Morris Hardy and of an assault with a deadly weapon
inflicting serious bodily injury on Dannah Franklin. The
court imposed a life sentence for the murder and ten year
for the felonious assault. He appealed the life sentence
directly to the Supreme Court and we allowed a motion to
by-pass the Court of Appeals in the assault case to the end
that both cases receive initial appellate review in the same
court.
Rufus L. Edmisten, Attorney General; James E.
Magner, Jr., Assistant Attorney General, for the State of
North Carolina.
James C. Fuller, Jr. and John H. McMurray, attorneys
for defendant appellant.
HUSKINS, Justice
When this case was called for trial on the morning of 30
August 1976 defendant moved for a continuance “to allow
him reasonable opportunity and time to investigate and
produce evidence, if such exists, in respect to the allegation
of racial discrimination as to the petit jury as set forth in
this mosion.” The unverified motion alleges that: (1)
Thirty-two persons had been summoned and appeared for
A-20
jury service, all of the white race and none of the Negro
race; (2) more than 10 percent of the total population of
Burke County are member of the Negro race; (3) lack of a
reasonable number of members of the black race on the
petit jury panel indicates systemic exclusion of members of
the Negro race from jury service in Burke County; and 4)
the number of Negroes, if any, on the petit jury for this
session of criminal court of Burke County was unknown to
defendant until such jurors appeared in the courtroom for
jury service.
The motion for continuance was denied. This constitutes
defendant’s first assignment of error.
The record shows that the names of sixty prospective
jurors, corresponding to numbered decals drawn from the
box, were taken from the master jury list and certified on 6
July 1976. Those names were available to the public
generally and to defense counsel particularly from and after
that date. on 30 August 1976, the date this case was called
for trial, thirty-two of the sixty prospective jurors appeared
in court ready to serve. All were members of the white race.
Of the twenty-eight persons who did not report for jury
duty, there is no evidence to show how many had died or
moved away and were not summoned due to the sheriff's
inability to locate them. There is no evidence of record to
show how many rendered an excuse and were excused
from jury duty by the chief district judge. There is nothing
in the record to indicate how many, if any, were Negroes.
The record does show that several members of the Negro
race served on the jury during the previous week.
Defendant was represented by Attorney McMurray who
was appointed on 27 April 1976 and also by Attorney
Fuller whose firm had been privately retained on a date not
shown by the record. Both are able, experienced attorneys,
and Mr. McMurray has practiced law in Burke County for
more than twenty years.
A-21
A motion for continuance is ordinarily addressed to the
sound discretion of the trial court, and its ruling thereon is
not subject to review absent abuse of discretion. State v.
Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). However, if
the motion is based on a right guaranteed by the federal
and state constitutions, it presents a question of law and the
order of the court is reviewable. State v. Baldwin, 276 N.C.
690, 174 S.E. 2d 526 (1970). Defendant urges as error
denial of his constitutional right to a reasonable time and
opportunity to inquire into and present evidence regarding
the alleged systematic exclusion of Negroes because of their
race from serving on the petit jury in his case, citing State
v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970), as
authority. For reasons which follow, we find no merit in
this contention.
Decisions both state and federal hold that: (1) a
defendant is not entitled to a proportionate number of his
race on the jury which tries him, on the venire from which
petit jurors are drawn, or even to have a representative of
his race on the jury; (2) a defendant does have the
constitutional right to be tried by a jury from which
members of his own race have not been systematically and
arbitrarily excluded; and (3) a defendant must be allowed a
reasonable time and opportunity to inquire into and
present evidence regarding the alleged systematic exclusion
of Negroes because of their race from serving on the grand
or petit jury in his case. Whether he was afforded a
reasonable time and opportunity must be determined from
the facts in each particular case. The authorities supporting
these principles are cited and discussed in State v. Spencer,
276 N.C. 535, 173 S.E. 2d 765 (1970), and State v. Cornell,
281 N.C. 20, 187 S.E. 768 (1972).
In his argument to the trial court in support of the
motion for a continuance, defense counsel stated: “As I
understand the cases, they provide that if this motion is
made, even though it’s made and the court is of the opinion
A-22
that it’s made purely for the purpose of a continuance, due
process—State v. Spencer—holds, as | understand it, that
the defendant is entitled to additional time to make that
investigation.” The statement is erroneous; counsel is
acting under a misapprehension of the law. Upon the facts
disclosed by the record in this case, defendant had “a
reasonable time and opportunity to inquire into and
present evidence regarding the alleged sytsematic exclusion
of Negroes” from serving on the petit jury in his case,
Attorney McMurray was appointed on 27 April 1976. The
sixty-member venire was drawn and made public on 6 July
1976. The case was duly calendared and thereafter called
for trial on 30 August 1976. At 11:15 a.m. that morning
defendant’s motion for a continuance was filed.
Admittedly, no investigation concerning the jury selection
process had been undertaken and no evidence had been
compiled, statistical or otherwise, tending to establish that
blacks were under-represented in the jury box or on the
jury, or that the selection procedure itself was not racially
neutral, or that for a substantial period in the past
relatively few Negroes had served on the juries of Burke
County notwithstanding a substantial Negro population
therein. The only evidence urged in support of the motion
for continuance is the naked fact that sixty prospective
jurors were drawn from the box and thirty-two of them all
white, appeared for jury duty. This fact alone does not even
Suggest a syfematic exclusion of Negroes from the petit
jury. “Even when there is ‘striking’ statistical evidence of
disparity between the ratio of the races in population and
jury service, or of the progressive elimination of potential
Negro jurors through the selection process, the courts have
considered such evidence, standing alone, insufficient to
constitute a prima facie case of systematic discrimination.
See Alexander v. Louisiana, 405 U.S. 625, 31 L.Ed. 2d
536. 92 S. Ct. 1121 (1972); Swain v. Alabama, 380 U.S.
202, 13 L.Ed. 2d 759, 85 S.Ct. 824 (1965).” State v. Brower,
289 N.C.. 644, 653, 224 S.E. 2d 551, 558-59 (1976).
A-23
It places no undue burden on defense counsel to require
them to make investigations into jury composition and
selection procedures prior to the time of trial, so long as the
time between retention or appointment of counsel, the date
the jury panel is drawn, and the date of trial is not so brief
as to make such investigation impractical. Compare State
v. Inman, 260 N.C. 311, 132 S.E. 2d 613 (1963); State v.
Perry, 248 N.C. 334, 103 S.E. 2d 404 (1958). The jury list
from which petit jurors are selected is prepared biennially,
G.S. 9-2, is a public record, G.S. 9-4, and the jury
commissioners who possess knowledge of the sources from
which the master jury list is compiled are local residents.
G.S. 9-1. Persons who wish to be excused from jury duty
must apply to the chief district judge, or another district
judge designated by him, at a publicly announced time and
place. G.S. 9-6(b). The record here shows that the name of
the sixty jurors were publicly known for fifty-five days
prior to the time the case was called for trial. This afforded
defense counsel reasonable time and opportunity to inquire
into the face of each juror, the composition of the jury box,
the procedures for drawing the jury, the race and number of
jurors not summoned by the sheriff and the reason
therefor, the race and number of jurors excused, and the
practices and procedures employed by the chief district
judge when passing upon excuses. Failure to make such
inquiry creates no constitutional right, in the name of Due
Process, to additional time for such investigation simply
because all jurors who reported for jury duty on the day
defendant’s case was called for trial were white. An
automatic continuance for such inquiries, upon motion
lodged for the first time when the case is called for trial,
would fatally disrupt every session of court.
Under the facts of this case defendant has not been
deprived of a reasonable opportunity to investigate the
“possibility” of systematic exclusion of blacks from the
petit jury. The lateness of the motion for a continuance
suggests only a natural reluctance to go to trial and affords
A-24
no basis to conclude that the trial judge abused his
discretion or violated defendant’s constitutional rights. The
motion for continuance was properly denied. Defendant’s
first assignment of error is overrulled.
On 25 April 1976 Officers Pruitt and Suttle examined
the left front tire on the 1968 Buick in which decedent’s
body had been found. The examination revealed nothing
unusual about the exterior of the tire except road damage
and the fact that it was flat. Officers Pruitt and Bruce Allen
removed the tire from the wheel, broke it down, examined
the interior and noticed nothing unusual. The tire was then
placed in the trunk of the Buick and, later that day, Officer
Pruitt advised the person having custody of the car that the
officers’ inspection had been concluded and the car could
be released to its owner John Franklin, Miss Franklin’s
father. At the time this inspection and release of the tire
took place, defendant had made no statement that he had
shot into the tire; rather, he had told Officers Pruitt and
Stan Jenkins that he had not been involved in any
shooting.
On 31 July 1976 Officer Pruitt had occasion to examine
a tire similar in make and appearance to the one he had
examined on 25 April. On this examination he discovered
two metal objects embedded in the back side of the tire.
The tire was thereupon marked for identification and
placed in the police evidence room where it remained until
trial. Officer Pruitt was of the opinion that the tire he
examined on 3! July was the same tire he had examined on
25 April. He testified, however, that his opinion was based
on Miss Franklin’s statement to him that it was the same
tire and that he himself was unable to identify it as such.
Neither Miss Franklin nor her father, the owner of the car,
were examined concerning the identity of the tire or
whether there had been any material change in its
condition since the shooting on 25 April.
A-25
Defendant sought to offer the tire in evidence, upon
objection, it was excluded by the trial judge. This ruling
constitutes defendant’s second assignment of error.
NoMa N RS PE ON ka lei A RR
Objects offered as having played an actual, direct role in
the incident giving rise to the trial are denoted “real
evidence.” McCormick, Evidence § 212 (2d ed. 1972); |
Stansbury’s North Carolina Evidence § 117, n. | (Brandis
rev. 1973). Such evidence must be identified as the same
object involved in the incident in order to be admissible.
State v. Winford, 279 N.C. 58, 181 S.E. 2d 423 (1971). It
must also be shown that since the incident in which it was
; involved the object has undergone no material change in its
condition. See McCormick supra, § 212, p. 527. See also
Hunt v. Wooten, 238 N.C. 42 76 S.E. 2d 326 (1953).
According to Professor Stansbury, when a tangible object
is offered it must be first authenticated or identified, “and
this can be done only by calling a witness, presenting the
exhibit to him and asking him if he recognizes it and, if so,
what it is.” 1 Stansbury’s North Carolina Evidence § 26
(Brandis rev. 1973).
REN wet ih nad Vaden atc nd
There are no simple standards for determining whether
an object sought to be offered in evidence has been
sufficiently identified as being the same object involved in
the incident giving rise to the trial and shown to have been
unchanged in any material respect. “No specific rules have
grown up about the authentication of chattels, chiefly
because the variety of circumstances involved are so great
that no specific rules would be suitable.” 7 Wigmore,
Evidence § 2129, at 569 (3d ed. 1940). Consequently, the
trial judge possesses and must exercise a sound discretion
in determining the standard of certainty required to show
that the object offered is the same as the object involved in
the incident giving rise to the trial and that the object
is in an unchanged condition. McCormick, supra § 212,
p. 527, at nn. 25-27. See, e.g., Walker v. Firestone Tire and
Rubber Co., 412 F.2d 60 (2d Cir. 1969).
ome
ND i ath a ie ANN OY I ms
A-26
In the present case defendant argues that the location of
bullet damage in the tire would tend to show that he was in
front of the vehicle at the time the tire was shot and thus
tend to corroborate his testimony that he first fired at the
vehicle as a defensive measure when Miss Franklin
attempted to run him down. Even so, the record shows the
trial court had before it the testimony of the officers who
examined the tire on 25 April to the effect that their
examination on that date revealed no holes in the tire.
After the tire had been excluded, Officer Pruitt testified
that even after the tire was broken down for examination
of its interior on 25 April he observed nothing unusual
about it except that is was flat. The bullets were not
discovered until reexamination of the tire three months
after it had been released from police custody. Under these
circumstances Judge Friday quite properly insisted that
defendant establish the identity and unchanged condition
of the tire before admitting it into evidence. there was not
testimony identifying the tire offered at trial. There was no
evidence of unchanged condition. Rather, testimony at
trial suggested that the examinations conducted on 25
April and 31 July (of what was alleged to have been the
Same tire) showed conflicting results. In our view Judge
Friday properly excluded the tire and the testimony
concerning examinations of it conducted on 3] July and
thereafter.
Defendant further argues, however, that since the police
officers—agents of the State—caused the breakdown in the
chain of custody, the State should not be permitted to
object to the introduction of the tire. It suffices to say that
there is no evidence indicating the officers knew the tire
had been fired into at the time they released it from custody.
Nor is there any indication that defendant’s counsel had
informed anyone the tire would be material to defendant’s
case. Neither bad faith nor negligence can be ascribed to
the officers under such circumstances, Defendant’s second
assignment of error is overruled.
Pi Ii SR NEN A ct he ey we
|
A-27
Finally, defendant contends the trial judge acted
arbitrarily and capriciously in sentencing him to life
imprisonment for second degree murder. This assignment
is overruled without discussion. The punishment is within
statutory limits, G.S. 14-17 (1975 Cum. Supp.), and not
inappropriate for the brutal, unprovoked murder and
felonious assault disclosed by evidence which would have
supported a verdict of murder in the first degree.
Prejudicial error in the trial not having been shown, the
verdicts and judgments must be upheld.
NO ERROR
Justice EXUM dissenting.
I dissent on the ground that defendant was not afforded
a reasonable opportunity to inquire into and present
evidence to support his contention that there was
systematic exclusion of people of the black race from the
petit jury that tried him. The majority recognizes the
principle that such opportunity must be given when the
defendant alleges such systematic exclusion. Its position is
that since the jury panel for the week of court at which
defendant was tried was selected some weeks before the
trial began the defendant had an opportunity to develop
such evidence as was available. He would have, the
majority says, examined the names of the 60 jurors
summoned for duty on the panel. I think the majority relies
more on theory than reality. An examination of the 60
jurors summoned for duty could not have revealed which
of those jurors would ultimately find their way into the
courtroom to form the panel from which defendant had to
select the petit trial jury. Obviously almost half of these
names were somehow culled, or for some other reason did
not apepar for jury duty on the day defendant’s case was
called for trial. It was not until defendant arrived in the
courtroom that he knew, or could have known, that the panel
from which is petit jury was to be selected contained not a
single member of his race. Faced with that circumstance |
think defendant should have been entitled to inquire into
the reasons and be given an opportunity to present
evidence on the point he raised.
