North Carolina v. Roseboro Defendant Appellant's Brief

    NO. 25 TWENTY-SEVENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term 1969
*******************************

STATE OF NORTH CAROLINA )
v ) From Cleveland

) ----------------
ROBERT LOUIS ROSEBORO )
6S CRO 69 )

* * * * * * *  *

DEFENDANT APPELLANT’S BRIEF 
*******************************



I N D E X
QUESTIONS PRESENTED -------------------- 1

STATEMENT OF THE C A S E ------------------ 3

FACTS-----------------------------------  5

ARGUMENT:
I. The Sentence of death imposed 

upon the defendant pursuant to 
GS 14-17 and GS 15-162.1 (which 
was repealed effective March 
25, 1969) violates the princi­
ples of UNITED STATES v JACKSON—  8 

s'
II. Defendant’s rights secured to 

him by the Sixth and Fourteenth 
Amendments to the Constitution 
of the United States and Article 
I, Sections 13 and 17 of the 
North Carolina Constitution were 
violated in that persons who 
could determine defendant’s guilt 
or innocence, but were unwill­
ing to impose the death penalty 
were not allowed to serve on the 

7 Jury--------------------------- 13
III. The trial court erred by refus­

ing to permit the defendant to 
make a full inquiry into the 
nature and extent of prospec­
tive jurors’ beliefs regarding 
the death penalty and their 
ability to impartially determine
defendant’s guilt or innocence —  25

IV. The trial court erred in deny­
ing defendant’s challenges to 
prospective jurors --------------  29



(ii)
V. The failure of the court to charge 

the jury concerning a possible 
verdict of guilty to manslaughter 
was error-------------------------- 31

VI. The trial court erred in denying 
defendant’s motion for nonsuit 
and motion to set aside the ver­
dict as being contrary to the
weight of the evidence----------- 33

VII. The State’s argument to the jury 
was improper and inflammatory 
and prejudicial to the defendant—  36

VIII. The imposition of the death pen­
alty by a jury with absolute 
discretion, uncontrolled by 
standards or directions of any 
kind, to impose the death pen­
alty violates the due process 
clause of the Fourteenth Amend­
ment -------------------------------40

If. The North Carolina split verdict 
procedure requires the jury in a 
capital case to determine guilt 
and punishment simultaneously 
and a defendant to choose between 
presenting mitigating evidence on 
the punishment issue or maintain­
ing his privilege against self­
incrimination on the guilt issue 
violates the Fifth and Fourteenth 
Amendments------------------------- 46

X. The imposition of the death sen­
tence upon Robert Roseboro, a 
sixteen-year old youth, would 
constitute cruel and unusual 
punishment------------------------ $7



(iii)
XI. Defendant’s indictment by a grand 

jury and trial by a petit jury 
from which members of his race 
and economic class were arbi­
trarily and systematically limited 
and excluded violated defendant’s
rights under the Sixth and Four­
teenth Amendments---------------- 60

XII. The trial court erred in denying 
defendant’s motion for a change 
of venue-------------------------- 6l

XIII. The trial court erred by admit­
ting into evidence certain ex­
hibits of the State which were 
incompetent, immaterial, inflam­
matory and prejudicial to the 
defendant------------------------- 62

XIV. The trial court erred by admit­
ting into evidence over defen­
dant's objection the testimony 
of State's witnesses which was 
incompetent, irrelevant, imma­
terial, inflammatory and preju­
dicial to the defendant---------- 63

XV. The trial court erred by requir­
ing counsel appearing for the 
defendant to alternate with 
counsel for the State in present­
ing arguments to the j u r y ------- 63

CONCLUSION-----------------------------  64



AUTHORITIES CITED
(iv)

Alford v State of North Carolina, F 2d 
(4th Cir 1969)

Andrews v United States, 373 US 334, 336-337 
(1963)

Arnold v North Carolina. 385 US 773,(1964)
Behrens v United States, 312 F 2d 223 (7th 

Cir 1962) aff’d 375 US 162 (1963)
Berger v United States, 295 US 79, L ed 

1314
Bouie v Columbia, 378 US 347, 12 L ed 2d 894 
Bruton v United States, 391 US 123 (1968)
Burgess v Salmon, 97 US 381, 24 L ed 4O4 
Calder v Bull, 3 Dali 386, 1 L ed 648 
Cline v Frink Dairy Co, 247 US 445 (1927)
Coleman v United States, 334 F 2d 558, 566 

(DC Cir 1964)
Connally v General Construction Co, 269 US 

385 (1926)
Couch v United States, 234 F 2d 
Cox v Louisiana, 379 US 536 (1965)
Crawford v Bounds, 395 F 2d 297 (1968)
Cummings v Missouri, 4 Wall 2777, 18 L ed (

366
Dombrowski v Pfister, 380 US 479 (1965)
Eubanks v Louisiana, 356 US 584 (1958)
Fay v New York, 332 US 261, 91 L ed 2043 

(1947)
Fay v Noia, 372 US 391, 440 (1963)
Ferguson v Georgia, 365 US 570 (1961)
Fontaine v California, 390 US 593, 20 L ed 

2d 154
Frady v United States, 348 F 2d 84, 91 n 1 

(DC Cir 1965) (McGowan, Jr.)
Freedman v Maryland, 38O US 51, 56 (1965)
Gadsden v United States, 223 F 2d 627 

(DC Cir 1955)
Gideon v Wainwright, 372 US 335, 9 L ed 2d 799 
Giles v Maryland, 386 US 66, 16 L ed 2d 737 
Giacco v Pennsylvania, 382 US 399 (1966)
Green v United States, 365 US 301, 3O4 (1961) 

(Opinion of Mr. Justice Frankfurter)
Green v United States, 313 F 2d 6 (1st Cir 

(1963) Cert denied 372 US 951 (1963)



(v)
Griffin v California, 3$0 US 609 (1965) 
Hamilton v Alabama, 376 US 650, 11 L ed 2d 

979, reversing 275 Ala 576, 156 SO 2d 926 
Hernandez v Texas, 347 US 475 (1954)
Herndon v Lowry, 301 US 242, 263 (1937)
Hill v United States, 360 US 424, 423-429(1962)
Hudson v Georgia, 10$ Ga App 192, 132 SE 2d 

50$ (1963)
In re Anderson, Cal 2d 477 P 2d 117, 73 Cal 

Rptr 21 (1963)
Jackson v Denno, 37$ US 36$ (1964)
Jenkins v United States, 249 F 2d 105 (DC 

Cir 1957)
Kring v Missouri, 107 US 221, 27 L ed 506 
Lindsey v Washington, 301 US 397, $1 L ed 

1132
Lovely v United States, 360 US 310 (1959) 
Louisiana v United States, 3$0 US 145 (1965) 
Irwin v Dowd, 366 US 717 (1961)
McConnell v Rhay, 37 US L Week 3131 (US 

10-4-63)
Mempa v Rhay, 3$9 US 12$ (1967)
Malloy v Hogan, 37$ US 1 (1964)Miller v Pate, 3$6 US 1, 17 L ed 2d 690 
Minnesota v Coursolle, 255 Minn 3$4, 97 NW 

2d 472 (1959)
Norris v Alabama, 294 US 5$7 (1935)
NAACP v Button, 371 US 415, 432-433 (1963) 
Patton v Mississippi, 332 US 463 (1947) 
People v Hines, 61 Cal 2d 164, 390 P 2d 

39$, 37 Cal Rptr 622 (1964)
People v Love, 53 Cal 2d $43, 350 P 2d 705 

(I960)
Pierre v Louisiana, 306 US 354 (1939)
Potter v Oklahoma, 217 P 2d 844 (1950)
Pope v United States, 392 US 65I 
Re; Medley, 134 US 160, 33 L ed $35 
Re; Savage, 134 US 176, 33 L ed 842 
Robinson v California, 370 US 660 (1962) 
Sheppard v Maxwell, 3$4 US 333, 16 L ed 2d 

600
Smith v Texas, 311 US 12$, 130 (1940)
Specht v Patterson, 3$6 US 605 (1967)
Skinner v Oklahoma, 316 US 535 (1942)
Spano v New York, 36O US 315, 3 L ed 2d 

(Separate Opinion of Justice Douglas)



(vi)
Smith v Cahoon, 283 US 552 (1931)
Simmons v United States, 390 US 377, 394 

(1968)
State v Atkinson, 275 NC 288 
State v Broadway, 157 NC 598, 72 SE 987 
State v Childs, 269 NC 307 
State v Cutler, 271 NC 379, 156 SE 2d 679 
State v Coffey, 44 SE 2d 886 
State v DeGraffenreid, 223 NC 461, 27 SE 2d 

130 (1943)
State v Foust, 258 NC 453» 128 SE 2d 889

(1963)
State v Foster, 2 NC APP 109, 162 SE 2d 583 

(1968)
State v Hawley, 229 NC 167, 48 SE 2d 35 (194#) 
State v Marie Hill, (not yet decided)(Fall 

Term 1969, No. 28)
State v Hendrick, 232 NC 447, 61 SE 2d 349 
State v Holland, 234 NC 354, 67 SE 2d 272 
State v Lowry, 263 NC 536, 139 SE 2d 536 

(1965)
State v Manning, 251 NC 1, 110 SE 2d 474 

(1959)
State v McMillan, 233 NC 630, 65 SE 2d 212 
State v Langlois, 258 NC 491, 12 SE 2d 803 
State v Miller, 271 NC 646, 157 SE 2d 335 

(1967)State v Pope, 252 NC 356, 113 SE 2d 584 
State v Prince, 182 NC 788, 108 SE 330 
State v Porth, 269 NC 329, 153 SE 2d 10 

U967)State v Peele, 274 NC 106, 161 SE 2d 568 
State v Spence (hearing on remand) 274 NC 

536, 164 SE 2d 593, at 549 (dissenting 
opinion)

State v Vick, 132 NC 995
State v Wilson, 262 NC 119, 137 SE 2d 109

(1964)
State v Wheeler, 261 NC 651, 135 SE 2d 669 

(1964)
State v Wright, 274 NC 380 (1968)
State v Yoes, 271 NC 6l6 (1967)
Townsend v Burke, 334 US 736 (1948)
Trop v Dulles, 356 US 86, 101 (1958)
Tigner v Texas, 310 US 141, 148-149 (1940)



(vii)
Thompson v Utah, 170 US 343» 42 L ed 1061 
United States v Beno, 324 F 2d 582 (2d Cir

1963)
United States v Curry, 358 F 2d 904, 915 (2d 

Cir 1965)
United States ex rel Rucker v Myers, 311 F 2d 

311 (3rd Cir 1962) cert denied, 374 US 844 
(1963)

United States ex rel Scoleri v Banmiller,
310 F 2d 720 (3rd Cir 1962) cert denied 
374 US £28 (1963)

United States v Hall, 6 Cranch 171? 3 L ed 189 
United States v Jackson, 390 US 570 (1968) 
United States v National Dairy Prods Corp,

372 US 29, 36 (1963)
United States v Johnson, 315 F 2d 714 (2d 

Cir 1963) cert denied, 375 US 971 (1964) 
Viereck v United States, 318 US 236, 87 L ed 

734
Weems v United States, 217 US 349, 378 (1910) 
Whitus v Balkcom, 333 F 2d 496, 499 (5th Cir

1964)
Whitus v Georgia, 385 US 545, 17 L ed 2d 599 

(1967)
Winters v New York, 333 US 507 (1948) 
Witherspoon v Illinois, 391 US 510 (1968) 
Williams v New York, 337 US 241, 247 (1949) 
Williams v Oklahoma, 358 US 585 (1959)
BOOKS
American Law Institute, Model Penal Code,

Tent Draft No. 9 (May 8, 1959), comment 
to sections 201.6 at 74-76? Section 210.6 
(POD, May 4 , 1962) pp 128-132 

Handler, Background Evidence in Murder Cases,
51 J Crim L Crim & Pol Sci 317, 321-327(I960)

H.L.A. Hart, Murder and the Principles of 
Punishment: England and the United States,
52 Lw U L Rev 433, 438-439 (1957)

House of Commons Select Committee on Capital 
Punishment, Report (HMSO 1930), para 177 

Knowlton, Problems of Jury Discretion in 
Capital Cases, 101 U Pa L Rev 1099, 1109, 
1135-1136 (1953)



(viii)
Lewis, The Sit-In Gases; Great Expectations 

1963 - Supreme Court Review 101, 110;
Note, 109, U Pa L Rev 6 7, 90 (I960)

Leisel, Some Data on Juror Attitudes Towards 
Capital Punishment 7-8 (Center for Studies 
in Criminal Justice, University of Chicago 
Law School, 1968)

National Prisoner Statistics, No. 4 2, Execu­
tions 1930-1967 (June 1968), p 7 

New York State Temporary Commission on Revi­
sion of the Penal Law and Criminal Code, 
Interim Report (Leg Doc 1963, No. 8)(Feb­
ruary 1, 1963) 15-16

Packer, Making the Punishment Fit the Crime,' 
77 Har L Rev 1071 (1964)

Royal Commission on Capital Punishment, 1949- 
1953, Report (HMSO 1953) (Cmd No. 8932),
6, 12-13, 195, 201, 207



NO. 25 TWENTY-SEVENTH DISTRICT
SUPREME COURT OF NORTH CAROLINA 

Fall Term 1969
*******************************

STATE OF NORTH CAROLINA )
)v ) From Cleveland
) -------  ----ROBERT LOUIS ROSEBORO )

6S CRO 69 )
*******************************

DEFENDANT APPELLANT’S BRIEF 
*******************************

QUESTIONS PRESENTED
I. Whether the sentence of death imposed 

upon the defendant violated the principles 
of United States v Jackson.

II. Whether the sentence of death imposed u 
upon the defendant by a jury from which per­
sons expressing convictions against the death 
penalty were excluded violated defendant’s 
rights under the Sixth and Fourteenth Amend­
ments.

III. Whether the trial court erred by re- ^  
fusing to permit the defendant to make a full 
inquiry into the nature and extent of pros­
pective jurors' beliefs regarding the death 
penalty and their ability to impartially de­
termine defendant's guilt or innocence.

IV. Whether the trial court erred in deny­
ing defendant's challenges to prospective 
jurors.



2
V. Whether the trial court erred by failing 

to instruct the jury that they should consid­
er and could return a verdict of manslaughter 
as a lesser included offense of the crime of 
first degree murder.

VI. Whether the trial court erred in deny­
ing defendant’s motions for nonsuit and to 
set aside the verdict as being contrary to 
the weight of the evidence.

VII. Whether the State’s argument to the 
jury was improper and inflammatory and preju­
dicial to the defendant.

VIII. Whether the imposition of the death 
penalty by a jury with absolute discretion, 
uncontrolled by standards or directions of 
any kind, to impose the penalty violates the 
due process clause of the Fourteenth Amend­
ment .

jlX .  Whether the North Carolina split ver­
dict 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.
^X. Whether the imposition of the death 
sentence upon a sixteen-year old youth con­
stitutes cruel and unusual punishment in 
violation of the Eighth Amendment.

XI. Whether defendant’s indictment by a 
grand jury and trial by a petty jury from 
which members of his race were arbitrarily 
and systematically limited and excluded vio­
lated defendant’s rights under the Sixth and 
Fourteenth Amendments.

