State v. Sanders, No. 43

Citation276 N.C. 598,174 S.E.2d 487
Decision Date12 June 1970
Docket NumberNo. 43
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Perry SANDERS.

Atty. Gen. Robert Morgan, and Staff Atty. Donald M. Jacobs, Raleigh, for the State.

Carroll F. Gardner, Mt. Airy, for defendant appellant.

MOORE, Justice.

Defendant's first assignment of error challenges the single-verdict procedure followed by North Carolina in capital cases. He contends he is entitled to a bifurcated jury trial with one jury determining the guilt or innocence and the other fixing the punishment. Our statute, G.S. § 14--17, provides:

'A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and 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. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State's prison.'

This Court has consistently upheld the single-verdict procedure established by this statute. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Peele, 274 N.C. 106, 161 S.E.2d 568, cert. den. 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590 (1969); State v. Spence and Williams, 274 N.C. 536, 164 S.E.2d 593. And Federal courts hold that this procedure does not violate due process or infringe upon defendant's constitutionally guaranteed right of silence. Segura v. Patterson, 402 F.2d 249 (10th Cir., 1968); and Sims v. Eyman, 405 F.2d 439 (9th Cir., 1969). In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Supreme Court of the United States said: 'Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure.'

Counsel for defendant in his brief very frankly conceded this assignment to be without merit unless the United States Supreme Court should overrule our present practice by its decision in the case of Maxwell v. Bishop, 398 F.2d 138 (8th Cir., 1968), cert. granted December 16, 1968, 393 U.S. 997, 89 S.Ct. 488, 21 L.Ed.2d 462, pending in that Court at the time defendant filed his brief. Maxwell involves Arkansas' statutes containing provisions similar to those in our North Carolina statutes. In allowing Certiorari the Supreme Court of the United States limited considerations to questions 2 and 3 of the petition for Certiorari, viz:

'2. Whether Arkansas' practice of permitting the trial jury absolute discretion, uncontrolled by standards or directions of any kind, to impose the death penalty violates the Due Process Clause of the Fourteenth Amendment?

'3. Whether Arkansas' single-verdict procedure, which requires the jury to determine guilt and punishment simultaneously and a defendant to choose between presenting mitigating evidence on the punishment issue or maintaining his privilege against self-incrimination on the guilt issue, violates the Fifth and Fourteenth Amendments.'

The United States Supreme Court has now spoken in Maxwell. (June 1, 1970) 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221. Without deciding the issues involved, the case was remanded to Federal District Court in Arkansas for a hearing on the exclusion of prospective jurors who had scruples against the death penalty. The same issues raised in Maxwell are still pending before the United States Supreme Court in other cases, but we do not think we should anticipate that that Court will declare unconstitutional a practice approved in many states, including our own, for so many years. This assignment is overruled.

Defendant next assigns as error the overruling of his motion to dismiss the jury for that (1) all Negroes (members of defendant's race) were deliberately excluded, and (2) all jurors who expressed opposition to the death penalty were excused either for cause or peremptorily. The motion sets out that 9 of the first 53 jurors tendered were Negroes, and 6 of these 9 were excused for cause after each had stated he was opposed to capital punishment and would not consider the death penalty. Another was 84 years of age and was excused by the court because of her age, and the two remaining were challenged peremptorily. Defendant had the burden of proof of establishing racial discrimination. State v. Ross, 269 N.C. 739, 153 S.E.2d 469. The absence of Negroes from a particular petit jury is insufficient, in and of itself, to raise a presumption of discrimination. State v. Brown, 271 N.C. 250, 156 S.E.2d 272. Defendant does not have the right to demand that his petit jury be composed in whole or in part of persons of his own race or that there be proportional representation, but only that persons of his race not be intentionally excluded from the jury because of race. State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed and cert. den. in Mallory v. North Carolina, 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965). The court in its discretion properly excused the juror who was 84 years of age, and the remaining 6 Negroes were properly excused for cause because of their belief concerning capital punishment. No cause need be stated for a peremptory challenge. G.S. § 9--21. In the absence of any evidence of racial discrimination, the court correctly overruled this part of defendant's motion.

The defendant further alleges that the six Negro prospective jurors, as well as others, were excused for cause contrary to the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), because they opposed capital punishment. Prior to Witherspoon, it was well established that under the law in North Carolina it was not error to allow challenges for cause by the State to prospective jurors who stated they had 'conscientious scruples against the death penalty' in a case where such penalty might be inflicted pursuant to a verdict of guilty. State v. Atkinson, supra; State v. Spence, 271 N.C. 23, 155 S.E.2d 802, vacated 392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350 (1968); State v. Bumpers (first hearing), 270 N.C. 521, 155 S.E.2d 173, rev'd 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); State v. Childs, 269 N.C. 307, 152 S.E.2d 452. However, in Witherspoon the Court said:

'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty Or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it.

'* * * Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause Simply because they voiced General objections to the death penalty or expressed Conscientious or religious scruples against its infliction.' (Emphasis added.)

Again, in Footnote 21, the Court said:

'We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt.'

The record here discloses no violation of the rule in Witherspoon. The trial court was very careful to see that the solicitor, in examining prospective jurors for the State, adhered strictly to that rule. For example, Ruth E. Williams was excused for cause after he stated:

'I do not believe in capital punishment.

'Q. You don't know of any case in which you might return such a verdict if you were chosen as a juror?

'A. Never.

'Q. You wouldn't do it under any facts or circumstances, no matter how aggravated the case was and no matter what the facts were in the case?

'A. I wouldn't do it. My wife and I discussed it several times before, and I would not do it.

'Q. You've made up your mind about it?

'A. A long time ago.'

C. C. Mertes was excused for cause:

'Q. Do you believe in capital punishment?'

'A. I assume you mean the death penalty.

'Q. Yes sir.

'A. No sir.

'Q. You don't feel that in any case, regardless of what the circumstances are or how aggravated the case was, you would give any consideration to returning a verdict that would involve the death penalty?

'A. I do not.

'Q. Have you thought about this before sir?

'A. Considerably.

'Q. This is not just something that you thought--well, you've thought about this before?

'A. On, yes.

'Q. And you are opposed to it?

'A. I'm opposed to it.

'Q. If you were chosen to sit on this jury, are you saying that you would not give any consideration to returning a verdict which would involve the death penalty?

'A. I would not.

'Q. Under...

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