“Whether the defendant can establish the alleged racial
discrimination or not, due process of law demands that he
have his day in court on this matter, and such day he does
not have unless he has a reasonable opportunity and time
to invetigate and produce his evidence, if he has any.” State
v. Perry, 248 N.C. 334, 339, 103 S.E. 2d 404 (1958); accord,
State v. Inman, 260 N.C. 311, 132 S.E. 2d 613 (1963). In
both Perry and Jnman new trials were granted under
circumstances quite similar to those presented by
defendant in this case.
APPENDIX F
IN THE
DISTRICT COURT OF THE UNITED STATES
ASHVILLE DIVISION
Civil No. A-C-83-225
[Filed December 12, 1983]
WILLIAM HARBISON, JR.,
Petitioner
V.
STATE OF NORTH CAROLINA,
Respondent
JUDGMENT
This matter having come before the court upon a
petition for writ of habeas corpus, and the issues having
been determined, as shown by a Memorandum of Decision
entered by the court simultaneously herewith;
It Is Ordered, Adjudged, And Decreed that the petition
for writ of habeas corpus be, and the same is hereby,
denied, and the action is hereby dismissed.
The Clerk is directed to certify a copy of this Judgment
and the Memorandum of Decision to the Attorney General
of North Carolina, petitioner, and petitioner’s attorneys.
This 9th day of December, 1983.
/s/ Woodrow W. Jones
Chief Judge,
United States District Court
A-30
IN THE
DISTRICT COURT OF THE UNITED STATES FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHVILLE DIVISION
Civil No. A-C-83-225
[Filed December 12, 1983]
WILLIAM HARBISON, JR.,
Petitioner
Vv.
STATE OF NORTH CAROLINA,
Respondent
MEMORANDUM OF DECISION
Petitioner, a state prisoner, seeks federal habeas corpus
relief, pursuant to Title 28, United States Code, Section
2254, claiming that he is unlawfully being held in state
custody due to the failure of the state to protect and allow .
into exculpatory evidence. In this regard, petitioner
contends:
[T]hat he fired in self defense at a car moving
toward him.. The State contended that Petitioner
committed an execution-type murder from
beside the driver’s side window after first
shooting out the tires. The tire showed
penetration marks on the flat surface or front,
rather than on the donut or side, thus
corroborating Petitioner’s version. However,
because the State’s police had broken the chain of
evidence, the State’s prosecutor objected to the
evidence and the State’s judge excluded the only
Diabetes in rasinircun
erlbieth wndeinendeienn de ee dO te. ee
A-31
evidence in existence that could—and did —
support Petitioner’s version of the events.
I. STATEMENT OF CASE
The Attorney General of North Carolina answered,
moved to dismiss, and furnished the court with numerous
documents relating to the proceedings in the state courts.
Petitioner was convicted at the August 1976 session of
the Catawba County superior Court of felonious assault
(76-CR-3685) and murder (76—-CR-3682) and was
sentenced to imprisonment for concurrent terms of life (for
murder) and ten years (for felonious assault). Petitioner
appealed his convictions to the North Carolina Supreme
Court, which court, in an opinion filed November 11, 1977,
and reported at 293 N.C. 474, found no error. At trial and
on appeal, petitioner was represented by court-appointed
counsel, John H. McMurray, and retained counsel, James
C. Fuller, Jr.
On direct appeal, petitioner presented the contentions in
the instant petition and has, therefore, exhausted his state
remedies as required by Title 28, United States Code,
Section 2254.
A summary of the evidence at trial is, as follows:
The state’s evidence showed that petitioner, a 26-year-
old black man, married and the father of two children, and
Dannah Franklin, a 20-year-old unmarried white woman,
had known each other for three years, dated for about two
years, quit dating in August 1975 but continued an
occasional rendezvous on a friendly basis. Because Miss
Franklin’s father objected to the relationship on account of
the racial difference, they would meet by prearrangement
. at various secluded parking places along the road.
i
A-32
On April 24, 1976, Miss Franklin had been visiting Mrs.
Reba Shade, a colored friend of hers. She arrived at the
Shade home between 9 and 10 a.m. and remained until
approximately midnight. Morris Hardy, a black man,
came to the Shade home about 9:30 p.m. and remained
until approximately midnight. This was the second time
Miss Franklin had ever seen him. After watching television
and talking until approximately midnight, Miss Franklin
arose to leave and Morris Hardy asked her to take him
home. They left together in her 1968 blue Buick Electra
225. As they proceeded westward on I-40 near
Morganton, petitioner drove up behind them in his 1975
white Oldsmobile Cutlass. Miss Franklin speeded up and
attempted to elude him. Petitioner followed the Franklin
car for five miles from I-40 over rural paved roads and
finally onto the Mornigstar Road, which is unpaved.
When the Franklin car skidded into the ditch line ona stiff
curve, petitioner succeeded in passing it and stopped his
vehicle partially blocking the road. He jumped out of his
car with gun in hand and came back to the Franklin
vehicle.
Miss Franklin described the events which followed in
these words:
He didn’t say anything. . .. He pointed it at the
window. I started to go around his car, and the
angle he pulled in front of me, | didn’t know
whether I could get past his car or not without
going on up the embankment. He, as I started
around his car rolling, he shot at the left front
tire. He shot once, and then he slip his steps, and
he shot twice... . I felt the tire going down. He
then raised up and shot through the window. He
was midways of the back end of his car, about
three feet, maybe less when he shot. . . . I seen
glass bursting, and it hit me in the face. |
screamed. ... Morris touched my left arm.... |
didn’t hear the fourth shot. It hit me in the back
of the head. . . . I went in the floor between
Morris’ legs. . . | heard the fifth shot. 1 was
praying. ...1 got up. Morris’ arm was laying
inside on the same side of his seat when he was
sitting. I touched his arm. I heard him breathing
real loud; and then he started groaning. . . and I
heard him groan three times, or like he was
drowning in his blood, or something, and |
looked up. I didn’t realize at the time that he must
have died right there.
The state’s evidence further showed that petitioner got in
his car and left the scene but returned after driving about a
mile. He overtook Miss Franklin, who was walking along
the road looking for help. He picked her up and repeatedly
said, “I didn’t mean to do it.” She asked him why he did it,
and he never did say. He drove Miss Franklin to the
hospital after examining Morris Hardy and expressing the
opinion that he was probably dead. He threw the murder
weapon under the shrubbery at the hospital, and it was
later recovered by the officers.
Morris Hardy died from a gunshot wound in his back
inflicted by a bullet fired from petitioner’s gun. Miss
Franklin suffered a gunshot would in the left eye resulting
in its total destruction, necessitating removal.
Petitioner testified as a witness in his own behalf. On and
prior to April 25, 1976, he was employed as a correctional
officer at Western Correctional Center in Morganton. He
had known Dannah Franklin since 1972, had dated her on
weekends for two years, and thereafter continued-to see her
on an irregular basis until the date this incident happened.
According to petitioner’s tetimony, they had a good
relationship, including a sexual relationship, and were
quite compatible. They would call each other by telephone,
arrange a meeting time and place, and if passing each other
|
A-34
on the highway would blink their lights on and off, or blow
the horn, and then meet at the agreed rendezvous spot.
Sometimes, when Miss Franklin’s father was not at home,
petitioner would pick her up at her home.
Shortly before midnight on the night in question,
petitioner recognized Dannah Franklin’s car on the
highway and she blinked her lights. Shortly thereafter, the
Franklin vehicle left 1-40 westbound and petitioner
followed. He did not recognize the driver and could not tell
who was in the car. The Franklin car was half a mile ahead
of him as he continued to follow it. The Franklin car
proceeded into a dirt road where the driver accelerated
rapidly, throwing gravel, and petitioner proceeded to
follow it to find out why the car had not stopped. It was on
the Morningstar Road when petitioner finally succeeded in
passing the car. He pulled in front of it and stopped about
30 feet away. Although his car was sitting in the middle of
the road, it did not block the road. petitioner got out of his
car, walked back toward the Franklin car, still unable to
see who was in it, and heard a sudden acceleration.
Thinking the driver was trying to run him down, he drew
his revolver and fired twice at the left front tire.
Demonstrating what happened, petitioner said: _
As I was walking back towards the car, the car
accelerated, gravel started throwing proceeding
towards me. At that point, I was scared for my
life. I pulled my revolver. I fired twice at the two
front tires. The car proceeded. It kept on
coming. At that point, I was excited. I panicked.
As the car kept coming, the third shot was fired.
The third shot hit the window, the glass came
out and hit me in the face, and at the same time |
was pulling the fourth and fifth rounds.
Petitioner further testified that the Franklin car ran off
the road following the shooting and he got in his car and
left. After driving about a mile, he returned to the scene,
4
i
;
tbe wi Ra
A-35
took Miss Franklin to the hospital and called the sheritf’s
office to send an ambulance for Morris Hardy.
Petitioner later told Detective Pruitt where to find the
murder weapon. He testified that he kept the weapon
loaded and on the console in his car at all times for “self-
protection.” He admitted that he followed the Franklin
car five or six miles but asserted he was not chasing it. He
denied getting out of the car with pistol drawn. He asserted
that no ill will existed between him and the deceased
Morris Hardy.
The petitioner bases his claim on two alternate legal
theories. The first is that the state had a duty under the
antisuppression requirements of Brady v. Maryland, 373
U.S. 83 (1963), to preserve the chain of custody with regard
to a tire because the state knew, or should have known, the
tire was valuable defense evidence, and that retitioner’s
failure to so preserve it should have excused the
requirement of showing the chain of cutsody. The second is
that the requirement of showing a chain of custody should
not have been dispensed with because of the importance of
the evidence and the lack of any likelihood of tampering
under the rationale of Chambers v. Mississippi, 410 U.S.
284 (1973).
The background with regard to the tire, both from the
standpoint of chain of custody problems and the
standpoint of its being excluded from evidence is as
follows:
The evidence of both sides showed the victims
were shot as they drove by petitioner in an
automobile on a secluded mountain, dirt road.
Petitioner claimed he had followed the victims’
car there by prearranged signal but when he
arrived, stopped and got out of his car and
approached the victims’ car, it bore down on
him. He then shot its occupants in self-defense.
A-36
(Tr. at 148, et seq.). The remaining living victim
testified that she was forced to stop at the
location after failing to elude petitioner (her
jealous ex-boyfriend) successfully, and that
petitioner shot her and the deceased as she
unsuccessfully sought to drive away. (Tr. at 115,
et seq.). The evidence of both parties, as well as
the physical evidence, showed that the victims
were assaulted through the passenger-side
window. (Tr. at 38, 39, 50, 114, 121, 135, 164,
182). The state’s evidence also showed that the left
front tire went flat after the first two shots. (Tr. at
121). Other physical evidence tended to support
the state’s version of the case as well. (Tr. at 220-
227). However, the evidence of neither party
pinpointed the particular part of the tire aimed
for, the angle of the shots, or the proximity of the
car to the petitioner when the shots were fired.
Therefore, the placement of any bullet holes in
the tire was not made particularly important by
being consistent with one express version of the
evidence or inconsistent with the other until the
cross-examination of petitioner, at which time he
asserted he fired from directly in front of the car
into the tire tread. (Tr. at 182).
The investigating officers made several inspections of the
tire. The first two were made on April 25, 1976, during the
early morning following the shootings and in the early after-
noon of the same day. The inspections revealed nothing
other than the tire being flat. (Tr. at 35, 53, 55, 208). Because
nothing was revealed, the tire, along with the car, was
released to its owner on April 25, 1976. (Tr. at 211). A tire
which was possibly the same one which was on the victims’
car, but which could not positively be identified (Tr. at 244-
245), was reclaimed on July 31, 1976, from the commercial
garage of a relative of one of the victims. (Tr. at 209, 243).
It was inspected and found at that time to contain two
A-37
metal fragments (but no entrance points) (Tr. at 238-239),
although by that time the tire was off its rim. Finally, the
tire reclaimed on July 31, 1976, was reinspected on
September | and 2, 1976. (Tr. at 237). On the last of those
occasions (the record being unclear as to the former), this
was done in the presence of petitioner’s lawyer, Mr. Fuller,
and his investigator. They pointed to some damage, similar
to other damage on the tire and apparently in the side of
the tire. (Tr. at 241-242). The investigating officer
inspecting the tire with them said he could find no puncture
in the tread. (Tr. at 239).
Evidence on this matter surfaced early in the trial, with
investigating officers Samuel Williams and James Pruitt
testifying about their examinations of the car and what
they revealed. (Tr. at 35, 68). However, the matter was not
gone into closely at that time. In particular, there was no
attempt to establish that the tire showed puncture marks in
the tread. Mr. Pruitt was ultimately recalled asa part of the
defense case. (Tr. at 206, et seq.). Questioning then began
in detail about a later inspection, made during trial, of the
tire which, it later came out, Mr. Pruitt could not
positively identify as the same one which was on the victims’
car on the night of the crime. (Tr. at 244-245). At first there
was an objection to this. The district attorney then
withdrew his objection concerning the subsequent
inspection made July 31 and offered to permit the tire into
evidence if the defense would stipulate to the chain of
custody. (Tr. at 209). This was ignored by the defense,
however, with Mr. McMurray then attempting
unsuccessfully to show a chain and to show that petitioner
had told the investigating officers his story by the time of
the car’s release. However, the evidence showed that it was
not until petitioner’s third statement (Tr. at 251-259, 212,
214-217, 262-263), given April 27--a day and a half
following the cars release to its owners--that he admitted
his participation in the criminal episode. (Tr. at 262). His
two earlier versions had been to the effect that he just
A-38
happened on the scene or was drawn there by loud noises
which he overheard. Later, during the course of cross-
examination of Mr. Pruitt by the prosecutor, the defense
attorney stated that he would permit the tire to be
introduced by the state. The state, however, was unwilling
to do so without the chain being established (Tr. at 227). At
that time, no urging was made to the tire being particularly
important or the chain of custody requirement being
unconstitutionally burdensome in this case. The day after
Mr. Pruitt’s testimony, evidence was again taken from him
outside the presence of the jury (Tr. at 237-246) covering
the matters set forth in the paragraph above, such as the
speculative nature of the damage. Mr. Pruitt’s evidence was
apparently accurate in all regards, as the defense
investigator who had examined the tire with him as not
called to contradict his testimony.
