State v. Childs, 6

• Decision Date: 15 March 1972
• Docket Number: No. 6,6
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Albert Bobby CHILDS.

Page 78

187 S.E.2d 78

280 N.C. 576

STATE of North Carolina v. Albert Bobby CHILDS.

No. 6.

Supreme Court of North Carolina.

March 15, 1972.

At the November 1965 Criminal Session of Buncombe Superior Court, defendant was tried and convicted for the capital crimes of rape and first degree burglary and was sentenced to death by asphyxiation in each case. Defendant appealed to the Supreme Court of North Carolina, and this Court on 3 February 1967 found no error in the verdicts and judgments of the Superior Court. State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967). Defendant then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of North Carolina. That court stayed proceedings pending the filing of a petition by defendant in the State courts for a post-conviction hearing.

On 14 June 1967 defendant filed a petition in the Superior Court of Buncombe County for a post-conviction hearing seeking a review of the constitutionality of his convictions and sentences. This petition was heard before James H. Pou Bailey, Judge Presiding at the 8 July 1968 Special Session of Buncombe Superior Court, and on 10 July 1968 Judge Bailey entered an order denying the relief sought by defendant.

Pursuant to G.S. § 15--222, defendant then filed a petition for a writ of Certiorari in the North Carolina Court of Appeals. This petition was denied by the Court of Appeals on 1 October 1968.

On 27 December 1968 a petition for writ of Certiorari to the Superior Court of Buncombe County, North Carolina, was filed in the United States Supreme Court. On 28 June 1971 Certiorari was granted. Childs v. North Carolina, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971). On 28 June 1971 the United States Supreme Court entered the following mandate:

'UNITED STATES SUPREME COURT MANDATE

UNITED STATES OF AMERICA, ss:

THE PRESIDENT OF THE UNITED STATES OF AMERICA

'To the Honorable the Judges of the Superior Court of the State of North Carolina, Buncombe County,

'GREETINGS:

'WHEREAS, lately in the Superior Court of the State of North Carolina, Buncombe County, there came before you a cause between Albert Bobby Childs, petitioner, and The State of North Carolina, respondent, No. 67--791 WC, wherein the judgment of the said Superior Court was duly entered on the tenth day of July A.D.1968, as appears by an inspection of the petition for writ of certiorari and response thereto.

'AND WHEREAS, in the October Term, 1970, the said cause having been submitted to the SUPREME COURT OF THE UNITED STATES on the said petition for writ of certiorari and response thereto, and the court having granted the said petition:

'ON CONSIDERATION WHEREOF, it was ordered and adjudged on June 28, 1971, by this Court that the judgment of the said Superior Court, insofar as it imposes the death sentence, be reversed, and that this cause be remanded to the Superior Court of the State of North Carolina, Buncombe County, for further proceedings. Witherspoon v. Illinois, 391 U.S. 510 (88 S.Ct. 1770, 20 L.Ed.2d 776) (1968); Boulden v. Holman, 394 U.S. 478 (89 S.Ct. 1138, 22 L.Ed.2d 433) (1969); Maxwell v. Bishop, 398 U.S 262 (, 90 S.Ct. 1578, 26 L.Ed.2d 221) (1970) and United States v. Jackson, 390 U.S. 570 (, 88 S.Ct. 1209, 20 L.Ed.2d 138) (1968).

'NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

'Witness the Honorable WARREN E. BURGER, Chief Justice of the United States, the twenty-third--day of July--in the year of our Lord one thousand nine hundred and seventy-one.

E. ROBERT SEAVER

Clerk of the Supreme Court of the United States

'No. 5014, October Term, 1970

Albert Bobby Childs,

v

North Carolina'

Pursuant to this order and mandate of the United States Supreme Court, Harry C. Martin, Judge Presiding, Superior Court of Buncombe County, issued notice on 30 July 1971 to counsel of record that further proceedings in accordance with the mandate of the United States Supreme Court would be conducted on 9 August 1971. On 9 August 1971 defendant was present in the Buncombe County Superior Court, together with his counsel, James E. Ferguson, II, who filed a written motion for a new trial. After hearing arguments of counsel on the motion, Judge Martin found certain facts from the record and affidavit filed in the case and entered conclusions of law and judgments as follows:

'1. That the guilt of the defendant and his conviction of the crimes of rape and first degree burglary have not been reversed or modified by any appellate court and have been affirmed by the Supreme Court of North Carolina.