XII. Whether the trial court erred in deny­
ing defendant’s motion for a change of venue.



3-
XIII. Whether the trial court erred by admit 

ting into evidence certain exhibits of the 
State which were incompetent, immaterial, in­
flammatory and prejudicial to the defendant.

XIV. Whether the trial court erred by admit­
ting into evidence over defendant's objection 
the testimony of State’s witnesses which was 
incompetent, irrelevant, immaterial, inflamma­
tory and prejudicial to the defendant.

XV. Whether the trial court erred by re­
quiring counsel appearing for the defendant
to alternate with counsel for the State in pre 
senting arguments to the jury.

STATEMENT OF THE CASE
Robert Louis Roseboro, a sixteen-year old 

youth, was arrested on June 22, 1968, in 
Shelby, North Carolina, and charged with the 
crime of first degree murder of one Mary Helen 
Kendrick Williams. At the 1968 July term of 
Superior Court of Cleveland County, a true 
bill of indictment for first degree murder 
was returned.

At the June 1968 Term of Criminal Court of 
Cleveland County, Robert Roseboro was found 
to be indigent and unable to afford counsel 
for his defense and the court appointed coun­
sel to represent him. He was represented by 
his court-appointed counsel at his prelimi­
nary hearing where probable cause was found.
On October 23, 1968, Robert Roseboro’s in­
itially appointed counsel was released at the 
request of Roseboro and his present counsel 
was appointed to represent him.

Counsel moved to quash the bill of indict­
ment against the defendant on the following 
grounds:

1. That GS 14-17 and 15-162.1 are unconsti­
tutional by force of UNITED STATES v JACKSON;



-4-
2. That the death penalty constituted cruel 

and unusual punishment in violation of the 
Eighth and Fourteenth Amendments;

3. That the defendant would be subjected to 
trial by a jury which would be required to de­
termine guilt and punishment simultaneously 
and which would have absolute, uncontrolled 
and standardless discretion to impose the 
death penalty;

4o That the indictment against the defen­
dant was returned by a grand jury from which 
members of the defendant’s economic class 
and race were arbitrarily and systematically 
limited and excluded.

The motion to quash based on grounds 1,
2 and 3 was denied, and, after an evidentiary 
hearing, the motion to quash based on ground 
4 was denied.

The defendant moved for a change of venue 
based on widespread pretrial publicity in the 
county where he was indicted. The court de­
nied the motion for a change of venue but 
ordered that a special venire consisting of 
125 persons be summonsed from Burke County 
for the trial of the case. Prior to the com­
ing on of this case for trial, the defendant, 
through counsel, moved to quash the special 
venire of petit jurors on the grounds that 
persons of the defendant’s race and economic 
class were arbitrarily and systematically 
limited and excluded from service on the ve­
nire. After an evidentiary hearing on defen­
dant’s motion, the court denied the motion.

On April 28, 1969, Robert Louis Roseboro 
was brought on for trial upon the bill of 
indictment for first degree murder. On April 
29, 1969, and May 2, 1969, additional venires 
were summonsed from Burke County. To each 
order for an additional venire, the defendant 
excepted and objected and moved to quash on 
the same grounds as the initial special venire.



“5-
Robert Roseboro entered a plea of not guilty 

to the charge of first degree murder and a 
jury was selected to try the case. During 
the selection of the jury, prospective jurors 
who stated on voir dire that they had scruples 
against the imposition of the death penalty 
but that they would be able to determine 
question of guilt or innocence were challenged 
for cause by the State. At the close of the 
evidence for the State, the defendant moved 
for judgment of nonsuit on the charge of first 
degree murder and specifically for each lesser 
included offense thereunder. The motion was 
denied as to first degree murder and specifi­
cally as to each lesser included offense 
thereunder. The defendant did not put on any 
evidence and renewed the motion, which was 
again denied. The court then instructed the 
jury regarding the law and, in its instruc­
tions, failed to charge the jury that they 
should consider manslaughter as a possible 
verdict. The jury returned a verdict of guil­
ty of murder in the first degree. Thereupon, 
the court entered judgment and sentenced the 
defendant to die in the State's gas chamber as 
provided by law.
At the time the bill of indictment was 

returned against the defendant, GS 15-162.1 
provided that one charged with first degree 
murder could enter a plea of guilty and re­
ceive a sentence of life imprisonment prior 
to the call of the defendant’s case to trial. 
The North Carolina General Assembly repealed 
GS 15-162.1, effective March 29, 1969.

Upon the verdict of guilty and the judgment 
and sentence of death, the defendant gave 
notice of appeal to the North Carolina Supreme 
Court. The Court entered an order allowing 
the defendant to appeal as an indigent and 
appointed J. LeVonne Chambers and James E. 
Ferguson, II, to perfect the appeal.

FACTS
Robert Louis Roseboro, a sixteen-year old



-6-
youth, was arrested on June 22, 1968, in 
Shelby, North Carolina, and charged with the 
crime of first degree murder of one Mary 
Helen Kendrick Williams.

Mary Helen Williams was the operator of 
Mary’s Cannon Towel Outlet located on Highway 
74 in the City of Shelby, North Carolina. She 
was at the towel shop on Saturday morning,
June 22, 1968. Mary Williams’ mother-in-law, 
Lola Williams, testified that she called the 
towel shop at 10;45 AM on that morning and 
talked with Mary Williams for one or two 
seconds. One Mrs. Algio Alberghini testified 
that she came to Mary’s Cannon Towel Outlet 
at 11;20 AM that morning and saw a person whom 
she later learned was Robert Roseboro inside 
of the shop walking from one side to the other. 
She stated that she banged on the door trying 
to get his attention. She turned her head 
and then she next saw the person inside the 
store on the floor looking around a table in 
her direction.
Mrs. Alberghini then left the store and 

went to the Honda place next door to the out­
let store. There she talked with one Joe 
Dean Wright and asked him to call the police. 
Joe 'Wright immediately went down to the out­
let store, arriving at the building some time 
between 11;30 AM and 12:00 noon. After look­
ing in the building and seeing no one, Wright 
called to a friend of his at the Honda place 
to call the police. Wright went back to his 
Honda store lot and watched the building until 
the police arrived. He saw no one enter or 
leave the outlet store during the short period 
when he first went to the building and the 
time the police officers arrived.

Mr. Eddie Blankenship and Mr. Robert Lowery, 
both members of the Shelby Police Department, 
were among the first officers to arrive at 
the scene. Blankenship testified that when 
they arrived, they observed Roseboro standing 
there inside the building with what appeared



-7-
to be a pistol in his hand. They tried to 
open the door on the south side of the build­
ing facing Highway 74 but the door would not 
open. They also tried the door on the north 
side of the building and found it locked. 
Other police officers arrived on the scene 
while Robert Roseboro remained inside the 
towel shop. Lt. Everett Howell called to 
Roseboro to come outside, but got no audible 
response. He then ordered that tear gas be 
thrown inside the shop.

After tear gas was thrown into the build­
ing, Roseboro came outside the building with 
his hands in the air as directed by Lt.
Howell. When Roseboro came out, Lt. Howell 
searched him very briefly. After the brief 
search by Lt. Howell, Eddie Blankenship 
searched Roseboro and found on his person a 
set of keys, a cigarette lighter bearing the 
name "Bob'' and his wallet with no money in it. 
Blankenship took Roseboro to the Cleveland 
County jail.

Immediately after the tear gas was thrown 
into the building and Roseboro emerged, the 
nude body of Mary Helen Williams was found 
lying in the floor in a puddle of blood.
There were six lacerations about her head 
which generally penetrated to the skull.
There were four penetrating wounds on her 
chest and a penetrating wound in her abdomen 
which were probably caused by a sharp- 
pointed knife or similar object (R p 601).
The wounds on Mary Williams* head could have 
been caused by a fairly heavy, hard, blunt 
instrument or possibly by a sharp instrument 
(R p 602). In the opinion of the State’s 
medical expert, Dr. J. B. Gentry, the death 
of Mary Williams was caused by the penetrat­
ing wounds of the chest, with penetration of 
the heart (R p 601). Dr. Gentry believed the 
time of death to be approximately 11:00 AM, 
but he could not be too certain of the time 
of death within a range of two hours (R p 
604). The time of death could have been



-5-
10:00 o'clock, 11:00 o'clock, 11:15, 11:30, 
or 1:00 o'clock (R p 604).

Lt. Howell testified that in the immediate 
area where the body had lain there were 
pieces of two broken bottles with blood on 
them and a white object which was about half 
of a pistol grip. In the bathroom there 
were a knife, a blank 22 pistol, and a pair 
of dark blue sunglasses. Lt. Howell further 
testified that he found a lady's dress, 
blouse, hose, tennis slippers, brassiere and 
panties in the bathroom. These items of 
clothing belonged to Mary Williams and she 
had worn them on the morning of June 22,
1965. No fingerprints were found on any of 
the items found in the building.

Mary Williams had a blood group of "A" and 
"RH" positive. There were small blood stains 
on the shirt and trousers of Robert Roseboro 
which could only be identified as blood 
group "A". The bloodstains could not be iden­
tified as to the RH factor. The blood group­
ing of Roseboro was not determined by the 
State. (R p 625). Blood group "A" is found 
in approximately 42% of the general popula­
tion.

The defendant did not take the witness stand 
to testify, thus denying all of the conten­
tions and evidence presented by the State.
(Additional facts relevant to the question of 
nonsuit are set out in the brief under defen­
dant’s argument regarding the denial of the 
motion for nonsuit.)

ARGUMENT
I. THE SENTENCE OF DEATH IMPOSED UPON THE 
DEFENDANT PURSUANT TO GS 14-17 AND GS 15-162.1 
(WHICH WAS REPEALED EFFECTIVE MARCH 25, 1969) 
VIOLATES THE PRINCIPLES OF UNITED STATES v 
JACKSON.
(Assignment I, Exceptions 2, 137 (R pp 21, 643))



-9-
A. The Principles of United States v
Jackson are Applicable to This Defendant.
At the time of the alleged crime in ques­

tion and at the time the bill of indictment 
was returned, the defendant could have 
avoided the death penalty by pleading guilty 
to the crime of first degree murder. Defen­
dant's trial was initially set for October 
28, 1968, but was continued due to the fact 
that new counsel had been appointed only six 
days prior to the 28th (R p 10). This cause 
was then scheduled for January 27, 1969, at 
which time it was again continued for good 
cause shown and upon the consent of both the 
State and the defendant. (R p 12) The case 
was next set for trial at the March 3, 1969, 
Term of Court. By a consent order entered 
on March 7, 1969, the case was continued and 
set peremptorily for trial on April 28, 1969. 
(R p 29) The defendant filed a written motion 
to quash, dated March 6, 1969, pursuant to 
UNITED STATES v JACKSON, 390 US 570 (1963)
and ALFORD v STATE OF NORTH CAROLINA, __F 2d_
(4th Cir 1969), based upon the unconstitu­
tionality of the statutory scheme involving 
GS 14-17 and GS 15-162.1 (R p 13). The Court 
denied defendant's motion to quash by order 
dated March 13, 1969. GS 15-162.1 was re­
pealed effective March 25, 1969, by Chapter 
117 of the Session Laws of 1969. The defen­
dant was brought to trial on April 28, 1969, 
and entered a plea of not guilty to the bill 
of indictment. A verdict of guilty was return­
ed and judgment and sentence were pronounced 
on May 7, 1969.

It is clear from this chronology of events 
that Robert Roseboro was indicted, tried and 
sentenced pursuant to the statutory scheme 
provided for by GS 14-17 and GS 15-162.1 and 
therefore the holding of UNITED STATES v 
JACKSON, supra, is fully applicable to this 
case. From June 22, 19o8, the date of the 
alleged crime, until March 25, 1969, the date 
of the repeal of GS 15-162.1, Roseboro un­



-10-
questionably had the option of receiving a 
life sentence upon the tender and acceptance 
of a plea of guilty. This option was open 
to Roseboro, not only as a theoretical mat­
ter,, but as a practical matter. The case 
was calendared for trial on three separate 
occasions prior to March 25, 1969. On each 
of these occasions, the case was continued 
upon the motion of or with the consent of the 
defendant. Instead of moving for or consent­
ing to a continuance, the defendant could 
have proceeded to trial and exercised his op­
tion to plead guilty.

But more important in determining whether 
JACKSON is applicable to the defendant’s trial 
is the fact that the defendant squarely raised 
the JACKSON issue in a pretrial motion to 
quash the bill of indictment prior to the 
repeal of GS 15-162.1. The defendant’s motion 
under JACKSON was adversely ruled upon by 
the trial court prior to the repeal of the 
statute. Thus, the defendant was placed in 
the identical position that the defendant in 
JACKSON was in at the time the question was 
raised and ruled upon. The defendant in the 
instant case had no right of immediate appeal 
from the denial of his motion to quash. See 
3 Strong’s NC Index, Criminal Law, Section 
148. His remedy was to preserve an exception, 
as he did, and raise the issue on appeal from 
the conviction, as he has. Thus, the appli­
cability of the rationale of JACKSON is clear.

The argument that prior to the repeal of 
GS 15-162.1 North Carolina’s statutory scheme 
of capital punishment was rendered unconsti­
tutional under the rationale of UNITED STATES 
v JACKSON, supra and POPE v UNITED STATES, 392 
US 651 is familiar to this Court, this issue 
having been considered by this Court on sev­
eral occasions since the decision in JACKSON. 
STATE v PEELE, 274 NC 106, l6l SE 2d 568;
STATE v SPENCE (hearing on remand) 274 NC 536, 
164 SE 2d 593; STATE v ATKINSON, 275 NC 288. 
This same issue was also presented to the 
Court in STATE v MARIE HILL (not yet decided)



-11-
(Fall Term 1969, No. 28). In its most recent 
decision on this issue, STATE v ATKINSON, 
this Court held, with two justices dissenting, 
that the North Carolina death penalty was 
not invalidated by the rationale of JACKSON.

In ATKINSON, the majority was careful to 
point out the procedural differences in the 
posture of JACKSON and ATKINSON:

"UNITED STATES v JACKSON, supra, arose on 
a motion to dismiss the indictment. The 
present case comes before us after the de­
fendant has pleaded to the indictment. In 
the JACKSON case, it was not known how the 
defendant might wish to plead. In this 
case, the defendant pleaded not guilty and 
was tried by a jury. Whatever the effect 
of GS 15-162.1 might have been upon other 
defendants charged with first degree murder, 
its being in the statute book at the time 
of this defendant's arraignment and trial 
did not discourage him from exercising his 
right to a jury trial.'7 STATE v ATKINSON, 
supra, at 3lS and 319.
At the moment the instant defendant raised 

the question of his constitutional dilemma he 
was in the identical procedural posture of 
the JACKSON defendant, i.e., a motion to 
quash. The only difference now between the 
instant defendant and the JACKSON defendant 
is that there was an immediate appeal in the 
JACKSON case due to the dismissal of the in­
dictment and in the present case there was no 
immediate appeal because defendant’s motion 
was denied. Based on this distinction be­
tween ATKINSON and the instant case, the JACK- 
SON rationale is fully applicable to the in­
stant case and this Court may hold, without 
overruling ATKINSON, that the death penalty 
provision of the North Carolina murder stat­
utes was invalid as to this defendant.