II. Allegations
With regard to the first of petitioner’s two contentions,
there is no duty on the police to investigate or prepare a
case in any given way or to recognize the value of potential
evidence. Biddy v. Diamond, 516 F.2d 118 (Sth Cir.), reh.
denied, 9/8/75; State v. Noell, 284 N.C. 670, 692 (1974).
This is especially true in this case, as information
concerning the chain of custody was equally available to
the prosecution and the defense. United States v. Johnston,
543 F.2d 55 (8th Cir. 1976). Petitioner bases this contention
on the antisuppression requirements of Brady v. Maryland,
supra, but the Brady decision is no help to petitioner. That
decision dealt with the failure of the prosecution to turn
over a statement in a murder case that a codefendant (not
Brady) acutally did the killing for which Brady had been
sentenced to death. This was done after a specific requet
was made by Brady for this obviously important evidence.
The Chambers v. Mississippi, supra, case is inapplicable
to petitioner’s second contention. Chambers (the evidence
against whom was minimal) was denied the opportunity to
cross-examine a witness about the recantation of his
A-39
confession which would wholly exculpate Chambers. The
denial to cross-examine the witness was due to a state law
regarding the examination of witnesses which was
described as irrational and archaic. In addition, Chambers
was denied the opportunity to put three hearsay
confessions #y the same party into evidence despite their
reliability on the facts of the case. By contrast, the tire
involved in petitioners case is hardly as probative as four
confessions of another, and the chain of custody
requirement is neither archaic nor irrational. Instead, the
exclusion of the tire dealt with evidence of minimal
importance and of questionable reliability. The damage to
the tire consisted of scuff marks which could not be
distinguished from road damage. These marks were not
noted in the initial inspection but only after the tire had
been lying around in a commercial garage for at least
ninety plus unaccounted for days. This afforded many
opportunities for additional damage, especially since the
tire was off the rim when it was discovered, assuming it was
the same tire.
Furthermore, this court is bound by the decisions of the
North Carolina Supreme Court on matters of state law
involving evidentiary matters. Mullaney v. Wilbur, 421 U.S.
684 (1975); Winters v. New York, 333 U.S. 507 (1948).
With regard to the exclusion of the tire and the testimony
concerning examinations of it conducted on July 31, 1976,
and thereafter, the North Carolina Supreme Court stated:
In.the present case defendant argues that the
location of bullet damage in the tire wound tend
to show that he was in front of the vehicle at the
time the tire was shot and thus tend to
corroborate his testimony that he first fired at the
vehicle as a defensive measure when Miss
Franklin attempted to run him down. Even so,
the record shows the trial court had before it the
testimony of the officers who examined the tire
A-40
on 25 April to the effect that their examination
on that date revealed no holes in the tire. After
the tire had been excluded, Officer Pruitt testified
that even after the tire was broken down for
examination of its interior on 25 April he
observed nothing unusual about it except that it
was flat. The bullets were not discovered until
reexamination of the tire three months after it
had been released from policy custody. Under
these circumstances Judge Friday quite properly
insisted that defendant establish the identity and
unchanged condition of the tire before admitting
it into evidence. There was no _ testimony
identifying the tire offered at trial. There was no
evidence of unchanged condition. Rather,
testimony at trial suggested that the examinations
conducted on 25 April and 31 July (of what was
alleged to have been the same tire showed
conflicting results. In our view Judge Friday
properly excluded the tire and the testimony
concerning examinations of it conducted on 31
July and thereafter.
Defendant further argues, however, that since
the policy officers--agents of the State--caused
the breakdown in the chain of custody, the State
should not be permitted to object to the
introduction of the tire. It suffices to say that
there is no evidence indicating the officers knew
the tire had been fired into at the time they
released it from custody. Nor is there any
indication that defendant’s counsel had informed
anyone the tire would be material to defendant’s
case. Neither bad faith nor negligence can’ be
ascribed to the officers under such circumstances.
Defendant’s second assignment of error is
overruled.
293 N.C. at 484-485.
eS Ws ak: Me Deen Rees aa
— EE
There being no merit to either of Petitioner’s contentions
regarding the excluded testimony this court accepts the
findings of the state court of these questions. Sumner v.
Mata, 449 U.S. 539 (1981); Townsend v. Sain, 372 U.S. 293
(1963). Accordingly, petitioner’s allegation will be
dismissed.
Ill. Conclusion
In applying the standards set forth in Jackson v. Virginia,
443 U.S. 307 (1979), this court concludes that proof of guilt
was sufficient to convince a rational trier of fact beyond a
reasonable doubt.
In accordance with the Fourth Circuit’s decision in
Gordon v. Leeke, 574 F.2d 1147 (4th Cir.), cert. denied,
439 U.S. 970 (1978), this court has carefully examined the
file to determine whether petitioner could prove any set of
facts in support of his claims that would entitle him to
relief. The court has found no basis in fact for petitioner’s
allegations, and a judgment denying the writ, in
accordance with these findings and conclusions, shall be
entered simultaneously herewith.
This 9th day of December, 1983.
/s/Woodrow W. Jones
CHIEF JUDGE,
UNITED STATES DISTRICT COURT
A-42
APPENDIX G
MOTION FOR APPROPRIATE RELIEF
(Filed: 1984 May 3, A.M. 9:17)
Now Comes, William Harbison, Jr., the defendant in the
above-captioned case, pursuant to North Carolina General
Statutes 15A-1411, the defendant hereby makes a motion
for appropriate relief under North Carolina General
Statute 15A-1415. In support of this motion the defendant
will show unto the Court, the following:
Defendant was convicted of Second Degree Murder and
Assault with a Deadly Weapon inflicting serious bodily
injury, on August 30, 1976. The Court imposed a Life
sentence for the murder and Ten years for the felonious
assault.
The grounds for this motion are:
(1) The defendant was not afforded effective assistance
of counsel.
(a). The defendant informed his court-appointed
counsel, John McMurray, two weeks prior to his trial,
that he had obtained other counsel, James C. Fuller,
Jr., and that he would like for Mr. McMurray to
allow his hired counsel Mr. Fuller to be his
replacement in this case. However, Mr. McMurray
failed to comply with the defendant’s request, and
informed the defendant that he had waited to long to
make such a request.
(b). The defendant’s request was based on the fact
that since the date of his appointment to the case, the
defendant had only been allowed the opportunity to
talk to Mr. McMurray twice, this period of time
beginning in April of 1976 and ending in August of
—T a eT os
1976. The defendant made several requests to have his
court-appointed counsel, Mr. McMurray, come see
him in order to discuss his case with him in hopes of
preparing an adequate defense. The defendant had
several of his family members inform Mr. McMurray
of his wishes to consult with him, which he failed to
comply with. Therefore, the defendant requested of
Mr. McMurray to allow his newly obtained counsel
replace him on the case; to which he refused to do.
(c). After Mr. McMurray’s refusal to comply with
the defendant’s request, the defendant called his
retained counsel Mr. James C. Fuller, Jr., and
informed him of what was said by Mr. McMurray.
Mr. Fuller then informed the defendant that he would
inform Mr. McMurray of his desire to handle the case
and that he had been retained by the defendant to do
so. However, he was told by Mr. McMurray that he
would only be allowed to sit on the case as an assistant
counsel, but that he, Mr. McMurray would remain
Chief Counsel for the defense.
(d). The defendant had no other choice other than
to accept this arrangement, because Mr. Fuller
informed him that there was nothing else that could be
done. The defendant informed his court-appointed
counsel, Mr. McMurray, that he would enter a plea of
not guilty, by reasons of self-defense, because the
victim and prosecuting witness were attempting to run
the defendant down with an automobile. That he
attempted to prevent them from doing so, by first
firing two shots at the tire of the automobile.---This
action was even supported by the testimony of the
prosecuting witness---.
(e). The defendant’s court-appointed counsel, Mr.
McMurray, was informed of these facts prior to the
defendant’s trial, and made no efforts to obtain
A44
possession of the tire in question, which could have
been offered as evidence in the defendant’s behalf, to
support the defendant’s allegation of self-defense.
However, due to Mr. McMurray neglectful actions,
by failing to do proper investigation, resulted in the
exclusion of the tire by the Court, on the grounds that
the identity and unchanged condition of the tire had
not been established.
(f). The defendant’s court-appointed counsel, Mr.
McMurray, also caused the breakdown in the chain of
custody, by not informing anyone that the tire would
be material to the defendant’s case. The police
officers-having no knowledge that the tire had been
fired into - released the tire to its owner. The
importance of this evidence to the defendant’s case
was that it was the essential corroborating factor in
the entire case. The tire would have supported the
defendant’s claim that he was in front of the vehicle at
the time the tire was shot, that the vehicle was coming
toward the defendant, that he fired at the vehicle first
as a defensive measure, and that the victim and
prosecuting witness was attempting to run the
defendant down with the vehicle.
(g). During the defendant’s court-appointed
counsel’s Mr. McMurray, closing arguments to the
jury, he made the following statement:
Ladies and Gentlemen of the jury, I know
some of you and have had dealings with
some of you. I know that you want to leave
here with a clear conscious and I want to
leave here also with a clear conscious. I have
my opinion as to what happened on that
April night, and I don’t feel that William
should be found innocent. I think he should
do some time to think about what he has
done. I think you should find him guilty of
manslaughter and not first degree.
These statements were in direct contradic-
tion to the defendant’s plea, thereby
defeating the defendant’s defense, which was
error by the defendant’s court-appointed
counsel, Mr. McMurray. Once the defen-
dant had decided to enter a plea of not guilty
by reason of self-defense, the defendant’s
counsel was bounded by law to uphold that
decision, and to aid the defendant in
establishing that defense, which would also
include the closing argument. If his personal
opinion was of a nature which contradicted
with the defendant’s defense, he should have
asked to be removed from the case or in this
case honored the defendant’s request ‘to
allow his retained counsel, Mr. Fuller,
handle the defendant’s case.
(2) Conclusion
It is clearly demonstrated by the fact as stated herein,
that the defendant was not afforded effective assistance of
counsel, and to further support the defendant’s claim,
attached hereto is a set of INTERROGATORIES and the °
ANSWERS THERETO, which were submitted to the
defendant’s retained counsel, Mr. James C. Fuller, Jr., and
answered in full by him.
The defendant has offered facts beyond a doubt that he
was not afforded effective assistance of counsel, and it is.
through these facts that the defendant request the
following relief:
(3) Relief Requsted
That this Honorable Court issue an Order granting the
A-46
defendant’s Motion for Appropriate Relief, setting aside
the defendant’s sentences of Life and Ten years, and
granting the defendant a New Trial, due to the ineffective
actions of his court-apponted counsel, Mr. John
McMurray.
For this relief and/or whatever other relief this Court
deems just and fair the defendant will forever pray.
This the Ist day of May, 1984.
/s/ William Harbison, Jr.
Defendant pro se
(Verified ‘by William Harbison, Jr., this First day of
May, 1984.)
Certificate of Service
1, William Harbison, Jr., hereby certify that I have served
a true and correct copy of the foregoing Motion For
Appropriate Relief upon the District Attorney by placing
same in a sealed, postage prepaid envelope addressed to
District Attorney’s Office Burke County Courthouse,
Morganton, N.C. 28655 and depositing same in the United
States mail this Ist day of May, 1984.
/s/ William Harbison, Jr.
(Sworn to this First day of May, 1984.)
A-47
APPENDIX H
ART. 89 POST-TRIAL RELIEF
§ 15A-14.11 Motion For Appropriate Relief.
(a) Relief from errors committed in the trial division, or
other post-trial relief, may be sought by a motion for
appropriate relief. Procedure for the making of the motion
is as set out in G.S. ISA-1420.
(b) A motion for appropriate relief, whether made
before or after the entry of judgment, is a motion in the
original cause and not a new proceeding.
(c) The relief formerly available by motion in arrest of
judgment, motion to set aside the verdict, motion for new
trial, post-conviction proceedings, coram nobis and all
other post-trial motions is available by motion for
appropriate relief. The availability of relief by motion for
appropriate relief is not a bar to relief by writ of habeas
corpus. (1977, c. 711, s. 1.)
A-48
APPENDIX I
§ 15SA-1415. Grounds For Appropriate Relief Which
May Be Asserted By Defendant After Verdict And
Without Limitation As To Time.
(a) At any time after verdict, the defendant by motion
may seek appropriate relief upon any of the grounds
enumerated in this section.
(b) The following are the only grounds which the
defendant may assert by a motion for appropriate relief
made more than 10 days after entry of judgment:
(1)
(2)
The acts charged in the criminal pleading did not
at the time they were committed constitute a
violation of criminal law.
The trial court lacked jurisdiction over the
person of the defendant or over the subject
matter.
(3) The conviction was obtained in violation of the
(4)
(5)
(6)
Constitution of the United States or the Consti-
tution of North Carolina.
The defendant was convicted or sentenced under
a statute that was in violation of the Constitu-
tion of the United States or the Constitution of
North Carolina.
The conduct for which the defendant was
prosecuted was protected by the Constitution of
the United States or the Constitution of North
Carolina.
Evidence is available which was unknown or
unavailable to the defendant at the time of the
trial, which could not with due diligence have
been discovered or made available at that time
i.
(7)
(8)
(9)
A-49
and which has a direct and material bearing
upon the guilt or innocence of the defendant.
There has been a significant change in law, either
substantive or procedural, applied in the
proceedings leading to the defendant’s convic-
tion or sentence, and retroactive application of
the changed legal standard is required.
