State v. Roseboro

• Decision Date: 30 January 1970
• Docket Number: No. 25,25
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Louis ROSEBORO.

Page 886

171 S.E.2d 886

276 N.C. 185

STATE of North Carolina v. Robert Louis ROSEBORO.

No. 25.

Supreme Court of North Carolina.

Jan. 30, 1970.

Robert Morgan, Atty. Gen., Burley B. Mitchell, Jr., Raleigh, Staff Atty., for the State.

Chambers, Stein, Ferguson & Lanning, by J. LeVonne Chambers and James E. Ferguson, II, Charlotte, for defendant.

HIGGINS, Justice.

The defendant, through his able and experienced counsel, by many objections and exceptions, has challenged the validity of the indictment, the trial, the verdict, and the sentence. The challenge to the indictment was based upon these grounds: (1) The grand jury in Cleveland County which returned the indictment was unlawfully constituted in that members of the defendant's economic class and race were systematically excluded from the jury list; (2) That a charge of murder in the first degree, carrying the death penalty, is cruel and unusual punishment and violates the defendant's constitutional rights; (3) That G.S. § 14--17, which provides the penalty of death for murder in the first degree, and G.S. § 15--162.1, in effect at the time of the alleged offense (but later repealed), required the defendant to risk his life in order to exercise his right to a jury trial; (4) That the statute which gives the jury the right to recommend life imprisonment violates the defendant's constitutional rights in that no rules or standards are fixed by which the jury may be guided in determining whether to recommend life imprisonment.

The indictment was returned by a grand jury from Cleveland County. According to the evidence and the court's findings, the grand jury was properly constituted. Actually, approximately 50% Of its members were of the defendant's race. There is no evidence with respect to the economic status of the members of the grand jury or of the defendant, other than the evidence and finding that all members of the jury were employed except one who was retired. The motion to quash the indictment on the first ground is not sustained. The other grounds assigned in the motion to quash are hereafter discussed in connection with the defendant's other objections and exceptions.

The defense counsel moved for a change of venue upon the ground of extensive and unfavorable publicity, not only in Cleveland County, but also in the adjoining counties of Gaston and Rutherford. In lieu of an order of removal, the court, as authorized by G.S. § 9--12, ordered that a jury be summoned from the adjoining county of Burke. An original and two additional writs of venire facias were issued and returned. The defendant challenged the array of veniremen brought in under the authority of each writ. The ground of the challenge was that members of the defendant's economic class and race were systematically excluded from the jury list in Burke County. The court conducted a detailed inquiry, and upon proper evidence, found that 6 to 8% Of the total population of Burke County were members of the defendant's race. The inquiry disclosed that the special veniremen were impartially selected from a properly compiled jury list. Actually, two members of the colored race were summoned on the original venire, three on the first additional venire, and two on the second additional venire. The record does not disclose with certainty how many veniremen actually reported in obedience to the writs.

In the actual selection of the trial jury, the court permitted attorneys both for the State and for the defendant to explore in detail the background and fitness of each venireman to serve on the jury. The examinations followed the North Carolina practice and custom. Each venireman was individually sworn to make true answers to the court or anyone under its direction on matters touching his fitness to serve as a juror. The record of the examinations by the solicitor and defense counsel, and by the court, are fully set out. The examinations and findings leading to the selection of the jury appear on 416 pages of the trial record. Members of the colored race were passed by the court as qualified to sit on the trial panel. The record shows that some of these, possibly all, were removed by peremptory challenge after their fitness to serve had been found by the court. The State did not exceed its number of peremptory challenges.

The jury selection conformed to the pattern approved by both State and Federal decisions. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Spence & Williams, 274 N.C. 536, 164 S.E.2d 593; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897. The record fails to disclose any violation of defendant's constitutional rights in the selection of the trial jury. The court's finding to that effect is sustained by the evidence.

To avoid misunderstanding, we call attention to the form of questions propounded to prospective jurors by counsel for the defendant, by the solicitor for the State, and occasionally by the court, concerning the venireman's attitude regarding the recommendation which the jury may make with respect to punishment in the event a guilty verdict had been agreed upon. Here is a question from the record: 'Would you exercise an independant determination yourself, irrespective of how the other jurors felt on the matter of mercy or no mercy?' Here is a typical question: 'If your verdict is guilty of murder in the first degree, would you consider recommending mercy?' G.S. § 14--17 defines murder in the first degree and upon conviction 'shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury'. The verdict in a criminal case is a basic part of the record proper. It should be correct. We need not speculate what judgment the court could impose if the jury did no more than recommend mercy.

A short summary of the State's evidence offered before the trial jury appears in the statement of facts. We hold the evidence was amply sufficient to make out a case of murder in the first degree and to sustain a verdict of guilty as charged. The defendant did not offer evidence. The court charged the jury to return one of four permissible verdicts: (1) Guilty of murder in the first degree; (2) Guilty of murder in the first degree with the recommendation that the punishment shall be imprisonment for life in the State's prison; (3) Guilty of murder in the second degree; (4) Not guilty.

The defendant, in addition to the grounds assigned in the motion to quash the indictment, contends the court committed error by failing to charge that the evidence permitted the jury to return a verdict 'guilty of manslaughter'. Evidence of manslaughter is lacking. The crime is defined as the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492, 124 S.E.2d 174; State v. Foust, 258 N.C. 453, 128 S.E.2d 889; State v. Benge, 272 N.C. 261, 158 S.E.2d 70.

The evidence permitted the jury to find the defendant had inflicted numerous 'club' wounds on his victim's head, four deep stab wounds in the chest, and one in the abdomen. These brutal wounds were inflicted on a helpless woman alone in her shop. The defendant was discovered in the shop armed with a pistol, attempting to hide, and when forced out by tear gas, he had in his pocket the victim's keys to the store doors and to the cash register. He also had in his pocket the victim's cigarette lighter. He had blood on his pockets and on his clothing. The sun glasses which he had bought less than two hours before were found under the victim's clothes in the bathroom. The disarray of the clothing would admit a finding the victim was forced to disrobe. The sun glasses and the knife were with the clothes. Any reasonable interpretation of the evidence permits a finding that the defendant did the killing with malice, after premeditation and deliberation (State v. Walters, 275 N.C. 615, 170 S.E.2d 484), and in the perpetration or attempt to perpetrate a felony (State v. Hill, supra; Atate v. King, 226 N.C. 241, 37 S.E.2d 684. Evidence of manslaughter or anything from which manslaughter might be inferred is absent. State v. Ruth, supra; State v. Hill, supra; State v. Atkinson, supra.

For the correct rule with respect to proof by circumstantial evidence, see State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

This Court, in many cases, has held valid the provision that the jury, after finding guilt of a capital felony, may return as a part of its verdict, a recommendation that the punishment shall be imprisonment for life in the State's prison. The court must impose the life sentence, and no other. The cases also hold that absent a recommendation, the court must impose the death sentence. Reasons for the holding are set forth in detail in State v. Peele, supra; State v. Spence & Williams, supra; State v. Atkinson, supra; State v. Hill, supra; State v. Ruth, supra. We adhere to the decisions for the reasons fully stated in the opinions.

We think the General Assembly of 1949, which inserted the provision, intended to give the jury the unencumbered and unconditional right to make the recommendation. The purpose was to permit the jury, after hearing all the evidence, to determine whether the State would take or spare the life of the accused. We see no more objection to giving this power to the jury than to require it to decide between murder in the first degree and murder in the second degree. The former takes--the latter spares--the life of the accused. After guilt in a capital case has been established by the jury, its recommendation as to punishment does not violate the defendant's...