On the other hand, if this is not persuaded 
by the distinction between ATKINSON and the



-12-
instant case, defendant would urge the court 
to reconsider its holding in ATKINSON and 
adopt the position of the dissenting opinion 
of Justices Bobbitt and Sharp for the reasons 
set forth in that opinion.

B. The Repeal of GS 15-162.1 Would Consti­
tute Ex Post Facto Legislation if Applied
to the Defendant’s Trial.
Lest it be argued by the State that it is 

not necessary to rule on the constitutionality 
of the capital punishment scheme of GS 14-17 
and GS 15-162.1 because the repeal of GS 15- 
162.1 was applicable to the defendant’s trial, 
it is submitted that the repeal of the statute 
to this defendant would amount to ex post 
facto legislation. Although the defendant 
urges in this brief that STATE v ATKINSON, 
supra, be overruled if applicable to the de­
fendant, STATE v ATKINSON remains the law 
in North Carolina. As such, ATKINSON held 
that there was no constitutional infirmity 
in the North Carolina statutory scheme of 
capital punishment. Therefore, at the time 
the alleged crime was committed, the option 
v/as open to Roseboro to tender a plea of 
guilty and, if such plea was accepted, to 
receive a life sentence.

The option was taken away from Roseboro 
by the repeal of the statute and he was thus 
confronted with a procedure that confronted 
him with and led to the death penalty. With­
out question this change in the law altered 
the position of the defendant to his detri­
ment and is therefore void as an ex post 
facto enactment. Any lav; which is passed 
after the commission of the offense for which 
an accused is being tried is an ex post facto 
law, when it inflicts a greater punishment 
than the law annexed to the crime at the time 
it was committed, or which alters the situa­
tion of the accused to his disadvantage.
STATE v BROADWAY, 157 NC 598, 72 SE 9»7; CALD- 
ER v BULL, 3 Dali 386, 1 L ed 648j Re MEDLEY,



-13-
134 US 160, 33 L ed £35; Re SAVAGE, 134 US 
176, 33 L ed £42; UNITED STATES v HALL, 6 
Cranch 171, 3 L ed l£9; KRING v MISSOURI, 107 
US 221, 27 L ed 506; THOMPSON v UTAH, 170 US 
343, 42 L ed 1061; CUMMINGS v MISSOURI, 4 
Wall 2777, l£ L ed 366; BURGESS v SALMON, 97 
US 3£l, 24 L ed 404; LINDSEY v WASHINGTON,
301 US 397, £l L ed ll£2. See also BOUIE v 
COLUMBIA, 37£ US 347, 12 L ed 2d £94° It 
does not matter that the purpose of the leg­
islature in repealing the statute was to 
correct a constitutional defect. The fact 
that taking away the guilty plea provision 
may have removed the constitutional dilemma 
for the future does not mean that it removed 
it for the past, nor does it mean that its 
removal escapes the ex post facto clause for 
those whose crimes were committed prior to 
the repeal. The test is not the purpose of 
the legislature nor the desirability of the 
act, but the impact of the law upon the 
situation of an accused.

II. DEFENDANT’S RIGHTS SECURED TO HIM BY 
THE SIXTH AND FOURTEENTH AMENDMENTS TO THE 
CONSTITUTION OF THE UNITED STATES AND ARTICLE 
I, SECTIONS 13 AND 17 OF THE NORTH CAROLINA 
CONSTITUTION WERE VIOLATED IN THAT PERSONS 
WHO COULD DETERMINE DEFENDANT’S GUILT OR 
INNOCENCE, BUT WERE UNWILLING TO IMPOSE THE 
DEATH PENALTY WERE NOT ALLOWED TO SERVE ON 
THE JURY.
(Assignment VIII, Exceptions 13, 14, 15, 16, 
17, 20, 23, 27, 2£, 31, 32, 33, 34, 41, 57, 
60, 61, 64, 65, 67, 6£, 69 and 70 (R pp 111, 
115, 135, 155, 166, 167, l££, 205-206, 210, 
230, 239, 24£, 263, 311, 399-400, 432, 450, 
463, 467, 477, 490, 50S and 515)
This argument presents squarely to this 

Court for the first time since the decision 
in WITHERSPOON v ILLINOIS, 391 US 510 (196£) 
the question whether it is constitutional to 
exclude from a jury in a capital case persons 
who will not vote for the death sentence but



-14-
who can determine the question of guilt or 
innocence without regard to punishment.
During the selection of the jury which sen­

tenced Robert Roseboro to death, the State 
was allowed to challenge for cause, over the 
defendant's objection, 20 of the 93 venire­
men examined on voir dire because they stated 
that they would be unwilling to return a 
verdict requiring the death penalty, although 
they could determine the defendant’s guilt 
or innocence. Thus, over 20^ of the venire­
men, otherwise qualified to serve, were dis­
qualified from determining defendant’s GUILT 
or PUNISHMENT simply because they had firm 
convictions against the imposition of capi­
tal punishment.

The examination of jurors by defendant on 
voir dire made it unmistakably clear that the 
jurors who were challenged by the State be­
cause of scruples were able to determine 
guilt or innocence, although they were un­
alterably opposed to the death sentence. A 
typical examination of a juror with scruples 
is that of Richard B. Stewart which appears 
at pages 131-135 of the Record;

’’RICHARD B. STEWART testified;
DIRECT EXAMINATION by Sol. Childs;

I am married. I have children. I am 
retired. I did retire prior to moving to 
Morganton. I was with the Atomic Energy 
Commission approximately fourteen years.
Q The defendant, Robert Louis Roseboro, 
who is seated between his attorneys, Mr. 
Chambers and Mr. Ferguson, is charged 
with first degree murder in the death of 
one Mary Helen Williams on the 22nd day 
of June, 1963. The State is seeking the 
death penalty. Do you have any religious 
or moral convictions that would prevent 
you from rendering a fair and impartial 
verdict in this case to either the State 
or the defendant?



-15-
A I do not believe in capital punishment.
Q If the evidence and the law in the case 
should in your opinion justify your render­
ing a verdict of murder in the first degree 
would you consider doing so?.

A Your Honor, I'm not familiar with the 
laws of this State---
THE COURTS The Court would instruct you 
essentially...and, of course, you would 
take the instructions of the court at the 
time in their entirety and not in fragmen­
tary form as might be given you at this 
time...that if the defendant were found 
guilty of murder in the first degree as 
that term would be defined for you without 
recommendation by the jury of life imprison 
ment, that the penalty would be death in 
the State's gas chamber; that you as a jury 
had the unlimited, discretionary right if 
you so found at the time, to recommend that 
the punishment be by imprisonment for life 
in the State's Prison. Now, in view of 
that qualification, would you repeat the 
question, Mr. Childs?
Q (Sol. Childs resumes) If the evidence 
and the law in the case should in your opin 
ion justify your rendering a verdict of 
guilty of murder in the first degree, would 
you consider doing so?

A Yes.
Q Would you consider rendering a verdict 
that would require the imposition of the 
death penalty by the court?

A No, sir.
Q You would not under any circumstances?
A No, sir.
Q Even though murder in the first degree 
could carry the death penalty, you would 
under no circumstances, as I understand, 
consider the death penalty at all?

A No, I would not.



-16-
SOL, CHILDS; Challenge for cause, your 
Honor,
THE COURT; Any questions of this gentlemen 
before the court rules by defense counsel?
CROSS EXAMINATION by Mr. Chambers;
Q Not considering any kind of sentence 
that could or could not be imposed by the 
court, would you be able to consider all 
of the evidence and render a verdict just 
determining the defendant's guilt or in­
nocence?

A Yes, I could.
Q You would be able to do that?
A Yes, sir.
MR. CHAMBERS; I have nothing further.
THE COURT; Mr. Stewart, you say you could 
determine the defendant’s guilt or inno­
cence? Would you do this without regard 
to or consideration of any punishment that 
might be imposed by the court as a result 
of the laws as written in this State?
A If I understand you correctly, your 
Honor, failing the recommendation of a 
jury, death is mandatory, is that correct?
THE COURT; Assuming the verdict is guilty 
of murder in the first degree.

A Yes...I could not.
THE COURT; You could not?

A No, sir.
COURT; Would you do so?

A I'm sorry...
THE COURT; Would you determine the guilt 
or innocence of this defendant, basing 
your verdict solely on the evidence as it 
comes from the witness stand, the argu­
ments and contentions of counsel, and the 
instructions as given you by the court, 
without regard to the punishment involved 
as a result of the verdict rendered by you? 

A Yes, sir.



-17-
THE COURT; You would do that?
A Yes, sir.
THE COURT; Challenge for cause is denied.
REDIRECT EXAMINATION by Sol. Childs;
Q If eleven of the jurors, based on the 
evidence and the charge of the court and 
the argument of counsel, should say that 
the defendant is guilty of murder in the 
first degree and are not inclined to make 
a recommendation of mercy, and if you your­
self should find from the evidence and be- 
yong a reasonable doubt, based on the evi­
dence and charge of the court, and so forth, 
that the defendant is guilty as charged of 
murder in the first degree, do I understand 
you, sir, that you would not go along with 
the other eleven jurors, even though you 
know in your own mind that he was guilty 
of murder in the first degree?

A Yes, sir.
Q Is that correct?
A Yes, sir.
Q Then you in no wise would consider the 

death penalty, whatever...
MR. CHAMBERS; If the court please, I sub­
mit that the question might be a bit mis­
leading. It’s my understanding the jury 
would first determine the defendant’s 
guilt or innocence and then the kind of 
verdict, whether guilty as charged or 
guilty with a recommendation of life im­
prisonment. The question could be mislead­
ing to the prospective juror.

Q (I’ll go into further detail...) Mr. 
Stewart, after hearing all of the evidence 
and the jury were voting on whether the 
defendant was guilty or innocent, and as­
suming that they voted that he was guilty—  
then, on the determination as to whether 
or not they were going to recommend mercy 
and eleven of them said they were not go­
ing to recommend mercy, then as I under­
stand you, you would not go along with the



-18-
other eleven jurors because you wouldn't 
consider that at all; is that correct?

A Yes,
SOL. CHILDS: If the court please, I think
that would be for cause.
THE COURT; Let me ask you one more ques­
tion for my own clarification. Are you 
saying that you would under no circum­
stances consider rendering a verdict and 
returning into the courtroom with a verdict 
that would require the court under the law 
of this State to impose the penalty of 
death?

A I couldn't do that.
THE COURT: Your answer to that question is, 
"Yes."

A I’m saying "Yes; I could not return 
such a verdict."
THE COURT: As to the prospective juror, 
Richard B. Stewart, the prospective juror, 
Richard B. Stewart, stated in response to 
questions by the court, the State, and 
counsel for the defendant that he would not 
consider bringing into open court a verdict 
as his verdict which would require the 
court to impose the death penalty as to the 
defendant in this case. The court finds 
this statement to be true and based thereon, 
finds as a fact that the prospective juror 
Richard B. Stewart, would not consider 
bringing into open court a verdict as his 
verdict which would require the court to 
impose the death penalty in this case.
Based upon the foregoing findings of fact, 
the court concludes as a matter of law that 
the challenge for cause should be and the 
same is hereby allowed and the juror is ex­
cused; exception for the defendant.
EXCEPTION NO. 16"

Equally clear is the basis for the State’s 
challenge and the court's ruling allowing the 
challenge as shown by the foregoing excerpt



-19-
from the record.

Defendant respectfully submits that the jury 
which convicted and sentenced him "fell woe­
fully short of that impartiality to which the 
[defendant] was entitled under the Sixth and 
Fourteenth Amendments." WITHERSPOON v ILLI­
NOIS, supra, at 51$•

The specific rationale stated by the Supreme 
Court as the basis for its WITHERSPOON hold­
ing argues against the constitutionality of 
excluding even those who are unqualifiedly 
and unalterably opposed to the death penalty 
in any case. Where (as is presently the case 
in North Carolina) the jury has absolute dis­
cretion in choosing between life and death, 
then its decision is to be no more than the 
reflection of the conscience of the community; 
and it must be no less than a reflection of 
the conscience of the total community;

A man who opposes the death penalty, no 
less than one who favors it, can make the 
discretionary judgment entrusted to him by 
the State and can thus obey the oath he 
takes as a juror. But a jury from which 
all such men have been excluded cannot per­
form the task demanded of it. Guided by 
neither rule nor standard, "free to select 
or reject as it [sees] fit," a jury that 
must choose between life imprisonment and 
capital punishment can do little more— and 
must do nothing less— than express the 
conscience of the community on the ultimate 
question of life or death. Yet, in a na­
tion less than half of whose people believe 
in the death penalty, a jury composed ex­
clusively of such people cannot speak for 
the community. Culled of all who harbor 
doubts about the wisdom of capital punish­
ment— of all who would be reluctant to pro­
nounce the extreme penalty— such a jury 
can speak only for a distinct and dwindling 
minority. (Id, at 519-520)



-20-
While the Court speaks here of those who re­

main on capital juries after the sort of 
broadside death-qualification condemned in 
WITHERSPOON, the same can be said of capital 
juries from which are excluded those who NEVER 
would vote for the death penalty. For of 
those who would be excluded under the broader 
test, it appears that more than one-half of 
that group would also be excluded even after 
the more meticulous voir dire examination 
designed to eliminate only veniremen who are 
unalterably unwilling to vote the death pen­
alty in any case. Zeisel, Some Data on Juror 
Attitudes Towards Capital Punishment 7-3 (Cen­
ter for Studies in Criminal Justice, Univer­
sity of Chicago Law School, 1963).! It can 
thus be said of a jury death-qualified by 
this narrower, stricter process— as was said 
of the jury in WITHERSPOON— that it "can speak 
only for a distinct and dwindling minority." 
(Id. at 520).
It must be understood that the Court in 

WITHERSPOON did not authorize those death 
qualification practices which it did not im­
mediately condemn. The court in WITHERSPOON 
made clear the limitation of the issue before 
it;

Of the persons who, in a national poll 
conducted by the Gallup organization, answer­
ed affirmatively that they had "conscientious 
or religious scruples against the death pen­
alty," Professor Zeisel found that 33$ would 
nonetheless vote for the death penalty "re­
luctantly, if there were no mitigating circum­
stances," or if-, "it were a horrible murder and 
a most terrible murdered." Another 3$ answered 
"don’t know." And 53$ who admitted to scruples 
against the death penalty stated that they 
would in no case vote the death penalty. This 
group, then, would be struck from the jury 
even after the more meticulous and narrow 
voir dire.



-21-
"The issue before us is a narrow one. It 
DOES NOT INVOLVE the right of the prose­
cution to challenge for cause these pros­
pective jurors who state that their reser­
vations about capital punishment would 
PREVENT them from making an impartial de­
cision as to the defendant’s guilt. NOW 
DOES IT INVOLVE the State’s assertion of a 
right to exclude from the jury in a capi­
tal 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." (391 US 
at 513-14) (Emphasis added.)

The Court’s careful opinion leaves no doubt 
that WITHERSPOON should not be read to vali­
date constitutionally those tests and prac­
tices of exclusion that fall outside its 
specific condemnation;

"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 (l) that they 
would AUTOMATICALLY vote against the im­
position of capital punishment without re­
gard to any evidence that might be devel­
oped 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 
guilty." (Id, at 522-23, n l)

WITHERSPOON does not then declare any death- 
qualification procedure to be constitution­
ally correct.