The sentence imposed was unauthorized at the
time imposed, exceeded the maximum author-
ized by law, was illegally imposed, or is otherwise
invalid as a matter of law. However, a motion
for appropriate relief on the grounds that the
sentence imposed on the defendant is not sup-
ported by evidence introduced at the trial and
sentencing hearing must be made before the
sentencing judge.
The defendant is in confirement and is entitled
to release because his sentence has been fully
served. (1977, c. 711, s. 1; 1981, c 179, s. 7.)
A-50
APPENDIX J
ANSWER TO INTERROGATORIES
WILLIAM HARBISON, JR.,
Petitioner
¥,
STATE OF NORTH CAROLINA,
Respondent
1. Yes.
2. I was willing. Others will have to speak to my ability.
3. Yes. Mr. Harbison’s father retained our Charlotte
law firm about 10 days before trial was scheduled. |
promptly contacted Mr. McMurray who indicated a
willingness to withdraw. We met together with Judge
Friday to request a postponement. Surprisingly, Judge
Friday seemed quite familiar about the facts of the case
and denied our request almost before we could finish
making it. Although he had indicated earlier a willingness
to step aside, Mr. McMurray agreed to remain as
court-appointed counsel because there simply was no time
for me to fully and adequately prepare. Therefore, we
proceeded as co-counsel.
4. This question is impossible to answer directly because
it calls for factual and legal conclusions. In past
conversations with Mr. Harbison, he has expressed
concern about two primary areas. In hopes of answering
the spirit of this question, I will address those two areas.
First, as trial approached, it became apparent that there
had not been a physical inspection of the shooting site or a
A-51
physical inspection of the death vehicle’s damaged tire that
would later be the subject of several appeals. With our
investigator Les Burns, I checked both. I never discussed
the question with Mr. McMurray and, therefore, have no
idea about his reason for not conducting the inspections or
whether he thought such was unnecessary.
In my opinion, the tire offered the only evidence
supporting a defense that could lead to acquittal. The
scene was less important since there were numerous
sketches and photos.
The second question arose during closing argument.
Going first for the defense, I argued for acquittal based on
our theory of self-defense, suggesting that the car had sped
at Mr. Harbison, that he had fired first to stop the speeding
vehicle, and that the last several rounds were fired in a
panic as the car sped past. While the argument is
theoretically sound, and supported by the holes in the tire,
it would be a difficult argument to sale to a jury under any
conditions. Mr. McMurray followed. During his argu-
ment, I was quite surprised to hear him suggest to the jury
that Mr. Harbison should be convicted of manslaughter.
He asked the jury to choose between two “extreme views,”
that advanced by me and by the District Attorney. During
his argument, Mr. Harbison became visibly upset. He
asked the investigator and me several times in whispered
tones if Mr. McMurray was on his side or the State’s.
Later, I indirectly expressed my surprised to Mr.
McMurray. He responded that he knew personally a
number of the jurors and believed there was no reasonable
possiblity of their returning a verdict of acquittal.
Therefore, he tried to give them a middle ground that
would be less painful to Mr. Harbison than a conviction
for murder. To my knowledge, Mr. Harbison never
consented to such an argument.
5. To some extent, I have answered this question in No.
A-5S2
4 above. To a greater extent, it is a legal question for the
reviewing judge.
6. This question is also answered to the extent possible
in No. 4 above.
7. It is quite difficult to identify a single reason for the
tire’s exclusion. Frankly, I continue to believe it was
improper regardless. Initially, when we offered the tire, the
District Attorney objected on the grounds of a break in the
chain of custody. At one point, he said that he would offer
the tire himself if it were admissible. We promptly offered
to stipulate to the tire’s admissibility. Then, the District
Attorney hedged on his offer, especially when it became
apparent that the tire would be favorable to our view of the
case. I thought the trial judge’s ruling was remarkable:
That a defendant could lose the right to offer the only
corroborative evidence that existed because the flaws in the
chain of control brought on by police action and inaction.
Obviously, the Supreme Court did not share my concern.
If admissible, I think an earlier identification of the tire
and how it fit into the theory of self-defense would have
been vital to an aggressive defense of Mr. Harbison.
However, based on this strange ruling by the trial judge, it
is hard to figure out what Mr. Harbison or I could have
done that would have made the judge admit the tire into
evidence before the jury.
SOREN ata REPL ae BNA A AD os AN Nace eee
8. This question can best be answered by reference to the
written Opinion of the N.C. Supreme Court.
9. Yes.
1 Affirm:
/s/ Jim Fuller
James C. Fuller, Jr.
A-54
APPENDIX K
ORDER
(Filed: 1984 June 12, P.M. 3:54)
This Matter Coming On To Be Heard Upon A Motion
For Appropriate Relief filed by the Defendant on May 3,
1984 and the Court having read and considered this motion
the interrogatories, the answers to the interrogatories, the
files and the appellate review; and the Court finds that the
Defendant was convicted of Second Degree Murder and
Assault with a Deadly Weapon Inflicting Serious Bodily
Injury on August 30, 1976; and that the Defendant was
represented by Attorneys John H. McMurray and James
C. Fuller, Jr.; and that a motion made by counsel to
postpone or continue the cases was denied and that the
Defendant had ampie opportunity to subpoena witnesses
and to present evidence and that further appellate review
or action was denied.
The Court finds and concludes as a matter of law that
the Defendant has not been deprived of proper legal
representation. The Appellate Courts have previously held
that the standard of effective representation of counsel is
not the same as errorless representation. The fact that the
defense may not have been the best is not within itself
grounds for relief.
This Court further finds that the personal comments and
opinions expressed by counsel were not proper,
[but further finds that the statements were not and do not
constitute prejudicial error.]
EXCEPTION NO. |
[Now Therefore, The Court Concludes As A Matter Of
Law that the Defendant has received a fair trial, has been
A-55
given appellate review and that the Defendant’s Motion is
without merit and is hereby denied and dismissed. ]
EXCEPTION NO. 2
It Is Therefore Ordered that the Clerk of Superior Court
forward a copy of this Order to the Defendant and a copy
to the Assistant District Attorney, J. Gary Dellinger.
This the 12th day of June, 1984.
/s/ Claude S. Sitton
Resident Superior Court Judge
A-56
APPENDIX L
ORDER
(Supreme Court of North Carolina (No. 400PA84))
This matter is before the Court upon the defendant’s
Petition for Writ of Certiorari to review the superior
court’s denial of his motion for appropriate relief. Defen-
dant’s Petition for Writ of Certiorari is ALLOWED, with
review limited to whether trial counsel’s argument to the
jury constituted prejudicial error.
The appellate defender is appointed to represent the
defendant in this matter.
By order of the Court in Conference, this 6th day of
November, 1984.
/s/ Frye, J.
For the Court
Witness my hand and the seal of the Supreme Court of
North Carolina, this the 13th day of November 1984.
/s/ J. Gregory Wallace
Clerk of the Supreme Court
Copy to:
Mr. William Harbison, Jr., pro se
Mr. Newton G. Pritchett, Jr., Associate Attorney
Mr. Major A. Joines, Clerk of Superior Court
Mr. Robert E. Thomas, District Attorney
Mr. Adam Stein, Appellate Defender
West Publishing Company
Mr. Ralph White, Court Reporter
ti
PF +
A-57
APPENDIX M
[52]
VOLUME 2
JOHN McMurray
DIRECT
Mr. Byrd: John H. McMurray, be sworn, please.
Whereupon
JOHN H. McMURRAY,
Having been first duly sworn,
was examined and testified
as follows:
DIRECT EXAMINATION BY MR. BYRD:
What is your name, sir?
John H. McMurray.
Are you the defendant in this civil proceeding, the
State Bar versus you, sir?
Yes.
How old are you?
Sixty-two (62), born October 24th, 1922.
Are you a member of the Bar?
Yes.
op © >
A-58
How many years?
Since September °48, I believe.
You've practiced law some thirty-eight (38) years
approximately?
Since — continuously since that time.
Have you ever in your lifetime been disbarred?
[53]
No, sir.
Have you ever in your lifetime been suspended by the
North Carolina Bar or any Bar Association in
America?
No, sir.
Have you ever in your lifetime ever been publicly
reprimanded by the North Carolina Bar or any other
Bar Association in this World?
No, sir.
Have you ever in your life ever even received a private
censure from the North Carolina Bar or any other Bar
Association?
No, sir.
Have you ever been held in contempt of court?
No, sir.
Are you a trial lawyer?
A-S59
Yes, sir.
Approximately how many murder cases have you
defended in your thirty-eight (38) years of practice,
Mr. McMurray?
it’s difficult to say. Last night I thought about that. |
could sit here and tell you fifteen (15) to twenty (20)
that | can remember..
First degrees?
[54]
Most of the time they’re charged with first degree. |
can remember the case, generally the judge. I can
remember the facts in all of them. I know the result in
all of them.
Now, it gets more difficult those that just don’t
come to your mind. So, it’s hard for me to give a
precise number.
And I believe that your counsel that’s asking questions
of you have had — been on opposite sides of several
very serious homicide cases, have we not?
Well, we’ve been on the same side and on the opposite
side.
Did you appear as counsel in the case of State of
North Carolina versus Clay Cooper?
Yes, sir.
Did | likewise appear with you, sir?
Yes, sir.
A-60
Q. Did you appear as counsel with Mr. Bruce
Vanderbloemen in the case State of North Carolina
versus Woods?
A. Yes. Brian Eugene Woods, yes, sir.
Q. Approximately when were you appointed as counsel
for State versus Harbison by the court in Burke
[SS]
County in relation to when the events occurred?
A. I think the—lI think the homicide occurred about
midnight, I believe, on April 25th, 1976, if I have the
date correct. He was taken into custody that night
and it was probably the next morning, and was lodged
in the jail in Caldwell County. And he was in jail in
Caldwell County over the weekend.
My best recollection is that | was appointed when
he came back to Burke County, probably the early
part of that week which would have been the 27th of
Aprii, probably.
Q. Did you have bail set for your client after you were
appointed, or was he released on bail, regardless of
who set it?
A. Icannot recall how bail was set, but it was set, because
I took him home, as I recall, about midnight when
bond was made for him.
Was that shortly after you were appointed?
Yes, sir.
Q. Did you go to the scene of this homicide?
)
A-61
Yes, sir. | went to the scene. | can recall having — I
knew generally where it was, but I found it. I had
talked to Detective James Pruitt,
[56]
who was the principal investigating officer. At the
time I went to the scene the glass was still on the road.
The area that had been disturbed along the shoulder
where the car was resting when the officers found it
was available.
So, I did make a survey of that scene. I went to the
home that’s closest to this occurrence. I| talked to a
Mrs. Buff, whom I had known. She knew nothing
about it, except she heard the shots. That was the
extent of my on-scene investigation.
MR. BYRD: If it please the Court and counsel, the
Clerk apparently inadvertently did not present the
total record of the proceeding. It was called to my
attention. And this ought to be part of the marking,
whatever that number is.
CHAIRMAN McMILLAN: The Court record is
marked As Court’s Exhibit 3 consisting of two folders,
76-CR-3682.
MR. BYRD: And we would ask you inquire of the
Clerk if this is part of the —
CHAIRMAN McMILLAN: (Interposing) You're
now handing me a folder entitled “Exhibits, August —
August 30, 1976,” two case file numbers listed, one of
which was the one read, 76-CR-3682. The other
[57]
is 76-CR-3865 which is the other folder, State versus
William Harbison, Jr. Also are what appears to be the
court reporter’s notes.
A-62
MR. JOINES: That's right.
CHAIRMAN McMILLAN: All right, sir. We will
include those in the file.
MR. BYRD: Thank you.
(Mr. Byrd) I hand you a folder which is part of the
official record of State versus Harbison and Court
Ex—part of Court Exhibit Number 3, Mr. Mc
Murray, and ask you if those pictures and all those
exhibits in there were introduced in the trial of State
versus Harbison?
(Counsel hands documents to witness who peruses
same.)
Yes, sir. The photographs —I don’t need to give the
number —that are in this manila envelope were
introduced by the State as exhibits.
The diagrams made by Detective James Pruitt,
which are marked State’s Exhibits 22 and 19, were
introduced by the State, and two other documents |
think that have no particular bearing.
CHAIRMAN McMILLAN: Do you offer those?
MR. BYRD: Yes, sir. Well, they're already offered.
I believe the —the Bar counselor, |
[58]
believe, offered them. I just want to be sure that the
Commission saw them.
CHAIRMAN McMILLAN: All right.
These envelopes are the plastic envelopes that the
various bullets and such as that were originally in at
the time received in court.
A-63
- Did you appear at the preliminary hearing for Mr.
Harbison?
Yes, sir.
Did you interview Mr. Harbison at length prior to the
preliminary hearing and subsequent thereto?
Yes, sir.
Did Mr. Harbison write out for you on a yellow pad
what he had to say about this incident?
Yes, sir, at my request. I told him to write in detail
what had occurred, and he did that and delivered it to
me.
i hand you a yellow pad and ask you if that is a yellow
pad?
Yes, sir.
Review it and ask you if that is the signed statement
by your client, William Harbison, Jr., that he wrote
out and gave to you that you just referred to?
[59]
Yes, sir.
MR. BYRD: Id like to have that marked for —
number — Defendant McMurray’s number four.
(DEFENDANT'S EXHIBIT A,
McMURRAY HEARING,
MARKED FOR IDENTIFICATION.)
(Mr. Byrd) Will you read the first sentence, and these
pages are not numbered, about page eight if we count
front and back. Some are written on the front and
back, are they not?
Yes.
Read that.
“I came on down the road because | thought she was
just clowning around but all of a sudden she hit her
brakes and I had to jam on mine to keep from running
into her and she pulled off and I lost control of my car
but managed to hold on to it.”
Shall I proceed?
No, sir.
MR. BYRD: We now offer this exhibit in its
entirety into evidence.
[60]
CHAIRMAN McMILLAN: Any objection, Mr.
Lunsford?
