Crawford v. Bounds

• Decision Date: 11 April 1968
• Docket Number: No. 10981.,10981.
• Citation: 395 F.2d 297
• Parties: Marion Frank CRAWFORD, Appellant, v. V. Lee BOUNDS, Warden of Central Prison (Successor to K. B. Bailey), Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

395 F.2d 297 (1968)

Marion Frank CRAWFORD, Appellant, v. V. Lee BOUNDS, Warden of Central Prison (Successor to K. B. Bailey), Appellee.

No. 10981.

United States Court of Appeals Fourth Circuit.

Argued October 3, 1967.

Decided April 11, 1968.

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M. C. Burt, Jr., Durham, N. C. (McKissick & Burt, Durham, N. C., on brief) for appellant.

William Van Alstyne, Durham, N. C., as amicus curiae.

Daniel H. Pollitt, Chapel Hill, N. C. (Charles F. Lambeth, Jr., Thomasville, N. C., on brief) for the North Carolina Civil Liberties Union, as amicus curiae.

Ralph A. White, Jr., Staff Atty., Office of the Atty. Gen. of North Carolina (Thomas Wade Bruton, Atty. Gen. of North Carolina, and Theodore C. Brown, Jr., Staff Atty., Office of the Atty. Gen., of North Carolina, on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges.^*

WINTER, Circuit Judge:

Petitioner, a thirty-year-old male Negro, was convicted of first degree murder of an eight-year-old female Negro child, occurring in the course of the commission of rape, allegedly perpetrated by him November 18, 1962.¹ N.C. Gen.Stat. § 14-17. Petitioner was found guilty and, because the jury's verdict contained no recommendation for mercy, petitioner was sentenced to death. On appeal, the judgment entered on petitioner's conviction was affirmed. State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963).

About an hour prior to the time that capital punishment was to be carried out, petitioner sought a writ of habeas corpus from the district court. He obtained a stay of execution, but he was remitted to available state remedies, not then exhausted. The district court retained jurisdiction until state exhaustion had occurred. Petitioner sought post-conviction relief and was afforded a plenary hearing, where he was represented by court-appointed counsel. N.C.Gen. Stat. § 15-217. Relief was denied him and the issuance of a writ of certiorari was denied by the Supreme Court of North Carolina. He then renewed his application for a writ of habeas corpus in the district court, which, after considering it, the record extract and briefs of the appeal in his original trial, and the transcript of the state post-conviction proceeding (excluding the exhibits admitted at that hearing), summarily denied him relief.²

Before the district judge, petitioner advanced numerous contentions why the judgment entered on his conviction was invalid. He claimed, generally, that he was denied due process of law, in that he was never adequately informed of the charges against him and was convicted of a crime with which he was not charged, and that he was denied his right to indictment by grand jury because the prosecutor was permitted to amend the indictment to include matters not presented to the grand jury; that he was denied his right to a trial by an impartial jury because the prosecutor was permitted to challenge for cause prospective jurors who expressed sentiments against capital punishment; that he was denied due process because the prosecutor refused to accept a plea of guilty with sentence of life imprisonment; that he was denied due process because the prosecutor announced, prior to trial, that he would seek the death penalty, the prosecutor introduced irrelevant evidence at the trial for its inflammatory effect on the jury, told the jury of petitioner's prior criminal record, and pleaded with the jury for the death penalty; that he was denied a fair trial because inflammatory evidence, including pictures of the deceased's body and her private parts, was exhibited to the jury; that he was denied effective assistance of counsel because a lawyer was not appointed to represent him before the preliminary hearing and, when his court-appointed counsel was appointed, he represented petitioner incompetently; and that the North Carolina statute relating to the death penalty is unconstitutional on its face and in its application to members of the Negro race.