'2. That in the event the State sought to retry the defendant as to his guilt or innocence of said charges, a plea by the defendant of former jeopardy under the Fifth Amendment of the United States Constitution would probably be sustained.

'3. That it is very improbable that the State could secure the attendance of the prosecuting witness Mrs. Waller at any further proceedings in this cause, and without her presence the State could not be accorded right and justice in any retrial of the cases.

'4. That the Supreme Court of the United States has reversed the imposition of the death sentence (and this court has construed it to apply to both death sentences) and in the opinion of this court there is no sentence for possible commutation by the Chief Executive of North Carolina.

'5. Upon invalidation of the death sentences in this cause by the Supreme Court of the United States, the only permissible punishment in accord with right and justice is life imprisonment.

'6. This court has the authority, both inherent and under the laws, common and statutory, and Constitution of North Carolina, to pronounce judgments of life imprisonment against the defendant in each of the charges, rape and burglary, of which the defendant has been found guilty by the jury.

'Upon the foregoing findings of fact and conclusions of law, IT IS, THEREFORE, HEREBY ORDERED, in conformity with the judgment of the Supreme Court of the United States in this cause, and as accord with right and justice and the Constitution and laws of the United States and the Constitution and laws of North Carolina, that the defendant, Albert Bobby Childs, be sentenced to life imprisonment in Docket 65--424--Rape and Docket 65--425--first degree burglary; that following the imposition of said sentences, the clerk of this court shall issue commitments thereupon and the sheriff of Buncombe County shall forthwith transport the defendant to Raleigh, North Carolina, and place him in the custody of the North Carolina Department of Corrections at Central Prison pursuant to said commitments.'

Judgments of life imprisonment were thereupon entered in accordance with these conclusions. Defendant objected to the signing and entry of the judgments, gave notice of appeal, and James E. Ferguson, II, was appointed to represent defendant on appeal to the Supreme Court of North Carolina.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Jacob L. Safron for the State.

Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, Charlotte, for defendant appellant.

MOORE, Justice.

In State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969); State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970); State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); and State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971), this Court found no error of law which would justify granting the defendants new trials or in vacating or modifying the judgments imposing the death sentence.

In each of these cases petition for writ of Certiorari to the Supreme Court of North Carolina was filed in the United States Supreme Court. That Court on 28 June 1971 entered the following order in each case:

'June 28, 1971. On petition for writ of certiorari to the Supreme Court of North Carolina. Motion for leave to proceed In forma pauperis granted. Petition for writ of certiorari granted. Judgment, insofar as it imposes the death sentence, reversed. United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968); Pope v. United States, 329 U.S. 651, 20 L.Ed.2d 1317, 88 S.Ct. 2145 (1968), and case remanded to the Supreme Court of North Carolina for further proceedings. Mr. Justice Black dissents.'

On 23 July 1971 the order and mandate of the United States Supreme Court was issued to the Supreme Court of North Carolina, and this Court upon remand filed opinions on 7 September 1971 in each of those cases. The opinion in State v. Hill, 279 N.C. 371, 183 S.E.2d 97 (1971), is typical:

'Pursuant to the mandate of the Supreme Court of the United States, this cause is remanded to the Superior Court of Edgecombe County with directions to proceed as follows:

'1. The presiding judge of the Superior Court of Edgecombe County will cause to be served on the defendant, Marie Hill, and on her attorneys of record, notice to appear during a session of said superior court at a designated time, not less than ten days from the date of the order, at which time, in open court, the defendant, Marie Hill, being present in person and being represented by her attorneys, the presiding judge, based on the verdict of guilty of murder in the first degree returned by the jury at the trial at the December 16, 1968 Criminal Session, will pronounce judgment that the defendant, Marie Hill, be imprisoned for life in the State's prison.

'2. The presiding judge of the Superior Court of Edgecombe County will issue a writ of Habeas corpus to the official having custody of the defendant, Marie Hill, to produce her in open court at the time and for the purpose of being present when the judgment imposing life imprisonment is pronounced.

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