MR. LUNSFORD: Yes. This exhibit was not
listed on the pretrial order and | haven’t seen it.
MR. BYRD: You may see it, sir.
MR. LUNSFORD: And it appears to be a lengthy
document.
CHAIRMAN McMILLAN: While you're — go
ahead and examine it. While you’re doing that, what
did you tell me these were, Exhibit 17A?
MR. BYRD: I didn’t tell you anything, sir. Mr.
McMurray —
THE WITNESS: (Interposing) Those were the
exhibits that had the bullets and various other things
that related to the—from hands —results from a
paraffin test, | believe, and such as that. And when
they were found in the Sheriff's office, the bullets were
not in there. That’s the form in which they were
found.
CHAIRMAN McMILLAN: All right. But they’re
now blank — or empty.
THE WITNESS: They’re empty.
CHAIRMAN McMILLAN: Empty. All right. 1
[61]
just wanted the record to show that they were turned
over to us empty.
THE WITNESS: That’s correct.
(Mr. Lunsford reviews Defendant’s Exhibit 4.)
MR. LUNSFORD: All right. Thank you.
MR. BYRD: We offer this into evidence.
CHAIRMAN McMILLAN: Any objection, Mr.
Lunsford?
MR. LUNSFORD: We think it’s irrelevant.
CHAIRMAN McMILLAN: All right. It’s ad-
mitted.
(Mr. Byrd) Mr. McMurray, would you just tell us
rather succintly the matters that you did do after you
were employed in preparing to defendant Mr.
Harbison on first degree murder and assault with a
deadly weapon, inflicting serious injury with intent to
kill which were consolidated for trial, just the —
succinctly tell us what you did as a lawyer?
A.
I interviewed the officers; there were several officers
involved. Basically James Pruitt was the detective. |
obtained —I asked —I interviewed Mr. Harbison,
and | talked with his family. I asked him to write this
statement to give me while things were fresh in his
mind, all
[62]
the details that he could remember at that particular
time. I went to the scene. That’s basically what I did
insofar as talking to witnesses. After Mr. Fuller got in
it, we met on one occasion at the Holiday Inn.
He was very interested in the tire. We discussed
that. He was also interested in whether or not in
following a car on this road one could ascertain
whether or not the car was occupied either by one or
two occupants.
And, so, we got out on the country road with
someone driving a car ahead of us and he and I were
in the car behind; and we were travelling the road ai
the speed we thought that they would by travelling, at
the distance that we ascertained they were following to
determine if he could have determined whether or not
there was a driver or a driver and an occupant.
We had interviewed a good many witnesses. I had
obtained a list of about twelve (12) potential witnesses
that knew him. He had worked at one of the State
units, the prison department. I think I had gotten his
work record and what his reputz:ion was.
[63]
I talked at length with his father and his mother.
They were very concerned about his involvement. And
Jim Fuller and I talked by telephone and corre-
sponded prior to trial.
And I think —I think Mr. Fuller is correct that he
A-67
was there on Sunday before the trial, and we worked
on it constantly from that date until the trial time.
Did you do some research?
Yes, sir. We basically studied the law of self-defense
and laws that applied to a homicide occurring in the
heat of anger, the heat of passion. What effect a
homicide as a result of panic would be. And the
genera! law of homicide.
And you were reasonably familiar with those laws
already, were you not, sir?
Well, I don’t know that studying that 1 really
ascertained anything I had not been exposed to. And
to this day —I don’t know anything to this day about
this case that I did not know in April of 1976.
Nothing knew developed —
(Interposing) They’ve surprised me with some of the
things they’ve said. I didn’t know what —some
[64]
of the comments that have been made in this
grievance. | —those things have surprised me..
Did you at your client’s suggestion ask Judge Friday
to permit you to withdraw?
I received the information that Jim Fuller had been
employed by the family. I cannot say whether or not
that was a tentative employment or not. I made a note
in my record that there had been a statement made to
me that he was going to be employed and that I would
be requested to withdraw; and | told him I’d be very
glad to withdraw and would have been.
A-68
Is that your usual practice when a private lawyer is
employed and you’re court appointed to —
(Interposing) This is the only time that I’ve ever been
required to stay in a case after private counsel — that |
can recall, after private counsel has been employed.
Judge Friday declined to allow me to withdraw, and
that settled it.
Did that declination by Judge Friday have any effect
whatsoever upon your dedication to your client in
defense of his case?
No, sir
[65]
In the trial of this cause, did you represent Mr.
Harbison to the best of your legal ability?
Yes, sir. And I was very —I was satisfied with what
we had done in retrospect; as I look back today I do
not know —and so many cases you try and you realize
you’ve made a mistake, you’ve left out something or
that you should have proceeded in a different fashion.
Today I cannot write a scenario or a record and say
that I should have done this or should have declined
to do this, because the verdict was as much as any
reasonable attorney could expect. Because we were
down to rock bottom; we were down to where you
were dealing with reality and you have to — when you
get in the trial of a case like this, there comes a time
when you’ve got to make a tough decision, to leave the
dream world about what you may hope may occur.
And after eight years I cannot come up with a
different position —and if I have an opportunity I can
explain my position —that I should have taken a
A-69
different position in this case if 1 was going to seek
what | thought—what I considered in my best
judgment was the best for William Harbison.
[66]
I can’t say that about every case, because there are
cases when | get through with them things have gone
quite to the contrary to what I thought they would go.
I realize I’ve made mistakes —and I’m not saying we
didn’t make mistakes in this case — but the result —
the development of this case was as good as any
reasonable attorney can do.
Now, whether you pick out the finest attorney in
America and say he could have cleared William
Harbison, that’s —that’s a dream world; that’s
fantasy; that’s hope. And we are dealing with reality.
Was he being tried under the felony murder rule as
well as premeditation and deliberation?
Mr. Greene had indicated to us that he would try this
case on the basis of premeditation, first degree, based
on malice, second degree or manslaughter. I had been
involved in a case with Judge Friday; I knew he
would — in all probability —submit the felony mur-
der.
We had a conference at the bench and he — we dis-
cussed the fact that the State and I had understood
that we would not proceed on felony
[67]
murder. Judge Friday said that was his decision, as it
was. He then told us that he would submit the felony
murder as the first issue and would charge the jury
that they must consider this issue first.
If they answered that first issue “yes”, that would
complete the homicide trial.
That would be first degree murder?
That would have been first degree murder.
And then did he tell you the second issue he was going
to submit would be first degree murder on
premeditation and deliberation?
Yes, sir. And they’re on second sheets. He gave the
jury the sheets. Felony murder and then premeditated
murder and then down the line second degree
manslaughter, involuntary manslaughter or not
guilty.
After Judge Friday would not admit the tire, did you
have any evidence other than the —whatever the
defendant Harbison testified himself or self-defense?
May I answer that not directly? I'll come to a direct
answer. The tire was basically Mr. Fuller’s idea. That,
in my recollection, is the only
[68]
injection —the only different method of proceeding
that was involved in this case when he got in the case. |
do not place as much importance on the tire as he
seemed to by his testimony yesterday.
The physical evidence in this case —and you can’t
get away from it —according to Mr. Harbison’s own
testimony was that after a pursuit of some five (5)
miles — and even in his testimony at rather high rates
of speed, because he said rocks were being thrown
against his car and such as that, stopped his car on this
remote rural road twenty-five (25) to thirty (30) feet in
front of Danna Franklin’s car.
The glass shows that she was on the right-hand side
of the road at that time. These pictures show that
Sane nee ee
A-71
when the car accelerated it stopped some twenty-five
(25) feet distant from where she originally had been
stopped by him completely off the road.
That’s as far as it ever travelled, according to the
State’s evidence?
And the pictures show that. And the glass shows it.
The location of the car shows it. The pictures show
[69]
where the highway sign was on the Jamestown Road
to show that — you fix the location of it. And there is
no way physically that you could have told a jury that
she was going down the center of the road to try to run
over somebody. And that’s — you've got to consider
the fact that she had testified, emotionally. We had to
stop the trial two times..
Was her eye shot out?
And she was sitting there with an opaque eye. They
had put a glass eye in that was a temporary eye that
was Opaque, white. Seated there and said to him, in
effect is how she testified, you didn’t give us a chance.
We were trying to get around you and you shot us
point-blank, and the car was stopped some twenty-
five (25) feet from where the glass was.
And there’s no way, not physically, unless he
positioned himself in front of the car. He got out on
the left-handed side of the car and walked back, and
she had driven the car trying to go around him. The
physical evidence showed it. These diagrams show it.
The pictures show it.
You just couldn’t convince a reasonable jury
A-72
[70]
or any jury that she tried to run over him on that
particular occasion.
So, I don’t lay a great deal of stress on the tire. It
would make no difference to the jury whether the tire
is in evidence or not. It didn’t get in. But when the tire
didn’t get in, the only evidence we had of self-defense
was that he said she tried to run over him.
He wasn’t struck. At most that was a nonfelonious
assault. You can’t — you can’t stretch it any farther
than that. You can’t — you can’t get to any conclusion
but what he was the aggressor. And by driving and
stopping her on a remote country road at twelve
o'clock at night, getting out of a car with a gun either
in his belt or in his hand —she said in his hand; he
said in his belt —she would have had the right to
exercise whatever force was necessary to protect her
life, even running over him.
But she didn’t do that. She went to the side. He was
the aggressor. You can’t get away from the fact that
he used excessive force. And here in this courtroom
today you can’t understand it, but when the Solicitor
is talking about firing
[71]
three shots —not one —one, two, three at point-
blank range in the backs of two people as he did. One
shot in Morris Hardy’s back right in the middle and
came out right at his breast bone. She was hit in the
back. Unarmed. He was in no danger — never said he
was in any danger.
The car was going by him when he shot. He shoots
in a side window three times, kills a man, puts the
girl’s eye out and flees the scene.
And this man dies there in front seat with this little
eee Se ee
A-73
girl with her eye so damaged that she’s in shock. And
then come and say that you could manufacture self-
defense out of that and get up and enthusiastically
argue to a jury to turn him loose. There isn’t any jury
that would have said we're going to set him free and let
him walk the streets again.
And Mr. Fuller talks about possibilities. There is —
sometimes when you’ve got some emotion on your
side that the jury might take the facts and come down
to a lesser degree or acquit somebody because of a
peculiar reason. The flow was the other way on this
occasion because you still had a living participant in
that tragedy.
[72]
With that girl sitting there telling his story with her
injury apparent, telling how she tried to flee him afier
he’d followed her for five miles, saying that he needed
a gun to go back when he thought that just this little girl
weighing a hundred pounds was in the car and he
needed a gun in his hand or in his belt to go back to
protect himself, to expect a reasonabie jury to think
that he needed that for his self-protection is beyond
credulity. You're in the — you're in the wishful stage;
you're in the dream world.
And that didn’t occur on this occasional because the
hard reality was that he left a man to die there on that
remote country road with a girl in shock and fled the
scene.
And did the Solicitor tell you that he was going to try
him for first degree murder?
Mr. Greene never made us any offer. He wouldn’t
make us an offer. He just would not talk about any
lesser plea, never did.
Q.
To Ff. 2: 2
A-74
All right, sir. Now, when Mr. Fuller argued to the
jury, were you there?
Yes, sir.
Had Mr. Larry Jacobs, who is now deceased, opened
[73]
as a Pros — one of the Prosecutors?
He did.
Do you have?
(Interposing) I’ve got my notes over there in my
thing.
I'm handing you a bunch of legal pads and many,
many pages, and ask you if those were your notes that
you kept during the trial of State versus Harbison —
(Interposing) These are some of the notes.
—or at least a part of them?
Yes, sir.
Does a section of them have the jury argument?
Yes, sir.
MR BYRD: Id like to have marked as D-5, am I
correct —five yellow sheets. And would Your Honor
permit me to tear them away from the other portions
of the notes?
MS. BRYANT: Are you admitting the whole thing
or —
MR. BYRD: (Interposing) No.
<a sn
A-75
CHAIRMAN McMILLAN: You’re offering the
five —
MS. BRYANT: —just the five yellow sheets?
CHAIRMAN McMILLAN: — pages?
[74]
MR. BYRD: (Nods affirmatively.)
CHAIRMAN McMILLAN: All right.
(Mr. Byrd) Now, after Mr. Jacobs argued, could you
just give us the thrust of his opening argument?
He would have argued only for first degree. And his
argument would have been based on a pursuit for this
five-mile distance that Mr. Harbison was pursuing
because of the fact he had been associated with Danna
Franklin for two years and that he stopped them on
this rural road about midnight; and that he got out
with a loaded pistol in his hand.
When she saw the pistol she tried to drive around
the car; that he discharged it five times, three times in
the window; that he killed Hardy and wounded
Danna Franklin; that without staying to see if he
could render any assistance to help anyone he fled the
scene; that he came back and that he told the officers
that he happened upon the scene and saw these people
in trouble and, for that reason, brought Danna
Franklin to the hospital; that he did not make any
statement about it implicating himself for several
days; that the —- Danna Franklin was unarmed; that
Morris Hardy was
[75]
unarmed; that he was never in any serious peril
himself; that he fired point-blank at them; and that it
was by his—by his own testimony that he had
A-76
testified that he fired into an occupied car and was
guilty of felony murder..
Then did you observe the jury and look at them
during Mr. Fuller’s argument?
Yes, sir.
When Mr. Fuller argued — if he did argue — for total
acquittal, as he said he did, tell us, as you saw it, the
reaction of the twelve jurors and the alternates in this
case.?
I knew several of the jurors — I can remember two in
particular; one of them is here today — whom | had
known for twenty years. Another one was John
Gathings who was — operated a store there.
I don’t think that anybody can look at a jury and be
positive, but you can determine whether or not they
are attentive, whether or not you feel — get a feel that
you're making headway with them. To argue to this
jury that you can shoot a man — to argue to the jury
on that occasion as he did that you can shoot a man in
the back who is unarmed after pursuing him for five
miles, leave him there
[76]
to die and then have them introduce pictures into
evidence showing a hole in his back and have her tell
how she, when the shot hit her, it knocked her up
against the car and how she was out there wandering
that road and trying to search out some help and
couldn’t find any. The jury was passive.