-22-
At least one court has forthrightly address­

ed itself to the issue of whether persons who 
could determine the question of a defendant's 
guilt or innocence should be excluded for 
cause because they are unalterably opposed to 
the death penalty. The Fourth Circuit Court 
of Appeals, in a pre-WITHERSPOON opinion, 
CRAWFORD v BOUNDS, 395 F 2d 297 (1963), after 
reviewing the line of cases dealing with 
systematic exclusion of jurors, stated the 
followings

"North Carolina's practice of excluding per­
sons from the jury selected to determine an 
accused's guilt or innocence, merely be­
cause they have some sentiment or reserva­
tion against capital punishment, without 
any determination that their beliefs would 
affect their ability to decide the issue 
of culpability, cannot stand under these 
Supreme Court decisions condemning syste­
matic exclusion." (at p 310)
0 0 *

"The exclusion of all persons from the jury 
in a capital case who hold conscientious 
objections to capital punishment cannot be 
justified on the ground that it is neces­
sary for the effectuation of the interest 
of an accused and the interest of society 
in having a fair and impartial jury deter­
mine the guilt or innocence of the accused 
on the facts as presented to them, and who 
are not influenced in their judgment by 
extraneous beliefs regarding one of the 
possible punishments which might be imposed. 
There, of course, can be no doubt as to 
the legitimacy of this interest. But it 
can be served by the exclusion of a much 
narrower group than that which was excluded 
in the instant case —  the exclusion of 
only those whose beliefs would impair their 
impartiality in determining guilt aside 
from the question of punishment." (Id at 
311)

When the United States Supreme Court consid­



-23
ered CRAWFORD v BOUNDS on certiorari, 393 US 
76, 21 L ed 2d 62 (196$), it remanded the case 
to the Fourth Circuit "for further considera­
tion in light of WITHERSPOON v ILLINOIS...'7* 
Thus, the CRAWFORD rationale has never been 
rejected by the Supreme Court. Consistent 
with its holding in WITHERSPOON, the Court 
apparently deemed it necessary to rule on 
the broader questions of jury selection raised 
in the CRAWFORD case.

It seems clear that the CRAWFORD rationale 
is not at all inconsistent with the ration­
ale of WITHERSPOON. CRAWFORD merely carried 
WITHERSPOON a step further than the Supreme 
Court deemed it necessary to go on the facts 
of WITHERSPOON.
Moreover, the logic of WITHERSPOON reinfor­

ces and vindicates the arguments that any 
death qualification procedure unjustifiably 
distorts the constitutionally requisite rep­
resentativeness of the jury that sits to de­
termine the issues of guilt or innocence and 
the issue of punishment. Although the vice 
condemned in WITHERSPOON is expressed in terms 
of the jury being "stacked" or a "hanging 
jury," id, at 523, the concern expressed by 
these phrases connote not merely unfairness, 
but unbalance. A deck or a jury is "stacked" 
by over-inclusion, over-representation of one 
type, with consequent under-representation of 
another or others. And a "hanging jury" is not 
seen to be so in absolute but in relative 
terms— it is a jury more prone than most to 
kill. We take it that no defendant could com­
plain of a "hanging jury" chosen by the luck 
of the draw and fairly representative of a 
"hanging community." What WITHERSPOON condemns

On July 14, 1969, the Fourth Circuit remand­
ed to the District Court with directions to is­sue a writ of habeas corpus and referred to its decision above-quoted from. Thus, the constitu­tional holdings of Crawford left unresolved by the Supreme Court are still the law in the Fourth Circuit.



-24-
is an unrepresentatively, a disproportionately, 
death-prone jury--one chosen by a process that 
skews and distorts the community character of 
the jurors with regard to the vital penalty 
question.
WITHERSPOON thus confirms that what is 

wrong with a rule excusing for cause a class 
of veniremen characterized by their particu­
lar views on the subject of the death penalty 
is that the process renders the remaining 
jurors unrepresentative; and that such a rule 
affronts the "established tradition in the 
use of juries as instruments of public jus­
tice [which has now become a constitutional 
demands] that the jury be a body truly repre- 
sentaive of the community.” SMITH v TEXAS, 311 
US 128, 130 (1940). The point is no less val­
id if a narrower, rather than a broader, 
standard is employed to test the nature of 
the venireman's views that works his disquali­
fication. The State's justification for a 
jury selection process which makes the jury 
unrepresentative is also essentially the same 
for all forms and species of death-qualifying 
procedure; that the disqualified jurors "can­
not be relied upon to vote for [capital punish­
ment]... even when the laws of the State and 
the instructions of the trial judge would make 
death the proper penalty.” WITHERSPOON, 
supra, 391 US 510, at 518-19. But the Supreme 
Court flatly rejected that supposed justifi­
cation, and for reasons not limited to the 
holding in WITHERSPOON.2 Illinois' asserted 
purpose for excluding scrupled jurors was re­
jected not alone because the Illinois exclu­
sionary practice went beyond the necessities 
of that purpose, but on the broader constitu­
tional logic that a capital trial process

2"But in Illinois, as in other states, the 
jury is given broad discretion to decide whe­ther or not death i_s 'the proper penalty’" in a given case, and a juror's general views about capital punishment plav an inevitable role in any such decision." (391 US at 519)



-25-
which gives the jury limitless discretion to 
sentence to life or death comports no suffi­
cient justification for excusing jurors on 
the sole ground that they will exercise that 
discretion on the grounds of principle. "A 
man who opposes the death penalty...[and one 
who will never vote for it], can make the 
discretionary judgment entrusted to him by 
the State and can thus obey the oath he takes 
as a juror." 391 US at 519. He GAN follow 
the law; he is told to exercise his discre­
tion, and he will do so as well and as surely 
in accordance with his conscience as the next 
man.

The excluded jurors in the present case ex­
plicitly and affirmatively stated that they 
could determine the defendant’s guilt or inno­
cence without regard to the punishment. Logic 
and fairness argue persuasively that they 
should not have been excluded from service on 
the jury solely because of their views con­
cerning punishment, for even on the question 
of punishment the jury was invested with ABSO­
LUTE and UNBRIDLED discretion.

III. THE TRIAL COURT ERRED BY REFUSING TO 
PERMIT THE DEFENDANT TO MAKE A FULL INQUIRY 
INTO THE NATURE AND EXTENT OF PROSPECTIVE 
JUROR’S BELIEFS REGARDING THE DEATH PENALTY 
AND THEIR ABILITY TO IMPARTIALLY DETERMINE 
DEFENDANT’S GUILT OR INNOCENCE.
(Assignments IX and X, Exceptions 18, 19, 21, 
22, 24, 25, 26, 35, 36, 33, 40, 42, 43, 44, 
46, 49, 50, 51, 52, 53, 54, 55, 53, 59, 62,
63 and 66;(R pp 160, l6l, 170, 191, 193, 266, 
269, 290, 305, 320, 327, 337, 349, 362, 363, 
367, 334, 403, 421, 454, 456 and 470))
During the voir dire of the jury in this 

capital case, defendant sought on numerous oc­
casions to question prospective jurors regard­
ing the nature and extent of their beliefs 
regarding the death penalty and their ability 
to make an impartial determination of the



-26-
defendant ’ s guilt or innocence. A brief look 
at some of the questions which defendant was 
not allowed to ask will readily reveal that 
defendant was severely limited in gathering 
information so as to intelligently exercise 
his peremptory challenges, as well as inform­
ing himself as to whether or not he should 
take the witness stand during the trial to pre­
sent evidence on the question of guilt and 
punishment. Juror Kiser was asked by defense 
counsel; (R p 170) ’'What factor would lead 
you to propose the death penalty?” The State’s 
objection was sustained. Again, this juror 
was asked by defense counsel: ’’Would the fact 
that he is proved guilty beyond a reasonable 
doubt of first degree murder be sufficient 
for you to impose the death penalty?" The 
State's objection was again sustained. (R p 
170) Ultimately this juror was challenged 
peremptorily by the defendant (R p 173).

The defendant’s attempted examination of 
Juror Houston fared no better, although dealing 
with a slightly different question. Defen­
dant asked: "Would the type of criminal con­
duct allegedly involved here affect your de­
termination of the defendant’s guilt or inno­
cence?" The court sustained the State's ob­
jection to the question. Defendant was re­
quired to use another peremptory challenge to 
excuse the juror.

Defendant’s examination of Juror Cobb met 
the same fate. Defendant sought to determine: 
"Under what circumstances would you consider 
rendering a verdict of guilty of murder in 
the first degree without a recommendation of 
mercy?" That State immediately objected and 
the court immediately sustained the objection. 
(R pp 319-320)
Defendant was not even allowed to ask the 

simple question: "Would ]̂ ou rather not serve 
on this jury?" (R p l6l)

The above illustrations represent but a few 
of the errors committed by the trial court in



-27-
refusing to allow the defendant to test the 
competency and ability of prospective jurors 
to serve on the jury. This action of the 
trial court violated defendant’s rights under 
State statutory law and under provisions of 
the State and federal constitution.

NO GS 9-15 provides as follows:
"The court, or any party to an action, 
civil or criminal, shall be allowed, in 
selecting the jury to make inquiry as to 
the fitness and competency of any person 
to serve as a juror, without having such 
inquiry treated as a challenge of such 
person, and it shall not be considered by 
the court that any person is challenged as 
a juror until the party shall formally state 
that such person is so challenged."

Clearly, this statute contemplated that both 
the State and a defendant would be allowed to 
elicit information from jurors regarding their 
views on matters to come before them so as to 
permit the parties to make an informed and in­
telligent use of the peremptory challenges and 
their challenges for cause. The defendant was 
on trial for his life and it was necessary 
for him to ask the questions which are the sub 
ject of the above exceptions in order to deter 
mine the fitness and competence of the pros­
pective jurors to serve.

Both the State and Federal Constitutions 
guarantee to a defendant in a criminal case 
the right to a fair and impartial jury. In or 
der to determine whether a particular jury or 
a particular juror is going to be fair and im­
partial, logic dictates that a defendant must 
be allowed to inquire into their biases and 
predelictions.

Nothing could be more basic in determining 
impartiality in a capital case than the views 
of prospective jurors regarding the death 
penalty and the factors which might influence 
his views towards capital punishment one way



-2B- ■
or the other. Our courts have traditionally 
held that one’s views towards capital punish­
ment are relevant to one's competence and fit­
ness to serve on a capital jury. STATE v VICK 
132 NC 9955 STATE v CHILDS, 269 NC 307- Under 
the holding of WITHERSPOON v ILLINOIS, supra, 
that one cannot be excluded from jury service 
because he has general scruples against capi­
tal punishment, it follows that a defendant 
must be permitted to fully inquire into a ju­
ror's beliefs regarding capital punishment in 
order to determine his competence to serve.
Such inquiry is needed, moreover, to provide 
the court with a basis for granting or denying 
a challenge for cause.

The harsh consequences visited upon an ac­
cused in a capital case as a result of the 
North Carolina practice of allowing unbridled 
discretion to a jury and the split-verdict 
procedure (See Assignments VIII and IX of this 
Brief) were compounded by the limitations the 
court placed upon defendant’s examination. By 
limiting the defendant’s inquiry, the court 
effectively foreclosed the only possible avenue 
open to defendant for determining the basis 
that those who sat in judgment upon his life 
might use for either imposing or withholding 
the death penalty.

It was at this stage of the trial and this 
stage only that the defendant might elicit 
testimony that would not only be helpful but 
essential in making a decision as to whether 
or not to present evidence on the question of 
guilt or punishment or whether to exercise 
his right of allocution of whether to remain 
silent. By denying defendant the opportunity 
to elicit this vital information, the trial 
court denied him his right to a fair trial 
and the basic elements of due process.

By implication, the court also denied de­
fendant his right to the effective assistance 
of counsel. Counsel’s inability to inquiry 
into the prospective juror’s beliefs regarding



-29-
the death penalty and their ability to de­
termine guilt or innocence deprived counsel 
of information essential to give intelligent 
and informed advice to the defendant in the 
selection of the jury. The right to counsel 
means the right to the effective assistance 
of counsel. GIDEON v WAINWRIGHT, 372 US 335,
9 L ed 2d 799. See also SPANO v NEW YORK,
360 US 315, 3 L ed 2d (separate opinion of 
Justice Douglas).

IV. THE TRIAL COURT ERRED IN DENYING DEFEN­
DANT’S CHALLENGES TO PROSPECTIVE JURORS.
(Assignment XIj Exceptions 37, 39, 45, 47, 4$, 
71 and 725 (r pp 2S8, 293, 34S, 351, 352,
524 and 526))
It should be noted at the outset of this ar­

gument that during the selection of the jury 
the defendant not only exhausted all of his 
peremptory challenges (R p 4&3), but sought to 
exercise peremptory challenges even after he 
had exhausted his challenges. (R pp 525 and 
526). Therefore, any error of the trial judge 
adverse to the defendant in the selection of 
the jury was crucial to the defendant.

Several times during the jury voir dire, the 
defendant challenged for cause veniremen who 
expressed bias against the defendant or who 
demonstrated their inability to be impartial 
in determining the defendant's guilt or inno­
cence or imposing punishment upon the defen­
dant. In these instances, about which defen­
dant here complains, the trial court refused 
defendant's challenges, thus denying defendant 
the fair and impartial jury to which he was 
constitutionally entitled.

In order to illustrate the clear error of 
the court, below we set forth excerpts of the 
testimony of some of those jurors who express­
ed bias against the defendant and were not 
excluded for cause;



-30-
Testimony of Melvin Junior Propst (R p 287)
"Q Under what circumstances would you vote 
for the death penalty?

A If I felt he was guilty. I believe in 
capital punishment if I felt a man was 
guilty.
• • o

Q If you believed from all of the evi­
dence, the arguments of counsel, and the in­
structions of the court that the defendant 
was guilty of murder in the first degree, 
would you under any circumstances consider 
recommending life imprisonment or would you 
vote for death?

A I would vote for death.
Q You would not under any circumstances, 

if you believed him guilty of murder in the 
first degree, consider voting for life im­
prisonment?

A No, I wouldn't."
The juror was challenged for cause and the 

challenge was denied. He was subsequently 
challenged peremptorily by the defendant. Prior 
to denying the challenge for cause, the court 
examined the juror and the juror stated that 
he would consider a recommendation of life sen­
tence. It is the contention of the defendant, 
however, that no examination by the court, no 
matter how lengthy and how lucid, could com­
pletely erase the fixed opinion on the death 
penalty stated by the juror. Any juror who 
would automatically vote the death penalty 
could not possibly give the defendant a fair 
trial.

Testimony of Jack Madison Hensley (R p 347)
"Q Are you in favor of the death penalty,
Mr. Hensley?

A Well, that's the law.
Q But you are in favor of it?
A Yes, sir.



-31-
Q If on the basis of the evidence and the 
arguments of counsel and the charge of the 
court, you were to believe that the defen­
dant was guilty of murder in the first de­
gree, would you under any circumstances con­
sider recommending mercy?

