Moorer v. South Carolina Brief for Appellees

    BRIEF FOR APPELLEES

IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 10,526

LOUIS MOORER, Appellant, 

versus
STATE OF SOUTH CAROLINA and 
ELLIS C. MagDOUGALL, Appellees

Appeal from the United States District Court for the 
District of South Carolina, Columbia Division

DANIEL R. McLEOD, 
Attorney General,

r  I L E D E. N. BRANDON,
Assistant Attorney General,

MAY 9 - (966
Wade Hampton State Office

Building,
M A U R IC E  S. D E A N

Columbia, South Carolina,
CLERK JULIAN S. WOLFE,

Solicitor, First Judicial Circuit, 
Orangeburg, South Carolina, 
Attorneys for Appellees.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Statement of the C ase..................................................  1

Questions Presented ...................................................... 3

Argument:
I. The district court committed no error in re­

fusing to admit into evidence certain statistics 
gathered by appellant concerning the commission 
of crimes by others, as such statistics were totally
irrelevant to any issue raised by this appeal.........  3

II. The district court committed no error in 
finding that the death penalty for rape does not 
constitute cruel and unusual punishment..............  6

III. The district court properly denied appel­
lant relief on the ground that certain alleged prej­
udicial testimony was adduced in the trial court 
concerning a statement made by appellant, where 
such statement was not admitted into evidence and
its voluntariness was not ruled upon......................  7

Conclusion .....................................................................  10

( i )



BRIEF FOR APPELLEES

IN THE

United States Court of Appeals
FOE THE FOTTETH CIRCUIT

No. 10,526

LOUIS MOORE E, Appellant, 

versus

STATE OF SOUTH CAROLINA and 
ELLIS C. MacDOUGALL, Appellees

Appeal prom the United States District Court for the 
District of South Carolina, Columbia Division

STATEMENT OF THE CASE
Appellant was convicted of rape on April 4, 1962, in 

the Court of General Sessions for Dorchester County and 
sentenced to death. The Supreme Court of South Carolina 
affirmed the conviction on January 21, 1963, reported as 
State v. Moorer, 241 S. C. 487, 129 S. E. (2d) 330. Appel­
lant served notice of intention to petition the Supreme 
Court of the United States for a Writ of Certiorari and 
was granted a stay of execution to perfect this petition. 
Instead of perfecting the petition for a Writ of Certiorari, 
appellant abandoned his appeal to the United States Su­
preme Court and filed a petition for a Writ of Habeas 
Corpus on May 14, 1963. This petition was denied after a



full hearing on May 17,, 1963, and appellant served notice 
of appeal to the Supreme Court of South Carolina. At a 
subsequent hearing to settle the record on appeal, the pre­
siding judge, with the consent of all parties, directed that 
another hearing be held to determine if appellant had been 
given a preliminary hearing prior to tins trial, since he had 
attempted to incorporate certain exceptions relating to a 
preliminary hearing. This supplemental hearing was held 
on August 30, 1963, following which the presiding judge 
issued an order holding that appellant had established no 
further grounds for the issuance of a Writ of Habeas 
Corpus. Appellant’s appeal from both orders to the Su­
preme Court of South Carolina resulted in the affirmance 
thereof on March 30, 1964. Moorer v. State, 244 S. C. 102, 
135 S. E. (2d) 713, Certiorari denied 379 U. S. 860.

Appellant tiled a petition for writ of habeas corpus 
and stay of execution in United States District Court on 
November 30, 1964, which stay was granted December 1,
1964. Appellant filed an amended petition on March 10,
1965, requesting the stay be continued while he returned 
to the state court. This request was granted on March 12, 
1965, but jurisdiction was relinquished and the stay vacated 
on April 13, 1965. The Supreme Court of South Carolina 
denied appellant’s application for a stay and overruled 
all his contentions of error in a well considered order on 
May 11, 1965. Moorer v. MacDougall, 245 S. C. 633, 142 
S. E. (2d) 46.