No jury gave it a second thought in my opinion.
That’s how you perceived it sitting there as trial
counsel, wasn’t it?
A-77
And subsequent events have indicated, as one of them
sought me out —
MR. LUNSFORD: (Interposing) Objection.
(Mr. Byrd) Let’s don’t go to that yet?
All right.
Now, you have your notes there of the jury argument
that you made prior to making the argument, do you
not?
Yes, sir.
Can you tell us the —and you may review your notes
to refresh your recollection —the thrust of your jury
argument? And have you reviewed those notes —
(Interposing) Yes, sir.
— carefully?
[77]
Yes, sir. In the court situation on that day, we were
faced with the —if we were going to be of any
benefit — if I was going to be of any benefit to William
Harbison, | had to try—and I don’t know how
persuasive lawyers are; we may be or we may not be to
jurors — but | had to do something to get the jury to
take this top sheet on felony murder and lay it aside
and consider whether or not he was guilty of murder
under these other issues that were being submitted.
Of premeditation and deliberation?
On down the line. That was a requirement or we did
him no good. 1 was convinced that we had no plea of
A-78
self-defense that a jury would buy. We had no factual
plea of self-defense. We had no legal plea of
self-defense.
I concluded that you had to say something to the
jury in some way to get them to consider a lesser
included offense. I didn’t argue that he was
convicted —that he should be convicted of anything.
The import comes through that way. My argument —
the thrust of my argument was that he should not be
convicted of felony murder or first degree murder or
second degree murder. That was
[78]
the approach that I took.
My first part of my talk was to indicate that
William Harbison had a good record and a fine
family; that he had been caught up in this situation —
Danna Franklin was a — was a daughter of a broken
home. She lived with an alcoholic father. She found
friendship in the Harbison home. They befriended
her.
And my point was to point out that there was no
bitterness toward her. There had been nothing but
friendship. But they got caught up this night in this
unusual situation that he did not foresee because she
had told him she was going to take a bath that night
and go to bed and then later on he had observed her
with this man; that he pursued her, and that when he
stopped the car, he had no intent to harm anybody.
He got out with the pisto! wherever it was; that in that
remote situation he did not know who might be in the
car or that they might be armed and, therefore, he —
he took the pistol for his own protection; that when
she did accelerate the car, he panicked, and when
he — when the car went by him that it wasn’t — he was
A-79
not firing for the purpose of — of killing anybody, it
[79]
was through panic; and that he discharged the gun in
the car through panic and that at the most this would
be a homicide resulting from the heat of passion, from
anger suddenly aroused, from emotion.
Mr. Greene in his argument discussed emotion, |
think. But that was the thrust of — of my argument,
and tried to buttress that with the idea that when he
left the scene that night he could have fled the scene,
and it may well be that no one would have ever known
that William Harbison was the perpetrator of this
criminal offense. But he came back.
And | think I tried to make a big point of the fact
that it showed that he had no intent because he came
back to the scene and that he then rendered assistance
to her by taking her to the hospital; if he hadn’t taken
her, she’d have died out there on the road.
I’ve got notes here that maybe he —that was — that
quality in him that brought him back that night was
his mother’s training. Maybe it was human decency.
Maybe it was affection for Danna Franklin. | argued
about the fact that the tire —that the State had the
obligation to bring the tire
[80]
and they did not do so.
I argued the fact that you could not believe Danna
Franklin, because Danna had testified that she had
not had an abortion; she had had an abortion. |
argued that she was not worthy of belief because she
had falsified that evidence.
I argued that she also falsified the fact that this was
a continuing relationship and she was ashamed to
admit that she was continuing to go with him; and,
therefore, she said they had broken off a year ago,
which was — which was not the case.
That there had been no malice in this case. It’s not a
case of second degree, because he had no malice
against Danna Franklin. The State had hardly
mentioned Morris Hardy, and they showed no malice
involving Morris Hardy; that the State was purely
using emotion to try to arouse their —their feelings
against him because of the fact that Danna Franklin
who was there, obviously injured.
I argued that it would not be justice for him who
had throughout the day been just doing routine things
and all of a sudden faced with this kind of situation,
acting on the spur of the moment, no anger toward
either of these parties; that he
[81]
fires in panic; that it would not be justice for him to be
convicted of first degree murder or second degree
murder.
And at some point in the argument | said, you’re
going to find guilty —or you may find him guilty of
some criminal offense. | cannot quote my words
precisely. You may find him guilty of some criminal
offense; you will find him guilty of come criminal
offense, but you should not find him guilty of any
offense greater than manslaughter.
Had you written out any argument to the jury?
No, sir. I wrote these notes, and I can’t tell you
whether I wrote them at the noon hour or whether |
wrote them the night before. I did not stand up with
these notes in my hand. I —
(Interposing) You never do, do you?
Well, I’m not a very good detail person to itemize, at
three o’clock—the car drove down the road at
three-fifteen; I just don’t do that —for well or evil, |
don’t know.
Incidentally, I might say that the jury came back
after deliberating some period of time — not long —
and asked Judge Friday, are we entitled to take this
first issue —
[82]
(Interposing) That was the felony murder?
—that’s the felony murder —and lay it aside and
consider the other issues, which is what I had
undertaken to persuade them to do. And Judge
Friday said, of course, you can do it; and they went
back and —.
(Interposing) And he let them go home for the night,
1 believe, in the mean — no, —
(Interposing) No, sir.
—they came back on Saturday and asked that
question, didn’t they?
No. They asked that question as they went out. They
had not been out very long and came back and asked
that. No. He—he held them that night in the
Holiday Inn, I think.
And then did they reach a verdict on Saturday
morning, then, is that correct?
No. They reached a verdict, whatever day it was, late
in the afternoon. The verdict was reached at five or
six o’clock on the afternoon.
A-82
Mr. McMurray, I want to ask you this. Did you, sir,
intentionally fail to seek the lawful objectives of
William Harbison, Jr., your client, through reason-
able available means permitted by law in this
[83]
trial?
MR. LUNSFORD: Object.
CHAIRMAN McMILLAN: Overruled.
The answer is yes. In this particular case, if I had not
been in the case —.
(Interposing) Let me be sure you understand my
question. I don’t believe you understood it. Read it
back, please?
The answer as the question is phrased is “no”.
MR. LUNSOFRD: Motion to strike.
CHAIRMAN McMILLAN: Denied?
In this particular case —.
(Mr. Byrd) (Interposing) You may explain?
—if I had not been in the case making the argument
to persuade the jury to move from felony murder,
William Harbison would have been convicted of first
degree murder. In addition to that —now, you lose
sight of the fact that he was charged with assault with
a deadly weapon with intent to kill, inflicting serious
injury on Danna Franklin which he was guilty of on
his own statement.
She was seriously injured. He had fired in the
window. He had killed Morris Hardy. The jury cut
that to a ten-year felony. And I don’t believe
A-83
[84]
that—no matter how skillful or how silver one’s
tongue is—that they could have argued self-
defense —
MR. LUNSFORD: (Interposing) Objection?
—and persuaded the jury to have reduced it from first
degree to second degree and from a twenty-year to a
ten-year felony.
CHAIRMAN McMILLAN: Overruled.
MR. LUNSFORD: Motion to strike that as
speculative.
CHAIRMAN McMILLAN: Denied.
(Mr. Byrd) Did you, in your opinion, give your client
your best skill, your best judgment as a lawyer in this
case?
The answer is yes. We worked hard on this case. Mr.
Fuller is right; this was not an easy case. It —it was
something that you do the best you can on. ;
All right.
I was never displeased with the verdict.
What was the reaction when the verdict of second
degree came in?
There was a —an acceptance, a relaxation —
MS. BRYANT: Whose reaction are we talking
A-84
[85]
about?
CHAIRMAN McMILLAN: By whom? Who are
we talking about?
We're talking about the audience, I presume, the
audience that was there in the courtroom. The
courtroom was filled, a lot of people in the courtroom.
I was relieved. I took the position that if they would
have returned —the jury would have returned a
verdict of manslaughter, that would have been beyond
any reasonable expection.
What —?
(Interposing) At that particular time —Mr. Fuller
talked about sentence —there was no way for me to
know what Judge Friday was going to do. He didn’t
know what Judge Friday was going to do.
(Interposing) All! right. Let me leave you right there a
minute?
All right.
What was the reaction, if any, of Mr. Harbison when
the jury found him guilty of second degree murder and
found him not guilty of first degree murder?
I can’t remember any — he certainly didn’t object to it.
He had gotten off from a sure life sentence.
[86]
There was no — he never spoke to me in a critical way
about any of the trial.
©
Q.
ero >
A-85
Did he ever speak to you at all about your jury
argument, Mr. Harbison?
No, sir.
Has he to this hour ever spoken to you?
(Interposing) Not directly.
The first time you ever heard of this was in copy of an
interrogatory in the spring of ’84 in the post-convic-
tion hearing?
| think that’s correct, yes.
Mr. Fuller sent you a copy of his response, is that
correct?
Yes.
During seven and a half or eight years, did anybody
ever say anything to you about your jury argument in
the defense of William Harbison, jr.?
His mother wrote me a letter thanking me. I’ve got
that note
MR. BYRD: Mark this, Madam Reporter —
Madam Clerk.
(DEFENDANT'S EXHIBITS 5, 6 AND 7,
McMURRAY HEARING,
MARKED FOR IDENTIFICATION.)
[87]
(Mr. Byrd) I hand you an exhibit marked Defen-
e>°e > © >
dant’s Exhibit Number 6 and ask you if it’s addressed
to John McMurray, Attorney, Ervin Building,
Morganton, North Carolina? (Counsel hands exhibit
to witness who peruses same.)
Yes.
Does it have a postmark, by chance, on it?
Glen Alpine.
Does it have a date, something °77?
December 9, 1977.
Was that after the Opinion of the Supreme Court had
come down and Mr. Harbison shortly prior to that
time had been brought to the Superior Court to have
his life sentence imposed?
I’m sure that is, but I don’t remember the precise time
of the —.
(Interposing) It will speak in the record, won't it?
Yes.
Will you read that to the panel?
MR. LUNSFORD: Objection. That’s hearsay.
CHAIRMAN McMILLAN: Overruled. Go ahead.
[88]
(Reading Defendant’s Exhibit 6) “Dear Mr. Mc
Murray Thank you for trying to help William Jr. the
pressure have been great but being colored the cards
are stack against us before Court even starts Thank
wae te AP had Noa as
A-87
you so much” It’s signed here Margaret Harbison;
then over on the right it says “to someone specially
thoughtful YOU! Margaret & William Harbison”
MR. LUNSFORD: Motion to strike.
CHAIRMAN McMILLAN: Denied.
(Mr. Byrd) I hand you Defendant’s Exhibit Number 7
and ask you if you responded on November the
10th — or error — December the 10th, ’77 and, if so,
will you please read that to the panel?
(Counsel hands Exhibit 7 to witness who peruses
same.)
Yes, sir. I haven’t seen this letter for eight years. It’s
the first time I’ve seen it.
You turned your file over to me when you hired me,
did you not?
Yes, sir, without reading it.
This is dated December 10th, 1977. “Mr. and Mrs.
William Harbison, P.O. Box 724, Glen Alpine, North
Carolina 28628 Dear Mr. and Mrs. Harbison: I ever
much appreciate your note received this date. The
Opinion has been filed in the office of the
[89]
Clerk of Superior Court however I have not received
it in the advance sheets. I have read the Opinion.
“If you should want to read this Opinion if you will
let me know | will make you a copy of it when
received.
“I feel like we did about all that could be done in this
case and I felt that the reduction from first degree to
the second degree and from the 20 year to the 10 year
A-88
assault was satisfactory as far as we were concerned.
Our problem was the severity of the sentence and
North Carolina follows this rule that this is not
reversible error as long as this is within allowable
limits.
“I do believe and hope that the fact that William
was convicted of second degree rather than first
degree will be of substantial benefit to him with
reference to the time he will be required to serve and
other prison rights and benefits.
“Yours very truly, John H. McMurray.”
MR. BYRD: We offer that into evidence.
CHAIRMAN McMILLAN: It’s admitted.
MR. LUNSFORD: What number was that?
MR. BYRD: Seven. You may examine him.
MR. LUNSFORD: May I have a moment, please,
sir
[90]
CROSS
CHAIRMAN McMILLAN: Five-Minute recess.
(SHORT BREAK: 11:20 — 11:32.)
CHAIRMAN McMILLAN: All right. We're back
in session. Cross—examination.
rT 7 Ff
A-89
CROSS-EXAMINATION BY MR. LUNSFORD:
Mr. McMurray, prior to making your closing
argument, you did not discuss what you were going to
argue with Mr. Harbison, did you?
No, sir. I discussed it with Mr. Fuller.
You did not discuss it with Mr. Harbison?
No, sir.
And he did not authorize you to suggest to the jury
that he should be convicted of manslaughter, did he?
MR. BYRD: Object to the form of the question.
MR. LUNSFORD: This is cross-examination.
CHAIRMAN McMILLAN: Well, ovecruled.
He did not suggest to me anything. We discussed
various defenses. Had we been relying on self—defense
alone, we would have plead not guilty by reason of
self-defense. We surely had no intent at
[91]
any time to abandon the possibility of manslaughter
based on killing in the heat of passion.
Those — those defenses were discussed. We would
have been very foolish to have said —under this
evidence — that we'll rely only on that very narrow,
vague, faint, ephemeral possibility of self-defense.
Let me ask you one more time, Mr. Harbison. Did he
ever authorize you to suggest to the jury he should be
convicted —
CHAIRMAN McMILLAN: (Interposing) It’s Mr.
McMurray.
o> © >
A-90
MR. LUNSFORD: Excuse me?
CHAIRMAN McMILLAN: Mr. McMurray.
(Mr. Lunsford) Mr. McMurray. | beg your pardon.
Did Mr. Harbison authorize you to suggest to the
jury that the jury should convict him of manslaughter?
MR. BYRD: Objection.