A No, sir."
The defendant then challenged the juror for 
cause. The court examined the juror and the 
juror stated that he would consider recommend­
ing life imprisonment, after which the court 
denied the challenge. After unsuccessfully 
challenging the juror for cause on two more 
occasions (R pp 351 and 352), the defendant 
exercised a peremptory challenge to the juror. 
Here again, it is submitted that the clear, 
fixed, expressed opinion of the juror that he 
would automatically impose the death penalty 
could not be erased by the court's examination. 
Defendant's challenge for cause should there­
fore have been granted.

In each of the above instances, where the 
jurors had first stated that tney would auto­
matically vote for death and then, after 
questioning by the court, that they would 
consider recommending life imprisonment, the 
defendant attempted to inquire into what fac­
tors would influence their choice of punish­
ment (R pp 343-349, 355)* In each instance, 
the court would not permit the inquiry. It is 
submitted that in each instance the defendant 
was denied his precious right to trial by a 
fair and impartial jury. See WITHERSPOON v 
ILLINOIS, supra, and CRAWFORD v BOUNDS, supra.

V. THE FAILURE OF THE COURT TO CHARGE THE 
JURY CONCERNING A POSSIBLE VERDICT OF GUILTY 
TO MANSLAUGHTER WAS ERROR.
(Assignment XVIII; Exceptions 150-155; (R pp 
675, 680-31, 635, 637, 691, 692))
Under the law of North Carolina, the failure 

of the court to instruct as to manslaughter



-32-
constituted reversible error in the trial of 
Robert Roseboro. This court held in STATE v 
MANNING, 251 NC 1, 110 SE 2d 474 (1959), that 
a manslaughter charge is required when a 
homicide has occurred, where there are no eye­
witnesses and where no one of the State's 
witnesses knows what took place. Furthermore, 
a verdict of guilty to a crime as charged will 
not cure an error of failure to charge as to 
a lesser degree of the crime. STATE v DeGRAF- 
FENREID, 223 NC 461, 27 SE 2d 130 (1943).

In MANNING, supra, the defendant and his 
wife were together in a wooded area for ten 
minutes before shots were heard. There were 
no eyewitnesses to the death of the wife and 
what actually took place rested,"in specula­
tion." MANNING, supra, 6, 477. There was no 
admission of an intentional shooting by that 
defendant; similarly, Roseboro has admitted no 
intentional homicide. In fact, young Roseboro 
has admitted no guilt in any respect. Robert 
Roseboro's actions in the outlet store and, 
for that matter, the deceased's actions, were 
witnessed by no one. No one can say what hap­
pened for a period of approximately an hour 
before the death was discovered. The whole of 
the evidence that the State brought forth re­
lating to the homicide was circumstantial; 
not one witness could testify as to what ac­
tually occurred at the scene of the crime. The 
MANNING case fits this situation precisely. 
That case states an absolute rule with criter­
ia for application that are squarely met in 
the instant case. The trial court erred in 
failing to follow the rule of MANNING.

A verdict of a crime as charged does not 
cure an error of failure to charge as to a 
lesser degree of the crime. STATE v DeGRAF- 
FENREID, 223 NC 461, 27 SE 2d 130 (1943).
This Court stated in STATE v DeGRAFFENREID, 
supra, that in a case where there is a fail­
ure to charge as to a lesser crime, it can­
not be known whether a jury would have con­
victed the defendant of the lesser crime if



-33-
the different views arising out of the evi­
dence were presented to it by the Court. In 
a situation where the prosecution relies 
primarily on circumstantial evidence for con­
victions, there being no eyewitnesses, MAN­
NING, supra, requires an instruction as to 
manslaughter. Therefore, as a rule of law, 
it becomes permissible to convict the defen­
dant of a lesser degree of homicide than first 
or second degree murder, and when such is 
the case, a verdict of guilty as charged will 
not vitiate the failure to charge as to man­
slaughter. Since what actually occurred in 
the towel shop is purely conjectural, defen­
dant should have full benefit of all possible 
charges. A jury in a capital case should also 
have the benefit of every possibility to con­
sider before returning a verdict. An element 
of certainty is missing when the jury is de­
nied the opportunity to consider all that it 
is required to consider.

The error of the trial court in failing to 
charge the jury on manslaughter is compounded 
by the fact that the court specifically denied 
defendant’s motion for judgment of nonsuit 
on the question of manslaughter (R pp 641,
642). Not only did the trial violate the law 
as established in STATE v MANNING, the court 
even refused to follow the law of the case as 
established by the court’s own ruling. When 
the court denied defendant's motion to dis­
miss on the question of manslaughter, the 
court inferentially ruled that manslaughter 
was a possible verdict to be considered by 
the jury and the court was therefore bound 
to instruct the jury on the question of man­
slaughter. The failure to do so constituted 
reversible error.

VI. THE TRIAL COURT ERRED IN DENYING DEFEN­
DANT’S MOTION FOR NONSUIT AND MOTION TO SET 
ASIDE THE VERDICT AS BEING CONTRARY TO THE 
WEIGHT OF THE EVIDENCE.
(Assignment XIII; Exceptions 129, 130, 131,



-34-
132 and 136 (R pp 641 and 642) and Assignment 
XX; Exceptions 156 and 1$S (R pp 695-6))

It is well settled law in this State that 
upon a motion for nonsuit in a criminal ac­
tion, the evidence is to be considered in 
the light most favorable to the State, See 
GS 15-173. When, as here, the motion for 
nonsuit questions the sufficiency of circum­
stantial evidence, the question is whether 
a reasonable inference may be drawn from the 
circumstance, STATE v CUTLER, 271 NC 379,
156 SE 2d 679, When the evidence in a crimi­
nal action is sufficient only to raise a 
suspicion or conjecture as to either the com­
mission of the offense or the identity of the 
defendant as the perpetrator of it, the motion 
for nonsuit should be allowed even though the 
suspicion so aroused by the evidence is 
strong, STATE v CUTLER, supra.

Defendant submits that when the evidence in 
the instant case is considered in the light 
most favorable to the State, it does no' more 
than raise a strong suspicion of guilt. Here 
the State relied entirely upon circumstantial 
evidence. Taking all of the evidence in the 
light most favorable to the State, it tends 
to establish the following;

On the morning of June 22, 1966, sometime 
between the hour of 10;45 AM and 11:30 AM,
Mary Helen Williams was killed. Her body was 
found at Mary’s Cannon Towel Shop at approxi­
mately 11:30 AM on that morning. The defen­
dant was seen in the shop at approximately 
11:20 on that morning by one Mrs, Alberghini 
and was present in the building at 11:30 AM 
when the body was discovered. The body of 
Mary Williams was lying in a puddle of blood; 
she had been beated about the head with some 
sharp or blunt object and stabbed in the chest 
and abdomen several times with some sharp 
object. She died from a stab wound in the 
heart. A knife, a blank pistol, two broken 
bottles and part of a blank pistol were found



-35-
in the buildingo The defendant had been seen 
with a knife similar to the one found in the 
place three days before this incident. It 
could not be positively said that it was the 
same knife. There were no fingerprints on the 
knife or any of the other objects found in 
the building.

Four sales had been rung up on the cash reg­
ister that morning. The cash register was 
open. The defendant had no money on him. He 
had a cigarette lighter bearing the initials 
"Bob'* and a set of keys on him, both of 
which belonged to the deceased.

The deceased had a blood type of "A" ”RH" 
positive. There were small blood stains on 
the shirt and trousers worn by Robert Roseboro 
which were determined to be blood type "A".
The stains could not be identified as to their 
RH factor. There were blood stains on the 
knife and pistol but no determination could be 
made of its type.

The body of the deceased was nude when found 
however, she had not been sexually molested.

It is respectfully submitted that the fore­
going evidence, all circumstantial, is not 
sufficient to warrant a reasonable inference 
of defendant's guilt. The gist of the State’s 
evidence is that the defendant was present in 
the building with the deceased at the time she 
was found dead and therefore nad an opportuni­
ty to kill her. However, it is not enough to 
defeat the motion for nonsuit that the evi­
dence establishes that the defendant had an 
opportunity to commit the crime charged. STATE 
v HOLLAND, 234 NC 354, 67 SE 2d 272. There 
is no evidence that the defendant used, or 
even touched, any of the objects there in the 
building. Moreover, the State presented abso­
lutely no evidence to even show that any of 
the instruments found in the building were 
used to perpetrate the crime.



-36-
The fact that four sales were made that morn­

ing indicates that other persons visited the 
towel shop on the morning in question,, The 
time these sales were made is not known. But 
perhaps the most conspicuous omission in the 
State’s evidence is the complete lack of any 
proof of motive, an essential element of the 
offense charged. There is nothing in the 
State’s case to connect this defendant to 
this crime but his presence in the building 
on this fateful morning. With this evidence, 
a jury could only be left to speculate and 
conjecture about what actually occurred.

In cases such as the present one, there is 
no absolute rule to guide the court in de­
termining the question of nonsuit. Each case 
must therefore rest on its own particular 
facts. Defendant submits however, that the 
following cases argue persuasively that the 
motion in the instant case should have been 
granted. STATE v CUTLER, supra; STATE v 
HENDRICK, 232 NC 447, 6l SE 2d 349; STATE v 
POPE, 252 NC 356, 113 SE 2d 5^4; STATE v 
PRINCE, 132 NC 738, 108 SE 330; STATE y LANG- 
LOIS, 258 NC 491, 128 SE 2d 803; STATE v 
COFFEY, 44 SE 2d 886. The trial court's de­
nial of defendant’s motion constitutes rever­
sible error and this court is asked to so 
order.

VII. THE STATE'S ARGUMENT TO THE JURY WAS 
IMPROPER AND INFLAMMATORY AND PREJUDICIAL TO 
THE DEFENDANT.
(Assignment XVII; Exceptions 140-149; (R pp 
648, 650-51, 652, 662, 664, 669) and 
Assignment XIX; Exception 156 (R p 695))
Defendant submits that the arguments of the 

State to jury set out below were clearly im­
proper and were calculated and did have the 
effect of inflaming the jury to the prejudice 
of the defendant:

"And in the meantime, some cool customer



-37-
had Mary Williams in the bathroom and there 
wasn’t any evidence whatsoever about any­
body being in there except Robert Roseboro. 
What did Mary Williams do in that washroom? 
You might say she undressed. I don’t think 
that’s true because of the condition of the 
clothes. She didn't undress. She didn’t 
disrobe. She didn’t do anything..any fancy 
word like that. She took off her clothes 
like you are shucking corn, she was so 
anxious to get them off. Why? I argue and 
contend to you that that gun and that knife 
that is in evidence right now was aimed at her.. .
OBJECTION. SUSTAINED” (R p 650)
’■She was terrified, I argue and contend to 
you as the condition of these clothes tells you." (R p 650)
"She was in such a hurry to get them off 
that they are still attached.
OBJECTION. SUSTAINED." (R p 651)
"Nowj somehow in her terror as she disrobed 
herself, she got over there and somebody 
overtook her —  and there wasn’t but one 
somebody in there —  and started beating on her." (R p 651)
”We have glasses in there with her clothes 
that she had apparently hurriedly shed... 
OBJECTION AND MOTION TO STRIKE" (R p 66l)
"COURT; Sustained; motion to strike, allow­
ed. Members of the jury, you will not con­
sider counsel’s statement concerning clothes 
which were hurriedly shed at any point in 
your deliberations.” (R p 66l)
"What about this business of having time to 
think about it? What about this business 
of motive? When a woman is naked and there 
is a man in there, what motive do you need? 
You don't have to be stupid just because 
you are on the jury and I know you are not... 
OBJECTION AND MOTION TO STRIKE" (R p 662)



''COURTS Members of the jury, the court in­
structs you that you will not consider the 
last statement of counsel at any point in 
your deliberations." (R p 662)
"My point is that when there is a naked wo­
man there and there is a man present and 
something like this has happened, isn’t 
that motive obvious?
MOTION TO STRIKE" (R p 662)
"COURTS Motion to strike allowed. Members 
of the jury, you will not consider at any 
point in your deliberations counsel’s last 
statement concerning motive." (R p 663)
"I ask that you bring a verdict of guilty 
of murder in the first degree, period, and 
I say that you as individuals are not the 
ones passing the punishment. The State of 
North Carolina law provides the punishment 
and I ask that you are not concerned in any 
way with the punishment." (R p 664)
"I argue and contend that had the defendant 
had the opportunity...
OBJECTION. OVERRULED. EXCEPTION # 149a 
...to use the key that belonged to the cash 
register, he would have done so...
OBJECTION AND MOTION TO STRIKE" (R p 669)
COURT; Objection sustained. Motion to 
strike allowed. Members of the jury, you 
will not consider the solicitor’s remarks 
as to what the defendant would have done 
had he had the opportunity to do so at any 
point in your deliberations." (R p 669)
The foregoing arguments of the State were 

not based upon any evidence in the case and 
had no legitimate purpose in the case and no 
other explainable purpose than to prejudice 
the defendant.

While counsel is allowed some discretion 
in the presentation of his case and the trial



-39-
court is able, under some circumstances to 
correct abuses by counsel, the discretion al­
lowed is not without limitations* For the 
constitutional protection of a fair and im­
partial trial necessarily limits the discre­
tion of counsel and the court. This court 
and the United States Supreme Court have made 
it abundantly clear that every accused is en­
titled to a fair and impartial trial, free of 
conduct and comments by the State and the 
court of matters having no legitimate purpose 
in the case or no other explainable purpose 
than to prejudice the rights of an accused. 
See, e.g. BERGER v UNITED STATES, 29$ US 79,
79 L ed 1314; FONTAINE v CALIFORNIA, 390 US 
$93, 20 L ed 2d 1$4; HAMILTON v ALABAMA, 376 
US 6$0, 11 L ed 2d 979, reversing 27$ Ala $74, 
1$6 So 2d 926; STATE v MILLER, 271 NC 646,
1$7 SE 2d 33$ (1967); STATE v WHEELER, 26l NC 
6$1, 13$ SE 2d 669 (1964); STATE v HAWLEY, 229 
NC 167, 46 SE 2d 3$ (1946). See also STATE 
v FOSTER, 2 NC APP 109, 162 SE 2d $63 (1966); 
POTTER v OKLAHOMA, 217 P 2d 644 (19$0); MINNE­
SOTA v COURSOLLE, 2$$ Minn 364, 97 NW 2d 472 
(19$9); HUDSON v GEORGIA, 106 Ga App 192, 132 
SE 2d $06 (1963).

As pointed out by the United States Supreme 
Court in BERGER?

"The United States Attorney is the represen­
tative not of an ordinary party to a contro­
versy, but of a sovereignty whose obligation 
to govern impartially is as compelling as 
its obligation to govern all; and whose in­
terest, therefore, in a criminal prosecution 
is not that it shall win a case, but that 
justice shall be done. As such, as in a pe­
culiar and very definite sense the servant 
of the law, the two-fold aim of which is 
that guilt shall not escape or innocence 
suffer. He may prosecute with earnestness 
and vigor —  indeed he should do so. But, 
while he may strike hard blows, he is not 
at liberty to strike foul ones. It is as 
much his duty to refrain from improper



40-
methods calculated to produce a wrongful 
conviction as it is to use every legitimate 
means to bring about a just one."
295 US at 88, 79 L ed at 1321.
Thus, the courts have reversed criminal con­

victions when the prosecuting attorney relied 
upon evidence known or suspected to be per­
jured or even incomplete. MILLER v PATE, 386 
US 1, 17 L ed 2d 690; when the prosecuting 
attorney uses inflammatory pictures, exhibits 
and illustrations, STATE v MILLER, supra;
STATE v FOUST, 258 NC 453, 128 SE 2d 889 
(1963); when the prosecuting attorney with­
holds evidence useful to the defense, GILES v 
MARYLAND, 386 US 66, 16 L ed 2d 737; when the 
prosecuting attorney, in argument to the jury, 
appeals to sympathy or prejudice, VIERECK v 
UNITED STATES, 318 US 236, 87 L ed 734; STATE 
v MILLER, supra.