Thereafter appellant returned to the district court, but 
his petition was overruled and a stay denied. On May 13, 
1965, Chief Judge Haynsworth issued a stay of execution 
pending appeal. On June 23, 1965, the Court of Appeals 
vacated and remanded the judgment of the district court 
for a hearing and a review of the state decisions. Moorer

2 Moorer, Appellant, v. State of S. C. et al., Appellees



v. State of South Carolina, 347 F. (2d) 502. The district 
court denied relief to appellant on January 3, 1966.

QUESTIONS PRESENTED
I. Whether the district court committed error in re­

fusing to admit into evidence certain statistics gathered by 
appellant concerning the commission of crimes by others.

II. Whether the district court committed error in find­
ing that the death penalty for rape does not constitute cruel 
and unusual punishment.

III. Whether the district court properly denied ap­
pellant relief on the ground that certain testimony was ad­
duced in the trial court concerning a statement made by 
appellant, where such statement was not admitted into evi­
dence, and its voluntariness was not ruled upon.

ARGUMENT

I
The District Court Committed No Error in Refusing 

to admit Into Evidence Certain Statistics Gathered by Ap­
pellant Concerning the Commission of Crimes by Others, as 
Such Statistics Were Totally Irrelevant to any Issue Raised 
by this Appeal.

Appellees will use the designation of appellant in cit­
ing from the various proceedings. The transcript of trial 
proceedings in the Court of General Sessions for Dorches­
ter County will be cited as S.C.T..........The transcript of
habeas corpus proceedings in the Court of Common Pleas 
for Richland County will be cited as S.C.H......... The tran­
script of the habeas corpus proceeding on August 18, 1965, 
in the United States District Court will be cited as U.S. . . .

Judge Hemphill, in his order denying appellant relief 
(U.S. 49), refused to admit the proffered statistics on the

Moorer, Appellant, v. State of S. C. et al., Appellees 3



grounds that they were hearsay, which they clearly were 
and also on the ground that they were “not proper to the 
cause”. This was a clear ruling that suchjp*nffered statis­
tics were irrelevant. If they are irrelevant, and appellees 
submit that they are, then they arU-Tmt- adin issible, no mat­
ter how reliable they may be and no matter whether they 
might be admissible as an exception to the hearsay rule.

The point raised here is really very simple, and should 
be simply treated. Under South Carolina law a defendant 
has absolutely no right to mercy in a rape case. State v. 
Worthy, 239 S. C. 449, 123 S. E. (2d) 835. It is purely a 
matter of grace which may be extended by the jury for any 
reason or for no reason at all. This was properly charged 
by Judge Griffith at the trial (S.C.T. 86). In order to de­
termine why mercy was or was not recommended it would 
be necessary to interrogate the members of the jury. This 
cannot be inquired into, as it would destroy the inviolabil­
ity of the jury room. The Supreme Court of South Caro­
lina clearly recognized this and so stated in Moorer v. Mac- 
Dougall, 245 S. C. 633, 142 S. E. (2d) 46.

The United States Court of Appeals for the Eighth 
Circuit in Maxwell v. Stephens, 348 F. (2d) 325, cert, denied 
382 U.S. 944, 15 L. Ed. (2d) 353, cuts to the heart of this 
matter. It recognizes that appellant’s theory, if followed 
to its ultimate conclusion, would make the prosecution of a 
Negro for rape impossible, and would effect discrimination ft' 
in reverse. It is a legal merry-go-round without substance, i/* 
Suppose appellant were to prevail under this theory and 
the prosecution of Negro rapists no longer was allowed. 
Could not then a white man argue that the law was being 
discriminatorily enforced against him and he could not be 
prosecuted!

The Supreme Court of the United States denied cer­
tiorari in Swam v. Alabama at the same time it denied cer-

4 Moorer, Appellant, v . State op S. C. et al., Appellees



5

ftiorari in Maxwell. On March 29, 1966, it denied certiorari 
in Craig v. Florida, 179 So. (2d) 202, 34 Law Week 3332. 
Maxwell, Swain, and Craig involved substantially the same 
contentions advanced by appellant. With three denials of 
certiorari in the same term, it would appear that the Su­
preme Court looks with scant favor on such contentions.