CHAIRMAN McMILLAN: Overruled.
(Mr. Lunsford) Your answer is?
No, sir.
Do you recall receiving the letter of notice from the
Grievance —from the Chairman of the Grievance
Committee which has been identified and introduced
[92]
into evidence as the Plaintiffs Exhibit Number 1, do
you not?
Yes, sir.
And attached to that was an item identified as the
Substance of Grievance in which the allegation of Mr.
Harbison were summarized?
Yes, sir.
And you admit receiving that?
Yes, sir.
And as was your duty under the rules of the State Bar,
you responded to that letter of notice and the
allegations contained in the Substance, did you not?
I did.
o> © >
A-91
And your response was contained in a letter to Rivers
D. Johnson, Chairman of the Grievance Committee,
dated September Ist, 1984, was it not?
If the date’s correct I responded.
MR. BYRD: Let him see it if you don’t mind.
MR. LUNSFORD: Yes, sir. I'll be happy to.
(Counsel hands exhibit to witness who peruses same.)
(Mr. Lunsford) this was the Plaintiffs Exhibit
Number 2. That letter, Plaintiff's Exhibit Number 2,
was your response to the Letter of Notice, was
[93]
it not?
Yes.
And on page five of that letter you signed the letter?
Yes, sir.
And under the rules of the State Bar, it was your
obligation to make a full and fair disclosure of the
facts and circumstances pertaining to those allega-
tions was it not?
Yes, sir.
MR. BYRD: Objected to.
(Mr. Lunsford) Did you understand — excuse me.
MR. BYRD: That’s a matter of law.
CHAIRMAN McMILLAN: Read the question
back. I’m sorry.
a + .s
A-92
(QUESTION READ: PAGE 93, LINES 7-10.)
CHAIRMAN McMILLAN: I don’t understand the
question, so I’ll sustained the objection.
MR. LUNSFORD: That’s probably poorly phrased.
My appologies.
(Mr. Lunsford) In responding to the Letter of Notice
[94]
Mr. McMurray, did you attempt to candidly and
truthfully explain what had happened in this
connection, your actions?
Yes. In a limited fashion, | —to the questions asked,
yes.
Let me direct your attention to page four of your
letter, to the second full paragraph beneath your
sub — subparagraph four (4), “Statements to the
jury.” Would you please read that to yourself.
I’ve read it.
Have you had that opportunity?
(Nods head affirmatively.).
Now, Mr. McMurray, let me also direct your
attention to the first full paragraph on that page — I’m
sorry — would you please read that?
(Reading document) “On the homicide charge | stated
to the jury that on this evidence ! was of the opinion
defendant would be convicted fo some criminal
offense, but he should be found guilty only of
manslaughter.”
MR. BYRD: We object for the reason before that
we objected that nobody should be able to reconstruct
the jury arguments except Judge Friday.
CHAIRMAN McMILLAN: All right. Overruled.
[95]
(Mr. Lunsford) And reading down further on that
page, isn’t it a fact that you made the following
statement in your letter: “I knew some of the jurors
and believed that they would take a realistic view of
this case and as a consequence | determined that it was
necessary to try to persuade the jury to pass the felony
murder issue and then not convict the defendant of
either first or second degree murder but rather that the
fair vercict would be manslaughter.”
Was that your statement in this letter to the
Grievance Committee, sir?
Yes.
MR. LUNSOFRD: We have no further questions.
REDIRECT
REDIRECT EXAMINATION BY MR. BYRD:
Now, wouid you explain the two paragraphs of your
letter that you sent back to the Bar? And I’ll ask you
before you explain if you had reviewed your file or
your jury notes at the time you responded?
I did not review the file on response. I was naive, |
suppose, in thinking that there was a focus
[96]
on me that — moving toward censure. I wrote that,
sir, to the best of my recollection.
I had not thought at the time that I would be
required to make exact quotes. To this day | cannot,
word for word, state what I said. I can’t honestly say
whether I said — whether the word opinion has some
bearing or not in the final outcome in this case;
whether I said you may convict him, you will convict
him, I am of the opinion you'll convict him, the — |
never said as he suggested that he should get time.
That was not the thrust of my argument.
I was trying to honestly indicate to the Bar that |
had taken the position that we did not have a
self-defense plea and that the only way we would
by-pass felony murder was to get the jury to consider
the degrees of murder.
And that I — and I did make a statement; but to say
that I can quote that verbatim today is beyond my
ability. 1 remember a lot of things as this matter has
come up and | —if this transcript of my argument to
the jury is ever found, I| feel sure that a statement with
that import is in it.
Whether I ever alluded to it at another time,
[97]
I don’t know.
I’m sure there were some —there may have been
later on in the argument that — my notes say that first
degree would be a harsh unjust verdict, and I may
have alluded at that time that they should not find him
guilty of more than manslaughter.
And in your inquiry from the Bar, this was the fourth
or fifth inquiry; there’s numerous inquiries about not
3 ke an
> © > ©
A-95
going to the scene and not protecting the tire and
many things; this is just a portion of a long letter that
the plaintiff's counsel asked you about, isn’t it?
Yes. 1—1I didn’t —again, I didn’t think, you know,
that — think that one element was more serious than
the other. The fact that I hadn’t gone to the scene, Mr.
Fuller makes that statement; that statement is not
correct. I don’t know how or why he made the
statement. It just is not correct.
I never told him that. Apparently, he relies on
Harbison for that purpose.
Because you do know you went, don’t you?
Well, I went, and I remember going; and I would not
[98]
have told him I did not go.
After you employed our law firm on or about the 28th
of December, 1984, did you and your counsel make a
diligent search for the jury transcription of the
argument — the transcription of the jury arguments?
I have. I’ve been through all the exhibits in the Burke
County Courthouse which were in a manila folder
with the name of the defendant on them..
Did you: go through them with the court officials?
I went with the assistant clerk.
Were they locked up in a room somewhere?
They were — yes. They were in a safe type room to
which the clerk has a key. We also went to a storage
room upstairs on the main—on the—where the
A-96
courtrooms are and searched there in some boxes that
were there.
We went to the Sheriff's office and found — found
the Sheriffs file of this case, but did not find any
notes.
Did you find notes of the trial? I hand you a part of
the Court Exhibit, the number | do not remember.
MS. BRYANT: Court Number 3.
[99]
CHAIRMAN McMILLAN: Court three.
(Mr. Byrd) Court three. —and ask you if you found
those in the records —
(Interposing) I did not—TI did not personally find
these, no.
You did not find those? All right?
Those were —those were found by someone else.
All right, sir. I hand you Defendant’s Exhibit Number
2, which was a letter from the Court Reporter Clara T.
Cline dated January 6, 1977 and ask you to read that.
That was identified by Mr. Fuller.
(Counsel hands exhibit to witness who peruses same.)
This is addressed to me dated January 6, 1977.
(Reading document) “Mr. John McMurray, Attorney
At Law, Morganton, North Carolina Re: State
versus William Harbison, Jr. Transcript Dear Mr.
McMurray:
“Enclosed is the first section (237) pages of the
transcript of the trial of State versus William
Harbison, Jr.
A-97
“Please accept my apology for the delay in getting
this to you. Since I began typing on the transcript,
several things have come up to prevent me from being
able to work on the transcript
[100]
as I hoped I would be able to.
“The remainder of the transcript, in my estimation,
will be approximately 350 pages, and | cannot say at
this time when it will be completed; however, | shall
work on it as much as I possibly can. For the next
several weeks | will be in Court, so therefore, my
typing time will be limited.
“By a copy of this letter to Mr. Fuller, I would like to
inquire of you and him as to whether or not | should
type the arguments of the attorneys to the jury. Unless
i hear from either of you, I will not type the
arguments, since it is customary—since it isn’t
customary to type the argument unless requested to
do so.
“If either of you have any questions regarding the
transcript, please do not hesitate to get in touch with
me.
“With kind regards, Sincerely yours, Clara T. Cline,
signed ‘Clara Cline’, “with a carbon copy to Mr.
James Fuller.
Did you request that the jury arguments be typed?
No, sir.
Did Mr. Fuller ever suggest to you that the jury
arguments be typed?
A-98
[101]
No, sir. He never suggested that and never suggested
anything about the jury argument. I|—I never can
recall any critical comment about the jury. I was as
close to them as 1 am to you. I never observed — and
as you’re arguing you see what’s going on —I never
observed any colloquy between him — I’m not saying
it didn’t go on. But the idea of calling me a son of a
bitch and thinking that that’s the last time — that
nobody would comment about that for eight years is
hard for me to understand, particularly when him
mother and father were very cordial to me.
And the courtroom was filled with his friends,
because I can remember very distinctly the reaction
when the verdict came out —.
(Interposing) You put about twenty some of them on
the stand, hadn’t you, a great number of them, hadn’t
you?
There were — I don’t know the number, but we put a
lot of witnesses on the stand as indicated in the record,
and none of his friends or relatives ever made a critical
comment. The—absent critical comments, I had
talked to his parents. In this —
[102]
in making up the appeal I corresponded with Mr.
Fuller numerous times. Our relationship was very
cordial. If James Harbison at that time was displeased
with this verdict, it’s beyond my credulity that they
would never have commented to me.
I can’t believe that my attitude to this court is so
radically different from Mr. Fuller that I would have
the feeling that we had done as much as lawyers could
do in—in representing him, as contrasted with his
A-99
idea that he is displeased; unless he’s seeking a
miracle. We were as successful in defending him as
attorneys of our capabilities generally are.
Let me ask you this. Did you or did you not, based
upon your jury notes and your best memory, say to
the jury in the trial of the Harbison case, quote,
“ladies and gentlemen of the jury, | know some of you
and have had dealing with some of you. I know you
want to leave here with a clear conscience. | have my
opinion as to what happened on that April night, and
I don’t feel that William should be found innocent. |
think he should
[103]
do some time to think about what he has done. | think
you should find him guilty of manslaughter, not first
degree,” end quote.
Did you, sir, say that or not?
I did not say that. When I argued this case, Judge
Friday was as close to me as Mr. McMillan is.
And do you talk in a loud voice usually?
Well, the jury is seated like that first row there and I —
in a case like this | don’t whisper to them. For that
reason I get back to about where the — this is — and
I’m backed up to where the Judge is. So, the Judge
could have reached out and touched me
Now, if you know Judge Friday, he’s not going to
let something go on in his courtroom that may imperil
a lengthy difficult trial such as this is.
Had he already stopped somebody from saying the
word “liar”?
A.
Q.
I was not the one that said that.
I understand that. Had he already stopped someone?
Yes. I’m not sure who said that, and I won’t make a
suggestion; but I would not have suggested my
[104]
client get time. That’s not my prerogative. I was trying
to reduce it from — from first degree, or second degree
to manslaughter; that’s not my preogative. What I
said, I don’t know. But if I were up there making
statements that would — after Judge Friday had tried
this case for several days —and it was an emotional
trial. It’s hard to realize today as you sit in this room
here the emotion there was there. And to think that
Judge Friday would not have reached out and tapped
me on the shoulder and told me that, Mr. McMurray,
you're — whispered to me or sent the jury out —.
(Interposing) That you were admitting your —?
— Judge Friday is not that kind of Judge. He’s got no
hesitance about telling me what to do in his court;
that’s his responsibility. And he did on this occasion.
At one time I sought to put something in the record
that —to preserve the fact that Mr. Greene and I had
discussed it, and he said he wouldn’t allow — that he
would not proceed on felony murder.
And what — did he admonish you what he’d do to you
if you tried to put that in?
With —in very clear, unequivocal terms
[105]
Is it in the record there what he said?
No, sir. It’s not in the record. Were were at the bench.
I got the message. Judge Friday was right. But |
was — we had this tension at the time. Judge Friday
was presiding, but we were pushing as hard as we
could. And—and he says, you can’t do that, and
added a few things that let me know that I couldn’t do
it. And I did not do it, but we made an effort to do it.
But Judge Friday would not have permitted me to
have made an argument — he, having tried many cases
like this, would be obviously in error. I can’t read
Judge Friday’s mind, but I’m satisfied Judge Friday
concluded that we obtained a verdict of second degree
and of a ten-year felony, that we had acted as well as
attorneys in North Carolina should act and dispose
themselves in the trial of a serious criminal case such
as this.
What happened—what was the emotion and
response when Judge Friday gave Mr. Harbison life
on second degree? First, what was your reaction when
he gave him life on second degree?
Well, —
MR. LUNSOFRD: (Interposing) Objection. This
[106]
far exceeds the scope of direct and cross—-examination,
and I don’t think it’s appropriate at this point on
redirect.
CHAIRMAN McMILLAN: Well, it does, but go
ahead.
I was an advocate. | was caught up in the trial. We
had done everything we could and felt like we had
been successful in reducing it from mandatory life
imprisonment. And I was disappointed that we did
not get a term for years. But I’ve heard enought
A-102
sentences like that that | don’t have the emotional
outburst that occurred.
But the audience—when Judge Friday said |
sentence you to life imprisonment, there was a
murmuring in the courtroom, audible, ohhh — by
numerous people. It was spontaneous.
What was the air as Judge Friday was leaving the
courtroom to go home from this trial?
The murmuring continued.
Did you see Judge Friday as he went out to get on the
elevator?
Yes, sir.
Tell what occurred?
Well, they were in the lobby. You go from the
[107]
courtroom into the lobby and the people had come
out there and were still murmuring and talking. |
can’t tell you what it was, but it was like a cacophony
of voices talking at the same time which was a
emotional reaction.
And I think that that emotional reaction occurred
because we had gotten this matter reduced from the
mandatory life sentence and they were given some
hope and that life imprisonment struck that hope out
from under them, and they were murmuring against it
was they were gripped in the emotion of what had
transpired.
MR. BYRD: I have no further questions.
CHAIRMAN McMILLAN: All right. Now, since
A-103
he did exceed your scope, do you have any other
questions, Mr. Lunsford?
MR. LUNSOFRD: We have no further questions
at this time.
CHAIRMAN McMILLAN: Do you have ques-
tions?