Most of these claims of invalidity were pressed at the state post-conviction hearing and evidence was offered in support of many of them. Absent any suggestion of waiver or deliberate bypass, and there is none, petitioner has exhausted his available state remedies in regard to the contentions made before the district court. Stem v. Turner, 370 F.2d 895 (4 Cir. 1966); McNeil v. State of North Carolina, 368 F.2d 313 (4 Cir. 1966). We conclude that petitioner is entitled to a writ of habeas corpus because his constitutional rights were violated by the manner in which the jury to determine his criminal responsibility was selected, and particularly because the prosecutor was allowed successfully to challenge prospective jurors for cause who expressed sentiments against capital punishment and thus to disqualify a substantial segment of the panel, without the additional determination being made that their objections to capital punishment would preclude them from rendering a fair verdict on the issue of guilt.^2a We confine our consideration, therefore, to that issue.³

It is undisputed that members of the panel, from which the jury that convicted petitioner was chosen, were interrogated as to whether they had any sentiment or reservation against capital punishment; and any who expressed any such sentiment or reservation were, at the request of the prosecutor, immediately excused for cause without further inquiry. Thirty-four of seventy-five prospective jurors were disqualifed on this broad ground. None of these thirty-four was asked whether his scruples against capital punishment would interfere in any way in the determination of petitioner's guilt or innocence. Thus, 45.33% of the cross-sectional panel was eliminated from service on the petit jury because of a conscientious scruple toward capital punishment without inquiry as to what effect, if any, their scruples would have on their ability to decide the issue of petitioner's guilt or innocence.⁴ Moreover, four veniremen were peremptorily challenged by the prosecution after preliminary questioning established that they were less than firm believers in capital punishment. Including these four, thirty-eight out of seventy-five veniremen (50.66% of the total) were thus excluded from petit jury service for these reasons.

In sharp contrast to the 45.33% of excluded jurors, a juror who admitted that he had "more or less, a fixed opinion" about the case as a result of reading about it in the newspaper was permitted to serve after the trial judge questioned him and elicited the further answers that the juror could "erase" the opinion from his mind, and that he could "disabuse" his mind of the opinion, and decide the case solely on the evidence adduced in court, applying thereto the court's instructions, so as to give the state and petitioner a fair trial. The challenge of defense counsel for cause was denied.

Thirty-one jurors were accepted by the prosecutor. Only thirteen were actually empaneled, but each of the thirty-one professed a belief in capital punishment. Indeed, one of the thirteen stated that he believed "in the doctrine of an eye for an eye," and that he believed it would be his duty to sentence a defendant found guilty of murder to capital punishment. Thus, while no person known to entertain even an unexamined scruple regarding the death penalty was permitted to qualify, a juror known to regard a sentence of death as his "duty" was permitted to serve.

In permitting the veniremen in petitioner's case to be examined on voir dire as to their reservations or sentiments against capital punishment and excusing them on challenge for cause if they evidenced conscientious scruples against imposition of capital punishment, the original trial judge proceeded in accordance with established North Carolina practice, approved over sixty-three years before. State v. Vick, 132 N.C. 995, 43 S.E. 626 (1903); State v. Vann, 162 N.C. 534, 77 S.E. 295 (1913); State v. Arnold, 258 N.C. 563, 129 S.E.2d 229 (1963), rev'd on other grounds, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964). See also, State v. Manning, 251 N.C. 1, 110 S.E. 2d 474 (1959) (concurring opinion); State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1961). It is significant that the Arnold and Childs cases arose and were decided after a 1949 amendment to the criminal statutes of North Carolina which permitted, for the first time, a jury in a prosecution for first degree murder upon a determination of guilt to exercise a choice between the imposition of death or life imprisonment. Theretofore death was the exclusive and inevitable judgment to be entered on a jury's verdict of guilt of first degree murder.

The text of the 1949 amendment is set forth in the margin and consists of the emphasized portion of N.C.Gen.Stat. § 14-17.⁵ The function of the jury under the amendment has been considered in many decisions. In State v. McMillan, 233 N.C. 630, 65 S.E.2d 212 (1951), it was held that an instruction to the jury that the statute gave them the right to recommend life imprisonment "if they feel that under the facts and circumstances of the crime alleged to have been committed by the defendant, they are warranted and justified in making that recommendation" and that if they did not feel "under the facts and circumstances" that such a recommendation was warranted, they should act accordingly, vitiated an otherwise valid conviction in which a verdict, without recommendation was returned. The vice in the instruction was, the Court said, that it placed unauthorized restrictions upon the discretion vested in the jury:

"The language of this amendment stands in bold relief. It is plain and free from ambiguity and expresses a single, definite and sensible meaning, — a meaning which under the settled law of this State is conclusively presumed to be the one intended by the Legislature. * * *

"It is patent that the sole purpose of the act is to give to the jury in all

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