Thus, the defendant was deprived of his con­
stitutionally guaranteed right to a fair and 
impartial trial.
VIII. THE IMPOSITION OF THE DEATH PENALTY 

BY A JURY WITH ABSOLUTE DISCRETION, UNCONTROL­
LED BY STANDARDS OR DIRECTIONS OF ANY KIND,
TO IMPOSE THE PENALTY VIOLATES THE DUE PROCESS 
CLAUSE OF THE FOURTEENTH AMENDMENT.
(Assignment II; Exceptions 2, 137 and 138 (R 
pp 21, 643))
Our submission here attacks the principal 

legal device by which North Carolina permits 
the arbitrary administration of capital pun­
ishment which is unrestricted by jury discre­
tion. Elsewhere we attack the single verdict 
procedure and penalty itself. The discretion 
given North Carolina jurors to sentence men 
whom they convict of murder to live or die is 
absolute. It is totally unguided, unprincipl­
ed, unconstrained, uncontrolled, and unreview- 
able. We point out that under GS 14-17 the 
only instruction given to the jury regarding



-41-
the jury's decision between life and death is 
a simple reading of the statute. This court 
has referred to the discretion granted by the 
statute as "unbridled," STATE v McMILLAN, 233 
NC 630, 65 3E 2d 212, and so it is.

We think there can be no doubt about the un­
constitutionality of such a procedure. The 
argument has been made to the Court before, 
and we urge it again here. Very recently, it 
was rejected by the Supreme Court of California 
by four-to-three vote. In Re ANDERSON, Cal 2d 
477 P 2d 117, 73 Cal Rptr 21 (1963); se<T STATE ” 
v SPENCE, supra, at 549 (dissenting opinion). 4i th­
ief erence y we submit that Justice Tobriner's 
dissenting opinion, in which Chief Justice 
Traynor and Justice Peters concur, states the 
law of the Fourteenth Amendment. It does so 
with uncomparable lucidity, and we hope that 
it will be read by this Court.

The issues to which it speaks could not be 
more important or more fundamental. For, what­
ever else "due process of law" may encompass, 
it has always been thought to impose some de­
mand of fundamental procedural regularity 
in decision making, some insistence upon the 
rule of law, some adherence to the principle 
established by Magna Chart a that the life and 
liberty of the subject should not be taken but 
by the law of the land. The United States 
Supreme Court has long condemned the sort of 
vagueness in criminal statutes that "licenses 
the jury to create its own standard in each 
case," HERNDON v LOWRY, 301 US 242, 263 
(1937). See e.g., SMITH v CAH00N, 283 US 552 
(1931),“ CLINE v FRINK DAIRY CO, 247 US 445 
(1927); CONNALLY v GENERAL CONSTRUCTION CO, 269 
US 3$5 (1926); WINTERS v NEW YORK, 333 US 507 
(1943). The vice of such statutes is not 
alone their failure to give warning to pro­
hibited conduct, but the breadth of room they 
leave for jury arbitrariness and the influ­
ence of impermissible considerations, NAACP v 
BUTTON, 371 US 415, 432-433 (1963); FREEDMAN v 
MARYLAND, 3^0 US 51, 56 (1965); LEWIS, The 
Sit-In Cases: Great Expectations, 1963 Supreme



-42-
Court Review 101, 110; Note, 109 U Pa L Rev 
67> 90 (i960), including racial considerations 
see LOUISIANA v UNITED STATES, 330 US 145 
(1965); DOMBROWSKI v PFISTER, 330 US 479 (1965); 
COX v LOUISIANA, 379 US 536 (1965), and every 
other insidious urging of caprice Or prejudice.

Under these decisions, it could scarcely be 
contended that a North Carolina statute would 
be valid which provided: '’whoever is found con- 
demnable in the discretion of a jury shall be 
guilty of an offense." Yet we submit that 
this suppositious statute stands no different­
ly in light of the concerns of the Due Pro­
cess Clause than the unregulated sentencing 
practice under which Robert Roseboro was con­
demned to die. The statute, it is true, deals 
with crime, and North Carolina's sentencing 
practicing with punishment. But a practice 
that jeopardizes the integrity and reliability 
of the sentencing process is as unconstitu­
tional as one that similarly affects the 
built-determining process. WITHERSPOON v 
ILLINOIS, 391 US 510, (1963); MEMPA v RHAY,
339 US 123, (1967); McCONNELL v RHAY, and 
STILTNER v RHAY, 37 US L Week 3131 (US Oct 
14, 1963). In WITHERSPOON, 391 US at 521 n 
20, the court noted that while sentencing 
choice— and, in particular, the choice of 
life or death may be:

"different in kind from a finding that the 
defendant committed a specified criminal 
offense,...this does not mean that basic 
requirements of procedural fairness can be 
ignored simply because the determination 
involved in this case differs in some re­
spects from the traditional assessment of 
whether the defendant engaged in a proscrib­
ed course of conduct."
Traditionally, of course, it may have been 

thought that "fair notice" questions were 
raised by regulations defining offenses but 
not by those prescribed punishment. Yet, 
is it not apparent that the vice of the



-43-
"whoever-is-found-condernnable" statute has lit­
tle to do with notice? The statute is bad not 
because a man does not know how to behave 
consistently with it, but because, HOWEVER HE 
BEHAVES, HE MAY BE ARBITRARILY AND CAPRICIOUSLY 
TAKEN BY THE HEELS. The precise vice inheres 
in unregulated jury discretion to sentence a 
convicted robber to life or death. He too may 
be dealt with arbitrarily, his life extinguish­
ed for any reason or none. Surely he is, at 
the same time, under North Carolina’s single 
verdict practice, found guilty of a defined 
crime. That conviction, however, cannot con­
stitutionally be given the effect of stripping 
him of every civil right, including the fun­
damental right to due process of law. E.g. 
SPECHT v PATTERSON, 386 US 605 (1967).

GIACCIO v PENNSYLVANIA, 382 US 399 (1966), 
supports, if it does not compel, the conclu­
sion that unfettered jury discretion in capi­
tal sentencing is unconstitutional. What was 
at issue there, as here, was a state practice 
governing disposition. No "fair notice" 
problem was involved— except, of course, the 
problem, noted by the court, that it was im­
possible for defense counsel at trial to know 
what issues he was trying, as it is in a capi­
tal case tried to a jury having limitless 
sentencing power.8 That decision turned 
squarely on the proposition that the Fourteenth 
Amendment forbade Pennsylvania to leave its

3The Court noted specifically that the prob­
lem of fair notice was only one of the prob­
lems with vague, standardless laws;

"It is established that a law fails to meet 
the requirements of the Due Process Clause 
if it is so vague and standardless that it 
leaves the public uncertain as to the con­
duct it prohibits OR LEAVES JUDGES AND JURORS 
FREE TO DECIDE, WITHOUT ANY LEGALLY FIXED 
STANDARDS, WHAT IS PROHIBITED AND WHAT IS NOT 
IN EACH PARTICULAR CASE." (3#2 US at 402- 
403; emphasis added)



-44-
"jurors free to decide, without any legal 
fixed standards," 3^2 US at 402-403, whether 
to impose upon a defendant a rather small 
item of costs.^ It is not evident why, in the 
infinitely more significant matter of senten­
cing men to death, North Carolina juries can 
be permitted the same lawless and standard­
less freedom.

Nor does footnote $ in the GIACCIO opinion 
blunt the implications of the GIACCIO holding 
for our present purposes. In that footnote, 
a majority noted that it intended to cast no 
doubt on the constitutionality of leaving to 
juries finding defendants guilty of a crime 
the power to fix punishment "within legally 
prescribed limits." The precise problem in 
this case is that there were no "legally pre­
scribed limits," in any realistic sense to 
the jury’s discretion. Further, that foot­
note speaks to jury sentencing generally, not 
capital sentencing.

"It should be understood that much more is 
involved here than a simple determination 
of sentence. The State... empowered the 
jury in this case to answer "yes" or "no" 
to the question whether this defendant was 
fit to live." (WITHERSPOON v ILLINOIS,
391 US 510, 521 n 20 (1968))
Given the imprecision of the sentencing art, 

even when performed by judges, see TIGNER v 
TEXAS, 310 US 141, 148-149 (1940), it may well 
be that juries can constitutionally be given 
some discretion in selecting a smaller or 
larger fine, a long or shorter term of years,

^No First Amendment or other federal rights 
demanding the special protection afforded by 
a heightened requirement of statutory specifi­
city, see UNITED STATES v NATIONAL DAIRY■PRODS 
CORP, 372 US 29, 36 (1963), were involved in 
GIACCIO.



45-
particularly where the range of choice is rela­
tively circumscribed and the effect of the 
choice somewhat qualified by parole statutes 
and the continuing availability of post con­
viction process to rectify after-discovered 
mistakes made at the trial. But the degree 
of arbitrariness allowed a state is not so 
liberal where grave and irremediable punitive 
exactions are at stake, see SKINNER v OKLA­
HOMA, 316 US 535 (1942); and none is graver 
or more irremediable than the sentence of 
death.

We do not contend here that the due process 
clause forbids entirely the exercise of dis­
cretion in sentencing— even by a jury and 
even in a capital case. Ways may be found to 
delimit and guide discretion, narrow its 
scope, and subject it to review; and these may 
bring a grant of discretion within constitu­
tionally tolerable limits. Whether the ap­
proach taken by a state such as Nevada, which 
makes certain reviewable findings of fact the 
indispensable condition of imposing capital 
punishment (See Nev Rev Stat 200.363 (1967); 
or the approach of California, which has adum­
brated by judicial decision at least some of 
the impermissible considerations against which 
jurors are to be cautioned (see PEOPLE v LOVE, 
53 Cal 2d S43, 350 P 2d 705 (I960); or that 
of the Model Penal Code, which both establish­
es prerequisite findings and enumerates ag­
gravating and mitigating circumstances (see 
American Law Institute, Model Penal Code, 
sec 210.6 [POD, May 4, 1962], pp 123-132); or 
that of the numerous states which provide 
plenary review of capital jury sentencing by 
trial and/or appellate courts, would be con­
stitutional, is not the question presented.

Concededly, the goals of sentencing are com­
plex and in designing devices for achieving 
them the States must have some tolerance.

But as the issue of Robert Roseboro's sen­
tence was submitted to the jury in its sole



-46-
discretion under North Carolina procedure, 
the attention of the jurors was directed to 
none of the purposes of criminal punishment, 
nor to any pertinent aspect or aspects of the 
defendant's conduct. They were not invited 
to consider the moral heinousness of the de­
fendant's acts, his susceptibility or lack of 
susceptibility to reformation, the extent of 
the deterrent effect of killing the defendant 
"pour dfecourager les autres." Cf Packer, Mak­
ing the Punishment Fit the Crime, 77 Harv L 
Rev 1071 (1964). They were permitted to 
choose between life and death upon conviction 
for any reason, rational or irrational, or for 
no reason at all5 at a whim, a vague caprice, 
or because of the color of Robert Roseboro's 
skin. In making the determination to impose 
the death sentence, they acted wilfully and 
unreviewably, without standards and without 
direction. Nothing assured that there would 
be the slightest thread of connection between 
the sentence they exacted and any reasonable 
justification for exacting it. Cf SKINNER v 
OKLAHOMA, supra. To concede the complexity 
and interrelation of sentencing goals, see 
PACKER, supra, is no reason to sustain a pro­
cedure which ignores them all. It is futile 
to put forward justification for a death so 
inflicted; there is no assurance that the in­
fliction responds to the justification or will 
conform to it in operation.

IX. THE NORTH CAROLINA SPLIT VERDICT PRO­
CEDURE WHICH REQUIRES THE JURY IN A CAPITAL 
CASE TO DETERMINE GUILT AND PUNISHMENT SIMUL­
TANEOUSLY AND A DEFENDANT TO CHOOSE BETWEEN 
PRESENTING MITIGATING EVIDENCE ON THE PUNISH­
MENT ISSUE OR MAINTAINING HIS PRIVILEGE AGAINST 
SELF-INCRIMINATION ON THE GUILT ISSUE VIOLATES 
THE FIFTH AND FOURTEENTH AMENDMENTS.
(Assignment III; Exceptions 2, 137 and 133;
R pp 21, 643)
North Carolina's practice of submitting



47-
simultaneously to the trial jury the two is­
sues of guilt and punishment in a capital case 
compounds the vice of lawless jury discretion 
just discussed, by making it virtually impos­
sible for the jurors to exercise their discre­
tion in any rational fashion. Whereas unfet­
tered discretion allows the jury arbitrary 
power, the single-verdict trial virtually re­
quires that that power be exercised arbitrarily. 
This is so because information that is abso­
lutely requisite to rational sentencing choice 
cannot be presented to the jury except at the 
cost of an unfair trial on the issue of guilt 
or innocence, and of enforced waiver of the 
defendant's privilege against self-incrimina- 
t ion.

Logical presentation requires that our argu­
ments relating to unfettered jury discretion 
and to the single-verdict procedure be stated 
separately. Either argument alone is, in our 
view, sufficient to vitiate defendant’s sen­
tence of death under the Fourteenth Amendment. 
However, it must be remembered that the vices 
of the challenged procedures are mutually com­
pounding. Together, these procedures deprived 
defendant of his right to live after trials 
utterly lacking in the rudimentary fairness and 
regularity that due process assuredly demands 
when a state empowers its jurors "to answer 
’yes' or ’no’ to the question, whether this 
defendant was fit to live." WITHERSPOON v 
ILLINOIS, 391 US 510, 521 n 20 (1963).

Under North Carolina practice, the jury hears 
evidence simultaneously on the issues of guilt 
and punishment, and resolves both issues at a 
single sitting. In this procedure, there is 
no separate hearing on penalty apart from the 
criminal trial itself, and no opportunity for 
allocution or for the presentation of evidence 
in mitigation of sentence after the finding 
of guilt but prior to the life-death sentencing 
choice.

The effect of this method of proceeding is



obvious, and devastatingly prejudicial to the 
accused. He is whipsawed between his rights 

allocution and to present evidence to sup­
port a rational sentencing decision, and his 
privilege against self-incrimination. If he 
wishes personally to address the jurors with 
respect to their decision whether he shall 
live or die, he can do so only at the price 
of taking the stand and thereby surrendering 
his privilege. He is subject not only to in­
criminating cross examination but also to im­
peachment. If he exercises the privilege, on 
the other hand, he risks an uninformed, arbi­
trary and uncompassionate death verdict.
Should he wish to present background and char­
acter evidence to inform the jury's sentencing 
choice, he may do so only at the cost of open­
ing the question of character generally prior 
to the determination of guilt or innocence, 
thereby risking the receipt of bad-character 
evidence ordinarily excludable because highly 
prejudicial on the guilt question. Or he may 
avoid that risk of prejudice by confining the 
evidence at trial to matters relevant to guilt, 
letting the jury sentence him to life or death 
in ignorance of evidence as to his character, 
evidence in mitigation and explanation or any 
evidence which might tend to compel a merciful 
sentence.