, £ j M qoeee, A ppellant, v. State of S. C. et a l, A ppellees

Appellant’s contention was before the Supreme Court 
of Florida many years before Craig. State ex rel. Johnson 
v. Mayo, 69 So. (2d) 307; State ex rel. Copeland v. Mayo, 
87 So. (2d) 501; Thomas v. State, 92 So. (2d) 621.  ̂In 
Thomas that court remarked that such statistics, if they 
show anything, show that more Negroes have been tried 
and convicted for rape than have white defendants.

“■’~EvCTdnWaHeB'~wlre're’discriminatory selection of juries 
can be shown in prior years a present conviction is not 
nullified if the current selection is proper. Brown v. Allen, 
344 U.S. 443, 97 L. Ed. 469.

Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220, and 
cases of similar import cited by appellant, are not appli­
cable here. No contention has been made that the law 
against commiting rape is not enforced equally against all 
rapists. If the police arrested only Negro rapists the situa­
tion would be comparable to Yick Wo v. Hopkins. Appellant 
is attempting to inquire into why a jury takes a certain 
action in a case or cases which have no bearing on his own 
case. No inquiry can be directed thereabout.

A defendant is entitled to non-discriminatory selection 
of jurors. After he gets that, he can’t delve into their 
actions. Each case stands on its own.

This case is not unlike those cases in which one Negro has 
killed another Negro. It is common knowledge that in many 
such cases the defendant has gotten off lighter than he 
should have. Under appellant’s theory, could it not be



said that the first Negro to receive the death penalty for 
killing another Negro has been discriminated against?

6 M oorer, A ppellant, v . State of S. C. et al., A ppellees

II
The District Court Committed No Error In Finding 

That The Death Penalty For Rape Does Not Constitute 
Cruel And Unusual Punishment.

This contention was made in Maxwell, Swain, and 
Craig, supra, and the Supreme Court of the United States 
denied certiorari in all three instances. As is well known, 
the court first rejected the contention in Rudolph v. Ala­
bama, 375 U. S. 889, 11 L. Ed. (2d) 119. As is equally well 
known, this court in Ralph v. Pepersack, 335 F. (2d) 128, 
certiorari denied 380 IT. S. 925, also rejected such conten­
tion.

/ Appellant concedes that the death penalty for rape, 
under the decisions, does not constitute cruel and unusual 
punishment in those jurisdictions where no provision is 
made for the jury to recommend the defendant to the mercy 
of the court. How then could it constitute cruel and unusual 
punishment in thise jurisdictions which permit the jury to 
recommend mercy, and thereupon impose a lesser judg­
ment ? Which jurisdiction is more favorable to a defendant ? 
It is difficult to see how anything could be fairer than to 
allow the jury to recommend mercy in its discretion. State 
v. Worthy, supra.At is impossible to j ->ee how a stra ight 

rape caideath penalty for rape can becmisSEjiiQiiflllv ptyrmissihlo
and a provision for mercy impermissible, j

A defendant has no right to mercy, as is stated in 
Worthy. Consequently he has no right to present evidence 
which would warrant mercy. There is thus no conflict be­
tween such claimed right and his Fifth Amendment right 
not to incriminate himself. By way of illustration, however, 
there is no bar to asserting matters meriting mercy through



non-incriminatory witnesses. Appellant here sought to do 
so by having his grandmother testify that appellant did 
not act normal and was a slow learner. S. C. T. 38-41

The matter for the jury’s consideration is really very 
simple. They must decide if the defendant is guilty or 
innocent, and if they decide that he is guilty they must de­
cide whether or not to recommend mercy. All they need to 
make these decisions can be placed before them during the 
trial. The amount of force used and the physical harm 
done to the victim is inescapably brought out.

It is only when mercy is recommended that a serious 
inquiry into circumstances of mitigation or aggravation is 
necessary. At that time the defendant and the State can 
offer such circumstances as they wish. State v. Kimbrough, 
212 S. C. 348, 46 S. E. (2d) 273. The court can then sentence 
the defendant within the limits of the statute.