MR. SHERWOOD: One. Mr. McMurray, you’ve
stated in your testimony here that you had
reservations about this self-defense thing all the way.
Do you have anything in your file which would
indicate you wrote your client and said, I’ve got
[108]
reservations about this, | don’t think we ought to do
this, or we ought not to do this?
No. I did not write him any letters. Our correspondence
was always one-to-one. I’m sure that he and I discussed
the heat of passion; that had been my thrust of the case
from the beginning.
From all the evidence he had told me about, from
the— James Pruitt, the Deputy Sheriff, and the
physical evidence, | felt like that was a — that was a
realistic plea, something to get your teeth into,
something you really could work on; but I did not
face-to-face say to William Harbison, I am going to
undertake to argue that you should not be found
guilty of first or second degree or that the maximum
verdict should be — be manslaughter.
MR. SHERWOOD: But you don-t have any letter
or anything which indicates you questioned the —
(Interposing) No, sir.
MR SHERWOOD: —the not guilty?
The — Judge Friday’s submitting —
A-104
MR. SHERWOOD: (Interposing) You've an-
swered my question.
[109]
CHAIRMAN McMILLAN: Do you have any
further questions? ,
MR. SHERWOOD: No.
CHAIRMAN McMILLAN: Do you have any
questions?
MS. BRYANT: Yes. I’m concerned about — and
want to hear from you — how you see your role in the
adversarial process, vis-a-vis, the presumption of
innocence and how that — what weight that carries
and how you see your role with that weight in the
adversarial process, as in the criminal trial?
Well, in this particular case, after William Harbison
testified, it was my legal responsibility to interpret
what he testified to as best I know how and take the
position that most favorably deals with what his
testimony showed. Because | think that if —if I am
obligated in the case in which I exercise my judgment
that there is not a self-defense plea that has any
possibility of success, if | am obligated under those
terms where the—where I conclude there is no
possibility of success to make that argument to the
jury, then I am in violation of a standard, if that’s
what it requires.
[110]
I don’t see my role as the inflexible.
MS. BRYANT: Well, if there is a conflict between
your interpretation of his testimony or what you see
the case as being and the right of the defendant in this
case to have the presumption of innocence and
pleading not guilty or whatever grounds he wants to
A-105
plead on, how do you see — what is the relative weight
of those two? Do you see them as being equal, one
more weighted than the other or —
(Interposing) I can’t answer of equal weight.. But a
defendant cannot make the judgments on this case as
to whether or not he is the aggressor — generally they
have no knowledge whatsoever about what it means
to be an aggressor. They have no knowledge about
how it weighs — whether or not they’ve used excessive
force. They have no knowledge about their right to
use whaiever force is necessary to repel an assault.
The lawyer has got to make that decision, and he
cannot be bound by his client. If he is, then a trial gets
to be sort of woodened —
MS. BRYANT: (Interposing) Well, after it having
been — after advising a client of all of
[111]
those issues, then what has— where do you see the
weight then? Who has— what has the most weight,
your judgment or that client’s decision of what they
want to do?
If a client came to me and said that at all costs I want
to plead not guilty, if | though that he had no — that
that was an unreasonable request, then | suppose my
duty would be either to withdraw or acquiesce to what
he was requesting me.
I don’t think as a lawyer —I don’t think in good
conscience, if someone says, | want you to plead
self-defense, that I can plead self-defense when there
is no self-defense.
MS. BRYANT: And when you feel there is no
self-defense, then, how do you see the relative weight
of the client’s desire to plead and your feelings?
A.
A-106
Well, I think it depends on whether the client has
made any statement to you. Normally you do the best
you can for a client, and we don’t —we didn’t get
down in this case in which I asked him or he told me
that at all costs I want to plead self-defense.
I think if he had, then I would have had to
[112]
have made the motion to withdraw on that grounds.
MS. BRYANT: So, are you saying that you weren’t
clear — strike that.
Are you saying that you had some notion that you
had Mr. Harbison’s permission to ask the jury —
(Interposing) I did not have his permission. We did
not have any agreement. We had—we had not
abandoned defenses other than self-defense. We did
not discuss those with him as such.
We had no agreement that our sole plea would be
self-defense. If it was, it would seem to me that we
would have plead not guilty by reason of self-defense.
MS. BRYANT: Well, I guess the fair question is,
how did you perceive Mr. Harbison’s objective?
His objective was to obtain the best results possible
under the evidence of this case.
MS. BRYANT: I recall you earlier saying that you
did not say that he should serve some time. So, are
you saying that all references to any statements you
might have made that he should serve some time to
think about what he had done were not true?
I did not make that statement. I’d be very surprised
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[113]
if the record was found that I said that. I just can’t
comprehend making that kind of statement. I’ve —
MS. BRYANT: (Interposing) Mr. Fuller —
— never made a statement like that, never made a
statement like that in addressing a jury.
MS. BRYANT: Mr. Fuller made comments about
some thrust to the extent of you being between two
extremes and his position being extreme. Do you
recall that part of your argument —
(Interposing) I don’t recall —
MS. BRYANT: —to the jury?
—that. There is in my notes a question that —
something about the harshness of first degree and the
middle ground. I have difficulty recalling that
statement. I may well have made that. I —1 can’t —
when you ask about saying that he should serve time,
I can be unequivocal. When you ask me whether or
not I said about a middle ground, I may very well have
argued that, because my thrust was that we were
seeking to obtain a verdict that was other than first
degree or second degree.
MS. BRYANT: And going back to your perception
that—or your notion and feeling — understanding
that Mr. Harbison wanted the best result he could
[114]
obtain. Did you feel that from your talking to him or
interviewing him any agreements that you all did
make that he had given you any kind of direction as to
how he —any limitations on that?
He did not give us any direction, placed no limitation
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on it. Our discussion — I’m sure that — our approach
was, do the best we could. We had no idea exactly
how the evidence was going to come down.
Mr. Fuller thought he’d get the tire in; he didn’t.
The —I did not know—lI had a general idea how
Dianna Franklin would testify; but we had to see what
her testimony — what effect that would have on the
jury. We were, as in most cases, going to do the best
we could.
MS. BRYANT: Well, do you believe that it was the
defendant’s right to determine in the first instance how
he would plead and to determine any matters that
would happen in the trial that would effect, you know,
these —the plea of not guilty?
I don’t think he has the right to tell me to argue
self-defense if there is no self-defense. I guess the
right at that point in time, if he insists on that, |
should report that to the court and tell
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the court that—that in good conscience, I don’t
believe I could make that argument, and ask the court
to continue the case and release me from it.
MS. BRYANT: And did you believe that that was
what Mr. Harbison wanted?
No. There had been no—there had been no
discussion along those lines. We had — we had talked
about heat of passion; we had talked about the tire; we
had talked about the fact that he didn’t have the
intent. But, we were going to deal with those as best
we knew how.
There’s a case that’s come down, incidentally, from
the Court of Appeals that says that a lawyer is not
obligated to plead self-defense even though his client
may insist on it which came out after this case, long
after this.
CHAIRMAN McMILLAN: Do you have further
questions?
MS. BRYANT: Unh-unh (no).
CHAIRMAN McMILLAN: Mr. McMurray, fol-
lowing the jury verdict, did you argue to Judge Friday
on sentencing?
I do not believe there was any argument on
sentencing. I have no recollection of any argument on
sentencing.
[116]
I’m sure Judge Friday inquired if we had anything
further to say.
CHAIRMAN McMILLAN: And was sentencing
imposed immediately?
Sentencing was imposed soon after the verdict came
in, within — I can’t talk about the time. I don’t know.
It may well be —it may well be that we had — you
know, I would — I would believe that if we had argued
all these points, | would — 1 would — my recollection
would be that we would have asked Judge Friday to
be as lenient as he could and talked in those terms,
which we normally do.
But I have no recollection of that.
CHAIRMAN McMILLAN: Do you have any
recollection of —in your jury argument, making the
statement that there are things in this young man
worth saving, or wrods to that effect?
I think that that’s in my notes, and I’m sure I made
that type argument. William Harbison is an
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intelligent young man, and he’s got a very fine family.
And he had attended Western Piedmont Community
College and had made a very good record. He’s well
thought of by the people there. And I think my —in
talking
[117]
about the family and him, that I would have argued
those positions.
CHAIRMAN McMILLAN: Do you recall saying
something to the effect, I don’t believe you’re going to
accept the argument from my friend from Charlotte?
No, sir. 1 would not have been overtly —it would
have been very foolish of me to have been overtly
critical of his argument. I, frankly, don’t think that his
position and my position was detrimental to us. He
argued one position, under very difficult circum-
stances, and if I come back and argue another, I think
the two of them working together may have been
beneficial to us in getting the jury to by-pass felony
murder and consider a lesser degree.
CHAIRMAN McMILLAN: There’s a distinction
in my mind from saying “I think you ought to find
him guilty of manslaughter,” on the one hand and
saying on the other hand that “if you accept
everything that the District Attorney has attempted to
show, the most he is guilty of is manslaughter”.
Do you accept that—there being a distinction
between the two?
I think there is a distinction. I did not argue
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that he should be convicted of manslaughter. In
undertaking to get them to move from the degrees of
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murder, I argued he should not be found guilty of any
offense greater than manslaughter.
I’m not arguing for a conviction. I’m arguing for
acquittal of first degree and second degree.
CHAIRMAN McMILLAN: Did you, as a part of
your argument also argue for total acquittal as Mr.
Fuller had done?
Whether at the end of my argument I made the
statement that you normally do that you must find
this — you should find this defendant not guilty, I do
not have that recollection. I can’t recall the words that
I used to wind it up.
If I was asked to—my best recollection, my
conclusion would have been that William should not
be found guilty of murder in the first degree of murder
in the second degree. Now, whether I said not guilty, I
just don’t recall.
CHAIRMAN McMILLAN: Is it your best
recollection that the thrust of your argument was
calculated to be that the should be found guilty of
manslaughter?
No. My thrust was that he should not be found guilty
[119]
of murder in the first degree or murder in the second
degree.
I did not know how to even get them to consider
that except in the way that I did. There may be other
methods of doing it.
CHAIRMAN McMILLAN: All right, sir. Now,
do those questions from the panel provoke questions
from counsel?
MR. BYRD: The answer is, no.
A-112
MR. LUNSFORD: Nothing from the State Bar.
CHAIRMAN McMILLAN: Thank you, Mr.
McMurray.
(WITNESS EXCUSED: 12:12 P.M.)
CHAIRMAN McMILLAN: Next witness.
MR. BYRD: Ms. Clara Cline. While she’s coming,
we offer now Plaintiffs Exhibit Number 2 as
identified by Mr. Fuller and now been testified to by
Mr. McMurray.
CHAIRMAN McMILLAN: It’s admitted.
MR. BYRD: We, likewise, offer Exhibit Number 5,
the notes of Mr. McMurray’s file relating to the jury
argument.
CHAIRMAN McMILLAN: Admitted.
APPENDIX N
[77]
VOLUME 2B
MR. LESLIE FARFOUR,
DIRECT
Having been first duly sworn
was examined and testified
as follows:
DIRECT EXAMINATION BY MR. McMAHON:
Q. State your name please?
ie eS FF
i
©
2 ewe =
rio 6: CS
A-113
Leslie A. Farfour, Sr.
And where do you live?
Morganton, North Carolina.
Where — how old are you, Mr. Farfour?
Do I have to answer that?
CHAIRMAN McMILLAN: No, sir. Give us
within five years.
72.
(Mr. McMahon) Mr. Farfour, were you present at the
trial of the State versus William Harbison, Jr. back in
1976, that’s the subject of this action?
I] was.
Why were you present?
I was called on the jury.
And did you in fact sit on the jury of the case?
I was actually the foreman of the jury.
[78]
Now, do you remember that trial?
I do.
Do you remember who was the judge?
Judge Friday, yes, sir.
> @ - @
A-114
Do you remember who the lawyers were?
I do.
Who were they?
Mr. McMurray and an associate and Mr. Greene and
his associate, | don’t know — Mr. Jacobs, deceased.
When you refer to Mr. McMurray’s associate, could
you be referring to the gentlemen who testified here
yesterday, Mr. Fuller?
The one with the loud coat.
CHAIRMAN McMILLAN: He apologized for
that coat.
MR. BYRD: He was going on vacation.
CHAIRMAN McMILLAN: That’s what he said..
(Mr. McMahon) Did you understand that as you —
after you were selected for the jury that mr. Fuller and
Mr. McMurray were working together?
Yes, I was.
You referred to him as Mr. McMurray’s associate.
Did you get the impression that he was literally
[79]
an associate?
He was — he was assistant. I changed the wording. He
was the assistant in this trial only.
Okay. Do you remember the arguments made by the
lawyers to you there in the jury box?
A-115
Well, most of it, I do.
Do you remember John McMurray making his
argument to you?
I remember his the most.
Why is that?
He made such a strong plea, and all during the trial |
had my mind set almost at the end that it was a first
degree as far as 1 was concerned. But his plea was so
vigorous, so — I was so impressed — I didn’t know he
had it in him, because I’ve been knowing him; and
that’s the reason that I remember that.
Do you recall anything about his —can you describe
his emotion, if any, that he portrayed?
He was very vivacious and that was the thing that
made me think about how — his delivery was great.
Well, what was your reaction as a juror in this
[89]
case to Mr. McMurray’s argument?
Well, as 1 told you, I had in my mind before we
went — went back to the jury room that it was a first
degree murder, completely. Until I heard his plea,
would you call it? I’m not a lawyer. 1 just —in plain
language his argument to us, he sort of gave me a —
made me hesitate as to whether it was first degree or
not.
Did his argument appear to you there on the jury to be
sincere?
A-116
Very sincere. This is what I meant to say. It was very
sincere. Conscientious. Very vivacious.
Did he argue at length, do you recall if it was long?
I can’t —I can’t truthfully say that. I don’t know how
long it was. We listened to the other lawyers as well as
to the charge from the judge and I just don’t know
how long it was.
Now, after you — do you recall any other things about
the argument of John McMurray?
In what way are you talking about?.
Well, my question to you is, after you heard t
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