A procedure of this sort is unconstitution­
al, both because it results in a fundamentally 
unfair trial and because it infringes the sev­
eral federal constitutional rights which it 
sets at loggerheads. To appreciate why this 
is so, one must begin by recognizing only the 
obvious point that much evidence which is not 
relevant to the issue of guilt of the charge 
for which the capital accused is on trial—  
evidence which, indeed, is prejudicial and 
inadmissible on the issue of guilt— is highly 
relevant to a non-arbitrary decision on the 
question of punishment. "Modern concepts 
individualizing punishment have made it all 
the more necessary that a sentencing judge not 
be denied an opportunity to obtain pertinent



-49-
inf orraation by a requirement of rigid adher­
ence to restrictive rules of evidence prop­
erly applicable to the trial." WILLIAMS v 
NEW YORK, 337 US 241, 247 (1949); see also 
WILLIAMS v OKLAHOMA, 35& US 576, 5^5 (1959); 
WITHERSPOON v ILLINOIS, 391 US 510, 521 n 20 
(196S). North Carolina, of course, has recog­
nized this general principle and evidence 
bearing on sentencing is freely admitted.

A fortiori, a jury engaged in the task of 
determining whether a defendant shall live or 
die needs much information that cannot and 
should not be put before it within the con­
fines of traditional and proper limitations 
on the proof allowable as going to guilt or 
innocence. It is fair to say that the over­
whelming weight of considered contemporary 
judgment concurs in the conclusion that, whe­
ther discretionary death sentencing be done 
by a judge or jury, it is the imperative con­
dition of rational sentencing choice that the 
sentencer consider more information about the 
individual defendant than is likely or permis­
sibly forthcoming on trial of the guilt issue. 
E. g. House of Commons Select Committee on 
Capital Punishment, Report (HMSO 1930), para 
177; Royal Commission on Capital Punishment, 
1949-1953), Report (HMSO 1953) (Cmd No. S932), 
6, 12-13, 195, 201, 207; American Law Insti­
tute, Model Penal Code, Tent Draft No. 9 (May 
S, 1959), comment to sec 201.6 at 74-76; New 
York State Temporary Commission on revision of 
the Penal Law and Criminal Code, Interim Re­
port (Leg Doc 1963, No. S) (February 1, 1963), 
15-16; HLA Hart, Murder and the Principles 
of Punishment; England and the United States,
52 Lw UL Rev 43B-439 (1957); Knowlton, Problems 
of Jury Discretion in Capital Cases, 101 U Pa 
L Rev 1099, 1109, 1135-1136 (1953); Handler, 
Background Evidence in Murder Cases, 51 J Crirn 
L, Crim and Pol Sci 317, 321-327 (i960).

The single-verdict procedure therefore con­
fronts a North Carolina defendant on trial 
for his life, with a gruesome Hobson's choices



-50-
He has a crucial interest— amounting, in­

deed, to an independent federal constitutional 
right, see SKINNER v OKLAHOMA, 316 US 535 
(1942)— that his sentence be rationally de­
termined. The Constitution guarantees him, 
also, certain procedural rights in this sen­
tencing process: inter alia, "an opportunity 
to be heard...and to offer evidence of his 
own." SPECHT v PATTERSON, 336 US 605, 610 
(1967); MEMPA v RHAI, 339 US 123 (1967). As 
the basis for a rational sentencing determina­
tion, he would want to present to the senten­
cing jurors evidence of his history, his 
character, his motivation, and the events lead­
ing up to his commission of the crime of which 
he is guilty (if he is guilty). The common- 
law gives him a right of allocution which is 
an effective vehicle for this purpose, as well 
as for a personal appeal to the jurors, where 
capital sentencing is discretionary. And the 
Supreme Court has already recognized that allo­
cution may in some circumstances rise to the 
dignity of a due process command. 5

5HILL v UNITED STATES, 360 US 424, 423-429 
(1962); see ANDREWS v UNITED STATES, 373 US 
334, 336-337 (1963). Acting on these opin­
ions, several circuit courts have found allo­
cution on a constitutional right. GREEN v 
UNITED STATES, 313 F 2d 6 (1st Cir 1963), cert 
denied 372 US 951 (1963); UNITED STATES v 
JOHNSON, 315 F 2d 714 (2d Cir 1963), cert de­
nied, 375 us 971 (1964); BEHRENS v UNITED 
STATES, 312 F 2d 223 (7th Cir 1962), aff'd 375 
US 162 (1963).

The HILL case holds that absent "aggravat­
ing" circumstances (363 US at 429), failure of 
a sentencing judge to invite the defendant to 
exercise his right of allocution does not vio­
late due process. But HILL was not a capital 
case, nor a case in which counsel was denied 
the right to present pertinent information to 
the sentencer, nor "a case where the defendant 
was affirmatively denied an opportunity (Cont'd)



-51
But to exercise his right of allocution be­

fore verdict on the guilt issue, a North Caro­
lina defendant in a capital case is required

r

^(Cont’d) to speak during the hearing at 
which his sentence was imposed...[nor where 
the sentencer] was either misinformed or unin­
formed as to any relevant circumstances...[nor 
where it was even claimed] that the defendant 
would have had anything ac all to say if he 
had been formally invited to speak.” Ibid. In 
a North Carolina capital case, the following 
"aggravating circumstances" are presented; (A) 
the circumstances that the right of allocu­
tion has had unique historical historical sig­
nificance in capital cases, See COUCH v UNITED 
STATES, 235 F 2d 519, 521 (DC Cir 1956) (opin­
ion of Judge Fahy); COLEMAN v UNITED STATES,
334 F 2d 553, 566 (DC Cir 1964) (opinion of 
Judges Burger and McGowan); (B) the circum­
stances that in capital cases matters which 
may affect the sensitive discretion of the jury 
in its life-death choice are traditionally 
viewed with a stricter eye to possibilities of 
prejudice than other matters in the criminal 
process, see PEOPLE v HINES, 6l Cal 2d 164,
390 P 2d 393, 37 Cal Rptr 622 (1964); (C) the 
circumstance that North Carolina single ver­
dict procedure "affirmatively" denies a defen­
dant his opportunity to address the jury on 
sentence, within the meaning of HILL; (D) the 
circumstance that, for the reasons set out a- 
bove in text, a jury making a capital senten­
cing choice on no other information than the 
trial of the guilt issue allows is invariably 
"either misinformed or uninformed" within the 
meaning of HILL; (E) the circumstance that, 
under the North Carolina procedure, not only 
is the defendant denied the right to make a 
personal statement without giving up her con­
stitutional privilege against self-incrimina­
tion, but he is similarly denied the right to 
have his counsel supply evidence on the senten­
cing issue without incurring the risks (Cont'd)



-52-
to forego his constitutional privilege against 
self-incrimination. MALLOY v HOGAN* 378 US 1
(1964) ; GRIFFIN v CALIFORNIA, 380 US 609
(1965) . He is required to take the stand and 
be subjected to cross examination that could 
incriminate him.6 If he declines to surren­
der the privilege, and does not address the 
jury, the jurors who sentence him to die hear 
neither his case for mercy, nor even the 
sound of his voice.

UNITED STATES v JACKSON, 390 US 570 (1968), 
holds that the exercise of the Fifth Amend­
ment privilege in criminal trials may not be 
penalized or needlessly burdened. Simul­
taneous submission to the jury of the guilt 
and death penalty issues results in just such 
a needless burden. The burden is the obvious 
and onerous one that the defendant must go to 
his death like a dumb animal, forbidden to 
plead his case and incapable even of impress­
ing the human quality of his voice on his 
sentencing jury. It is a needless burden

(Cont'd) of prejudice on the guilt issue, 
see the JOHNSON and BEHREN cases cited, supra; 
also GADSDEN v UNITED STATES, 223 F 2d 627 
(DC Cir 1955); JENKINS v UNITED STATES, 249 F 
2d 105 (DC Cir 1957).

^ Even apart from cross examination, allo­
cution before verdict of guilt destroys the 
privilege, for much of the value of the defen­
dant’s personal statement to his sentencer 
derives from its spontaneity, see GREEN v 
UNITED STATES, 365 US 301, 304 (1961) (opin­
ion of Mr. Justice Frankfurter). This same 
spontaneity— unguided by the questions of 
counsel— leaves the defendant impermissibly 
unprotected as he appears before a jury which 
has not yet decided on his guilt. Cf FERGUSON 
v GEORGIA, 365 US 570 (1961).



-53-
because the State has ample means to avoid 
it by, for example, a bifurcated jury trial, 
judge sentencing, or the elimination of the 
death penalty., Consistently with JACKSON, 
SIMMONS v UNITED STATES, 390 US 377, 394 (1966), 
points the way to condemnation of the ,sunde­
niable tension" between constitutional rights 
presented here. The question in SIMMONS was 
whether a defendant might be obliged either 
to give up what he believed to be a valid 
Fourth Amendment claim or "in legal effect, 
to waive his Fifth Amendment privileges 
against self-incrimination”; and the Supreme 
Court there held it "intolerable that one 
constitutional right should have to be sur­
rendered in order to assert another." Ibid.

But the single-verdict practice which peti­
tioner challenges presents grave problems in 
addition to this conflict between the right 
of allocution and the privileges. If the de­
fendant seeks to present to the jury evidence 
of his background and character, apart from 
his own statement, the prosecution may coun­
ter with evidence of the defendant’s bad 
character, including evidence of unrelated 
crimes. The prohibition which ordinarily 
keeps this sort of evidence from the trial 
jury sitting to determine the issue of guilt 
is "one of the most fundamental notions known 
to our law." UNITED STATES v BENO, 324 F 2d 
562, (2d Cir 1963), arising "out of funda­
mental demand for justice and fairness which 
lies at the basis of our jurisprudence,"
LOVELY v UNITED STATES, 3b0 US 310 (1959). 
Allowing the trial jury access to unfavorable 
background information, however pertinent to 
the issue of punishment, and however clearly 
limited by jury instructions to that use, may 
itself amount to a denial of due process of 
law. Compare UNITED STATES ex rel SCOLERI v 
BANMILLER, 310 F 2d 720 (3rd Cir 1962), cert 
denied, 374 US 626 (1963), with UNITED STATES 
ex rel RUCKER v MYERS, 311 F 2d 311 (3rd Cir .. 
1962), cert denied 374 US 844 (1963). In any 
event, the possibility that the background



-54-
information will be strongly prejudicial 
forces a defendant to a"choice between a meth­
od which threatens the fairness of the trial 
of guilt or innocence and one which detracts 
from the rationality of the determination of 
the sentence." American Law Institute,
Model Penal Code, supra, at 64-

In this aspect, the practice of simultane­
ous submission of guilt and sentence to a jury 
is much akin to New York’s former practice 
of simultaneously submitting to a jury the 
two issues of the voluntary nature of a con­
fession and the guilt of the accused. The 
New York practice was, of course, struck down 
in JACKSON v DENNO, 373 US 363 (1964), where 
the Court recognized that joint jury trial of 
the two issues prevented either from being 
"fairly and reliably determined." 373 US at 
339; see id. at 336-391. One fault of the 
practice was that:

n....an accused may well be deterred from 
testifying on the voluntariness issue when 
the jury is present because of his vulner­
ability to impeachment by proof of prior 
convictions and broad cross examination... 
Where this occurs the determination of 
voluntariness is made upon less than all 
of the relevant evidence. (373 US at 339 
n 16).

And see BRUTON v UNITED STATES, 391 US 123 
(1963). It is in precisely the same manner 
that single-verdict capital sentencing tends 
either to make trials of guilt unfair— by 
forcing the defense to present evidence po­
tentially helpful on the punishment issue 
and prejudicial on the issue of guilt— or to 
produce the unfair result that men are sen­
tenced to death "upon less than all of the 
relevant evidence: if the defense declines to 
take that risk.7

?_Such a "'grisly', hard, Hobson’s choice" is itself so unfair as to violate due process. See WHITUS v BALKGOM, 333 F 2d 496, 499 (5th oir 19d 4J.



-55-
This latter alternative was the course of 

Robert Roseboro's trial, and its result. Not 
only, in such a case, is the jury empowered 
to act arbitrarily; it is virtually compelled 
to do so for want of information upon which 
nonarbitrary choice can be based. In short, 
although the due process clause guaranteed 
Roseboro a fair trial on the issue of pun­
ishment, e.g. TOWNSEND v BURKE, 334 US 736 
(1948), as well as on the issue of guilt, 
e.g. IRWIN v DOWD, 366 US 717 (1961), the 
single-verdict procedure employed in his 
case required him to purchase the second of 
these at the cost of the first. Of FAY v 
NOIA, 372 US 391, 440 (1963).

As the question in UNITED STATES v JACKSON, 
390 US 570 (1968), was whether the provision 
of the Federal Kidnapping Statute reserving 
the infliction of the death sentence to the 
exclusive province of the jury "needlessly 
encourages" guilty pleas and jury waivers 
and therefore "needlessly c-hill[s] the exer­
cise of basic constitutional rights," 390 
US at 582, 583, so the question here is 
whether the simultaneous trial of guilt and 
punishment NEEDLESSLY ENCOURAGES the waiver 
of the right to remain silent or NEEDLESSLY 
CHILLS the right to put in evidence relevant 
to rational sentencing and the right of al­
locution. "The question is not whether 
the chilling effect is 'incidental' rather 
than intentional; the question is whether 
that effect is unnecessary and therefore 
excessive." 390 US at 582. We submit the 
answer to the question is clear, in light 
of the ready availability of alternative 
modes of procedure not - involving the same 
destructive collision of the defendant's 
rights— such as the split-verdict procedure 
now in use in a number of jurisdictions8

gA man tried on a capital charge in Cali­
fornia, Connecticut, New York, Pennsylvania 
and Texas receives first a hearing (Cont'd.)



-56-
and uniformly recommended by modern commen­
tators, see FRADY v UNITED STATES, 34$ F 2d 
$4, 91 n 1 (DC Cir 1965) (McGowan, Jr.)5 
cf UNITED STATES v CURRY, 35$ F 2d 904, 915 
(2d Cir 1365) . * 9

$ (Continued) on innocence or guilt; then, 
after a finding of guilt, a separate hearing 
on the issue of punishment. CAL PENAL CODE, 
sec 190.1 (Supp 1966); Conn Gen Stut Rev 
sec 53-10 (Supp 1965); NY Pen Law, secs 125.30, 
125-35 (Cum Supp 196$); Pa Stat Ann, tit 1$, 
sec 4701 (1963); Tex Code Grim Pro, Art 37-07 
(1967). See also sec 210.6 of the Model Penal 
Code, n 44, supra. In view of the availabili­
ty of this alternative "split-verdict" mode 
of procedure which does not entail the depri­
vation of a defendant's rights, the consti­
tutionally unfair single-verdict procedure 
used in North Carolina can obviously not be 
defended on the ground of necessity. Peti­
tioners, of course, do not contend that the 
State is constitutionally compelled to have 
a bifurcated trial. The bifurcated trial is 
only one of the alternatives available to 
the State which do not entail the needless 
burden of capital defendant’s constitutional 
rights here complained of.