I l l
The District Court properly denied appellant relief on 

the ground that certain alleged prejudicial testimony was 
adduced in the trial court concerning a statement made by 
appellant, where such statement was not admitted into evi­
dence and its voluntariness was not ruled upon.

Appellant’s contention that testimony that he had made 
a voluntary statement soon after his arrest was prejudicial 
because it strongly suggested that he had voluntarily con­
fessed is without factual support. Two witnesses, the sheriff 
and a deputy, testified that a statement was given. S.C.T. 
30-34. There is not the slightest indication that the state­
ment was either incriminatory or exculpatory. It was not 

Admitted into evidence and did not become an issue in 
the case.

Appellant was represented by able counsel at his trial, 
'..-and no request for an instruction to disregard any refer-

Moorer, Appellant, v. State of S. C. et al., Appellees 7



8 M oorer, A ppellant, v . State of S. C. et a l, A ppellees
ence to a statement was made, and no motion for a mistrial 
was made. Appellant did not object to questions about the 
statement on the ground that it was not voluntary. The only 
testimony was to the effect that it was voluntary; there 
was no testimony as to its contents.

In State v. Robinson, 238 S. C. 140, 119 S. E. (2d) 671, 
testimony was elicited concerning a voluntary confession; 
later the State, after objection, withdrew the tendered ex­
hibit. The trial judge instructed the jury to disregard the 
statement. A new trial was denied and the Supreme Court 
of South Carolina affirmed.

Appellant here was represented by able counsel in his 
petition for a writ of habeas corpus in the Eichland County 
Court of Common Pleas. Moorer v. State, 244 S. C. 102, 
135 S. E. (2d) 713, certiorari denied, 379 U. S. 860. This 
contention could tan^^een made there but was not, and 

jfc Tm <mm+ion, the Supreme Court

it searched the record in 
appellant’s original appeal and found no error. That Court 
considered such determination to be binding on appellant.

This case is not controlled by Jackson v. Pernio. 378 
U. S. 368, 12 L. Ed. (2d) 908, since”tlm~statement was not 
aHnuTEM into evidence, and there was no issue of voluntari­
ness to be considered by the jury. It thus does not run 
afoul of Jackson.

Since Jackson was decided after the instant case was 
tried, there was no way its holding could be applied. The 
trial court followed what at that time was approved pro­
cedure.

Appellant makes much of being faced with a cruel 
dilemma. At his trial he could have moved for a mistrial, 
and if it had been demiedTT^
question on appeal. He could have requested an instruction

MacDougall, 245 S. C.



that the jury be told to disregard any reference to a state­
ment. South Carolina law (Section 17-513.1, 1962 Code) 
provides that the jury shall be excused and counsel and 
litigants shall be given the opportunity to express objections 
to the charge or to request the charge of additional propo­
sitions made necessary by the charge. This requirement 
was strictly followed by the trial judge S.C.T. 86. The 
appellant requested no additional proposition to be charged.

When the matter of a statement was first approached 
by the State, the appellant could have objected and re­
quested that the matter be considered out of the presence 
of the jury. This he did not do. It is not incumbent upon 
the prosecution to represent both the State and the de­
fendant. A criminal prosecution is still an adversary pro­
ceeding. Appellant has sought to preserve every vice, take 
his chances upon a verdict, and then assert those vices. 
This is proscribed by Robinson, supra.

Appellees submit that no prejudice resulted to appel­
lant from such testimony, and that any right to further 
object has been waived.

Moorer, Appellant, v. State op S. C. et a l ,  Appellees 9



CONCLUSION
For the foregoing reasons, the judgment of the dis­

trict court should be affirmed and the cause remanded for 
the execution of the judgment by the Supreme Court of 
South Carolina.

Respectfully submitted,
DANIEL R. McLEOD,
Attorney General,
E. N. BRANDON,
Assistant Attorney General,
Wade Hampton State Office 

Building,
Columbia, South Carolina,
JULIAN S. WOLFE,
Solicitor, First Judicial Circuit, 
Orangeburg, South Carolina, 
Attorneys for Appellees.

10 M oorer, A ppellant, v . State of S. C. et al., A ppellees