9Cf WITHERSPOON v ILLINOIS, 391 US 510, 520 
n 1 $ (196$), noting that if a defendant could 
establish that a jury which was representa­
tive with respect to penalty was NOT represen­
tative with respect to guilt,

"the question would then arise whether the 
State's interest in submitting the penalty 
issue to a jury capable of imposing capital 
punishment may be vindicated at the expense 
of the defendant's interest in a completely 
fair determination of guilt or innocence—  
given the possibility of accommodating both 
interests by means of a bifurcated trial, us­
ing one jury to decide guilt and another to 
fix punishment."



-57-
X. THE IMPOSITION OF THE DEATH SENTENCE 

UPON ROBERT ROSEBORO, A SIXTEEN-YEAR OLD YOUTH, 
WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.
(Assignment IV; Exceptions 2, 10 and 11 (R pp
21, 44, 45))

The cruel and unusual punishment clause of 
the Eighth Amendment to the Constitution of 
the United States which is applicable to the 
states, ROBINSON v CALIFORNIA, 370 US 660 
(1962), derives its meaning "from the evolv­
ing standards of decency that mark the prog­
ress of a maturing society." TROP v DULLES,
356 US $6 , 101 (195&)« The holding in TROP 
simply reaffirmed the statement the Court 
made in WEEMS v UNITED STATES, 217 US 349,
37S (1910):

"The clause of the Constitution...may there­
fore be progressive, and is not fastened to 
the obsolete, but may acquire meaning as 
public opinion becomes enlightened by a 
humane justice."
The question here is not whether GS 14-17, 

which provides a penalty of death in murder 
cases where the jury so recommends, is un­
constitutional per se, but it is rather whe­
ther the punishment can be inflicted upon 
Robert Roseboro, a sixteen-year old black 
youth, in a state where in practice that pen­
alty is all but obsolete.

The Government envisaged for this country 
by the Constitution is a democratic one and 
in a democracy there is little reason to 
fear that penal laws will be placed upon the 
books which, in their general application, 
would affront the public conscience. The 
real danger concerning cruel and inhuman laws 
is that they will be enacted in a form such 
that they can be applied sparsely and spottily 
to unhappy minorities, whose numbers are so 
few, whose plight so invisible and whose per­
son so unpopular that society can readily 
bear to see them suffer torments which would



-53
not for a moment be accepted as penalties of 
general application to the populace.

Herein is found the difference between the 
judgment which the legislator makes, respond­
ing politically to public conscience, and the 
judgment which a court must make under the 
obligation which the Eighth Amendment imposes 
upon it to respond rationally to public con­
science. A legislator may arbitrarily put a 
law on the books whose general, even-handed, 
non-arbitrary application the public would ab­
hor - precisely because both he and the pub­
lic know that it will not be enforced gener­
ally, even-handedly, non-arbitrarily. But a 
court cannot sustain such a law under the 
Eighth Amendment. It cannot do so because 
both the Amendment itself and our most funda­
mental principles of due process and equal 
protection forbid American government the de­
vices of arbitrariness and irregularity —  
even as a sop to public conscience.

To put the matter another way, there is 
nothing in the political process by which pub­
lic opinion manifests itself in legislated 
laws that protects the isolated individual 
from being cruelly treated by the state; and 
public conscience often will support laws en­
abling him to be so mistreated, provided that 
arbitrary selection can be made in such a 
fashion as to keep his numbers small and the 
horror of his condition mute. Legislators 
neither must nor do take account of such in­
dividuals. But it is the precise business of 
courts to take account of them, and to disal­
low under the Eighth Amendment the application 
to them of penalties so harsh that public con­
science would be appalled by their less arbi­
trary application.

In 1953, when the Supreme Court decided 
TROP v DULLES, supra, it saids

"Whatever the arguments may be against
capital punishment —  and they are forceful —



-59-
the death penalty has been employed through­
out our history, and, IN A DAY WHEN IT IS 
STILL WIDELY ACCEPTED, it cannot be said 
to violate the constitutional concept of 
cruelty." (Emphasis added) 366 US at 99.

Whatever the facts were in 1958, it cannot 
now be said that the death penalty "is still 
widely accepted," Far from being "widely 
accepted," the death penalty today is with 
rare public unnanimity rejected and repudiated. 
The latest cumulative report of the highly 
reliable figures on executions maintained by 
the Federal Bureau of Prisons since 1939 
shows that 3,859 persons were executed under 
civil authority in the United States between 
1930 and 1967. United States Department of 
Justice, Bureau of Prisons, National Prisoner 
Statistics, No. 42, Executions 1930-1967 
(June 1968), p 7 . Of these 3,859 only 191 
were executed between I960 and 1967; only 25 
during the years 1964-68. Ibid. The trend 
is shown quite adequately by setting out the 
figures for the number of executions during 
each of the following representative years;

Total number of Executions
in the United States1930 ------------------155

1935 ------------------199
1940 ------------------124
1945 ------------------1171950 -----------------  82
1955 -----------------  76
I960 - ---------  56
1961 --------  42
1962 — --------  47
1 9 6 3 -----------------  21
1 9 6 4 -----------------  15
1965 ------------------  7
1966 - - -
1 9 6 7 ------------------  2

During the calendar year 1968, there were 
no executions in the United States.
Therefore, we have a situation in North Caro­

lina and in most other states where the death



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penalty remains but it is hardly ever applied. 
Since the jury is given no standards to apply 
in deciding whether a capital defendant shall 
live or die and since the death penalty sel­
dom is chosen, it is obvious that the deci­
sion is arbitrary and capricious.

”A small and capricious selection of offen­
ders have been put to death. Most persons 
convicted of the same crimes have been im­
prisoned. Experienced wardens know many 
prisoners serving life or less whose crimes 
were equally, or more atrocious, than those 
of men now on death row.'3 (Statement of 
Attorney General Ramsey Clark, before the 
Subcommittee on Criminal Laws and Proce­
dures of the Senate Judicial Committee, on 
S 1760, To Abolish the Death Penalty, July 
2, 196$, Department of Justice Release, p 2)

Since the jury is guided by no standards, any 
prejudices harbored by a juror might produce 
the result which comes now before the court.

It is also important, we think, that the 
rare, unusual, arbitrary use of a harsh penal­
ty operates to deprive it of any functional 
in the rational scheme of a state’s penal law. 
Punishment used in this manner ceases to be 
an instrument of public justice or of rea­
soned penal policy and hence it ceases to 
have any claim to legitimacy that might be 
set off against the commands of the Eighth 
Amendment.

XI. DEFENDANT’S INDICTMENT BY A GRAND JURY 
AND TRIAL BY A PETIT JURY FROM WHICH MEMBERS 
OF HIS RACE AND ECONOMIC CLASS WERE ARBI­
TRARILY AND SYSTEMATICALLY LIMITED AND EX­
CLUDED VIOLATED DEFENDANT’S RIGHTS UNDER THE 
SIXTH AND FOURTEENTH AMENDMENTS.
(Assignment V, Exception 4 (R pp 23-29)and 
Assignment VII, Exceptions 5, 6, 7, 12 and 
56 (R pp 39, 40, 41, 42, 110 and 394))



-6 1-
Defendant brings forward the above assign­

ments of error and exceptions and refers the 
court, in addition to the above pages in the 
record on appeal, to pages 47-107 and 110 of 
the record on appeal. Defendant cites to the 
Court the following cases in support of his 
contention that the trial court erred in de­
nying his motion to quash the indictment and 
the several venires of petit jurors. WHITUS 
v GEORGIA, 385 US 545, 17 L ed 2d 599 (1967); 
ARNOLD v NORTH CAROLINA, 385 US 773 (1964); 
STATE v WILSON, 262 NG 119, 137 SE 2d 109 
(1964); STATE v LOWRY, 263 NC 536, 139 SE 2d 
536 (1965); EUBANKS v LOUISIANA, 356 US 584 
(1953); HERNANDEZ v TEXAS, 347 US 475 (1954); 
AVERY v GEORGIA, 345 US 559 (1954); PATTON v 
MISSISSIPPI, 332 US 463 (1947); PIERRE v 
LOUISIANA, 306 US 354 (1939); NORRIS v ALA­
BAMA, 294 US 537 (1935); FAY v NEW YORK, 332 
US 261, 91 L ed 2043 (1947); See also STATE 
v WRIGHT, 274 NC 330 (1968); STATE v YOES,
271 NC 616 (1967).

XII. THE TRIAL COURT ERRED IN DENYING DE­
FENDANT'S MOTION FOR A CHANGE OF VENUE.
(Assignment VI; Exception 3 (R p 23))
In ruling upon the motion for a change of 

venue the trial court found as a fact that 
the crime charged against the defendant had 
received widespread publicity not only in 
Cleveland County where the indictment was 
brought, but also in the surrounding coun­
ties of Gaston and Rutherford. The court
found that it would be impossiole to find an 
impartial jury in those counties. The court 
then found that defendant would not be preju­
diced by a trial in Cleveland County with a 
jury drawn from some other county. Defendant 
submits that this latter finding is incon­
sistent with the two former findings and the 
failure of trial court to change the venue in 
fact denied to the defendant his right to a 
fair and impartial trial. Defendant recog­
nizes that the trial court has great discre­
tion in change of venue questions: NC GS 1-84;



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NC GS 9-12j STATE v PORTH, 269 NC 329, 153 
SE 2d 10 (196?) ; but that discretion is not 
absolute and is subject to review for possi­
ble abuse. SHEPPARD v MAXWELL, 384 US 333,
16 L ed 2d 600. Defendant therefore submits 
that where, as here, the court makes obviously 
inconsistent findings in the exercise of that 
discretion, that inconsistency rises to con­
stitutional error, at least in a capital case, 
and constitutes reversible error.

XIII. THE TRIAL COURT ERRED BY ADMITTING 
INTO EVIDENCE CERTAIN EXHIBITS OF THE STATE 
WHICH WERE INCOMPETENT, IMMATERIAL, INFLAMMA­
TORY AND PREJUDICIAL TO THE DEFENDANT.
(Assignment XXIV, Exceptions 77, 79, 86, 87,
88, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 
101, 102, 103, 104, 105, 106, 107, 108, 109, 
113, 115, 121, 122 and 133 (R pp 540, 541,
563, 565, 577, 578, 579, 580, 581, 582, 587, 
588, 589, 590, 591, 592, 594, 611, 617 and 
641.)
Defendant submits that State’s Exhibits 1,

2, 3, 4, 5, 6, 13, 15, 1 6, 17, 18, 19, 20, 21, 
22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 3 2, 34, 
35, 36, 37, found in the record at the page 
numbers listed above were inadmissible into 
evidence under the general rules of the admis­
sibility of evidence in that they were irrele­
vant, incompetent, immaterial, remote and 
prejudicial to the defendant and, as such, 
served only to inflame and prejudice the jury. 
Stansbury, NC Evidence, secs 76-81. See also 
STATE v FOUST, 258 NC 453, 128 SE 2d 889 (1963) 
and STATE v MILLER, 271 NC 646, 157 SE 2d 335 
(1967). All of the above evidence, with the 
exception of the defendant’s own personal 
clothing and belongings were purely circum­
stantial and had no connection whatsoever with 
the defendant.

If this Court should be of the opinion that 
no one single item of erroneously admitted 
evidence constituted prejudicial error, it is



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submitt ed that the cumulative effect of all 
of this evidence was to prejudice the jury, 
thus denying to the defendant fundamental 
fairness and due process. The defendant is 
therefore entitled to a new trial based on 
erroneously admitted evidence.

XIV. THE TRIAL COURT ERRED BY ADMITTING 
INTO EVIDENCE OVER DEFENDANT’S OBJECTION THE 
TESTIMONY OF STATE’S WITNESSES WHICH WAS IN­
COMPETENT, IRRELEVANT, IMMATERIAL, INFLAMMA­
TORY AND PREJUDICIAL TO THE DEFENDANT.
(Assignment XXII, Exceptions 73-76, 7$, $0-$5, 
$9, 90, 92, 96, 104, 106, 107, 110-114, 116- 
120, 123-128; (R pp 530, 531, 534, 535, 541,
557, 55S, 562, 566, 575, 57$, 5$0, 5$9, 590,
592, 593, 594, 614, 616, 617, 6 2 1, 625, 627)
Assignment XV, Exception 135 (R p 642))

Defendant submits that the testimony which 
is the subject of the above exceptions appear­
ing at the pages of the record indicated, had 
the effect, singly and cumulatively, or both, 
of prejudicing the jury against the defendant 
thus denying him a fair trial. See STATE v 
FOUST, supra; STATE v MILLER, supra; Stans- 
bury, North Carolina Evidence. This testi­
mony was inadmissible under the general rules 
of evidence and served no other purpose than 
to prejudice the defendant.

XV. THE TRIAL COURT ERRED BY REQUIRING 
COUNSEL APPEARING FOR THE DEFENDANT TO ALTER­
NATE WITH COUNSEL FOR THE STATE IN PRESENTING 
ARGUMENTS TO THE JURY.
(Assignment XVI, Exception 139 (R p 645))
Appearing for the State in the trial of 

this case was Mr. J. A. West, Mr. C. C. Horn 
and Mr. W. H. Childs, Solicitor. Appearing 
for the defendant were Mr. J. LeVonne Cham­
bers and Mr. James E. Ferguson, II. The de­
fendant did not present any evidence at the 
trial and, therefore, under the Rules of the



-64-
Superior Court was entitled to have the last 
argument before the jury. Rule 3"of the 
Rules of Practice in the Superior Courts of 
North Carolina provides; "In all cases, 
civil and criminal, when no evidence is in­
troduced by the defendant, the right of reply 
and conclusion shall belong to his counsel." 
Prior to the arguments to the jury counsel 
for the defendant advised the court they 
wanted the last argument (R p 644). The court 
required that counsel for defendant alternate 
with the State in the arguments (R p 645)*

The language of Rule 3 is mandatory and 
leaves no discretion to the court. There is 
no exception made when the defendant has more 
than one counsel. The trial court therefore 
violated its own rules in the trial of this 
case. This rule is obviously for the benefit 
of a defendant. Where the court violates its 
own rules made for the benefit of the defen­
dant, the defendant should be entitled to a 
new trial. This reasoning becomes all the 
more compelling in a capital case such as the 
present where the choice of whether or not to 
put on evidence is crucial to one's life. It 
may well be that one of the strongest factors 
influencing counsel in making that determina­
tion in the strategic advantage of having the 
last crack at the jury.

Because of this flagrant disregard of its 
own rules the trial court committed preju­
dicial error and the defendant is entitled to 
a new trial.

CONCLUSION
Based upon the foregoing reasons, defendant 

respectfully submits that the trial court 
committed reversible and prejudicial error and 
should therefore be reversed, or, in the alter­
native, the defendant should be granted a new



trial because of errors committed during the trial.

-65-

Respectfully submitted,
/s/ James E. Ferguson, II 
J. LeVONNE CHAMBERS 

Chambers, Stein, Ferguson & Lanning 
216 West Tenth Street 
Charlotte, North Carolina
Attorneys for Defendant Appellant