State v. Jackson

CASES ARGUED AND DETERMINED IN THE SUPREME COURT

OF N ORTH CAROLI N A

AT Raleigh

STATE OF NORTH CAROLINA JAMES WALLACE JACKSON

No. 351A84 (Filed 1986) 3 June § admissibility

1. Criminal Law 178— of confession —law of the case Supreme prior The appeal decision Court’s confes- defendant’s sion was admissible was on conclusive this issue under the of the doctrine “law relating admissibility of the case” where the evidence to the of confession virtually Supreme prior identical evidence before appeal. Jury penalty sought by § 7.13— peremptory 2. death not State —number of chal- lenges only degree A defendant for tried first murder was entitled to six rather peremptory challenges capital

than fourteen case where the lost its nature prosecution prior jury when the announced the commencement of selection penalty that it would aggravating not seek death due to a lack of cir- cumstances. 60; Jury peremptory § § challenges Constitutional Law 7.14— of blacks —non- retroactivity of U. S. Court decision —, Kentucky, The decision of Batson v. holding prima purposeful that a defendant can establish a discrimination facie solely petit jury concerning prosecutor’s the selection of evidencе trial, peremptory challenges applied retroactively exercise at his will not be finally appeal even toas cases not determined on direct date of of the Rather, filing opinion. only applicable will be Batson jury place those cases in which the took selection after that decision was rendered. g 60; Jury challenges § peremptory 4. Constitutional Law 7.14— of blacks —no de- community nial of fair cross-section prosecution’s peremptory challenges use of from exclude blacks jury right to a did violate defendant’s drawn from a fair cross-section community requirement since the Sixth Amendment fair cross-section SUPREME COURT IN THE v. Jackson imposes no jurors petit are selected and only pool from which applies community actually jurors chosen must mirror the petit that the requirement population. the groups in distinctive the various and reflect premeditation degree and deliberation —suffi- § 21.5— first 5. Homicide murder — ciency of evidence sup- premeditation and deliberation evidence of was sufficient There degree where the evidence tended port of first murder conviction defendant’s force into the victim’s back with such thrust knife that defendant show any way body; pro- through did not in completely her victim it went her; callously attacking following killing, defendant into voke defendant bad”; “somebody up her and person messed to another [had] remarked attempted up in the he to cover his involvement admitted that space by disposing by empty in knife rack placing file in an crime a steel Furthermore, weapon. have in- the murder could of the knife used as stab was not inflicted the time of that the fatal until ferred from evidence thirty forty-five initial seconds after her victim’s second scream some scream, finding killing support a was such inference would premeditated and deliberate. dissenting part. in Justice Exum Frye joins dissenting opinion. in this

Justice Billings participate or this did not in the consideration decision of Justice case. J., Ellis, February at the 20 1984 Criminal Session of BEFORE Court, Superior County, defendant was of first- convicted Wake trial, degree murder. Prior to had announced that prosecution the evidence did not the existence of support aggra- 15A-2000(e) factors vating upon listed in N.C.G.S. which the § jury could penalty. recommend the the death There- imposition fore, conviction, trial upon defendant’s court entered judgment him to sentencing imprisonment. a term life The de- right fendant as a matter appeals pursuant to N.C.G.S. 7A-27(a). 13 March 1985. Heard § General, H. Lacy Attorney Byers, Joan H. As- Thornburg, General, Attorney sistant State. for Gerald L. Bass the defendant-appellant. for MEYER, Justice. presented The State which evidence tended to that on show Kennedy, March Leslie Hall a student at North Carolina University,

State living a house located Ave- Cox IN THE SUPREME COURT Raleigh. separate nue ments, The house divided into three apart- Mrs. Kennedy the one which was across the occupied house. Mrs. Kennedy’s working front of the husband was in Flor- time, Kennedy living ida at the and she was Mr. alone. testified Mrs. lock the front door often failed to catch and that Kennedy usually neglected to close the door’s bolt lock. One apartments other was occupied two two North students,

Carolina Ron Dickey. and Ivаn re- Riggan Riggan turned to apartment from spring approximately vacation at Morehead, 7:00 p.m. on 15 March 1981. His girlfriend, Jamie subsequently over for a came visit. some 8:00 At between point 8:30 Kennedy’s and p.m., Riggan saw Mrs. up car drive to house. Although Kennedy, he did see Mrs. Riggan only heard car being one door He shut. did not hear conversation or anyone other sound which would indicate that Mrs. with Ken- nedy. approximately Dickey At 9:00 p.m., Ivan returned to apartment. Riggan, Dickey, and Morehead proceeded to watch tel- evision and talk. p.m., Kennedy

At 9:00 Mrs. approximately made a call phone They to her twenty-five husband. spoke approximately for min- conversation, Near the Kennedy utes. end of the Mrs. her told husband that she sit in going to bed and read for a little while. At 10:35 approximately Dickey, p.m., Riggan, and Morehead loud,

heard two screams piercing coming Kennedy’s from Mrs. apartment. Riggan to a went common wall adjoining the two apartments Kennedy. and called out to Mrs. After failing to hear a response, all three went around to the They front of the house. observed that open front door was and that there was blood on the porch front around the door. decided Riggan go to back to his apartment to arm they himself. At point, heard a loud laugh emanating from vicinity Dickey of Pullen Park. decided walk to up street to investigate the laugh. Riggan, accompa- Morehead, nied went back his and a apartment got weight returned, bar lifting to use as a club. Dickey they soon and walked back around front house. house, man, As they neared the front subsequently defendant,

identified as the walked and up stated had girl told him that she had heard someone in the area scream. Riggan THE SUPREME COURT IN Jackson

State v. he, this, on the up went and the defendant Dickey, confirmed and could not They window. the bedroom through and looked porch However, they notice a did bed. anyone was see whether then window. The three in front of the file on a chair steel hand Ken- Mrs. soon discovered Riggan apartment. into the proceeded She appeared her arm. nedy on a with blood beneath lying bed be dead. and, Dickey the apartment left Riggan point,

At Morehead, call apartment to their with started back along however, not with the defendant was noticed that Riggan, police. them, watch the defendant. Dickey back and go and he asked to Ken- Dickey went back to call the Riggan proceeded police. nedy’s Approximately for the defendant. and called out apartment later, the door and remarked defendant came out one minute “somebody Dickey her the defendant up messed bad.” Dickey Riggan. apartment then went back to the shared thereafter, were instructed to Shortly police arrived. All four be ob- that their statements could “stay apartment around” the so moments, Within a tained. The then entered the house. few police away apart- the defendant from the walking Morehead observed ment.

Mrs. was dead at the time the officers entered the Kennedy pathologist, per- house. Dr. testified that he Copeland, Dana autop- formed an on 16 March 1981. The autopsy on the deceased sy in extending point revealed a wound from a the middle оf stab the the top completely back eleven inches from head the above the through body point slightly to a left breast. He that, stated in wound could have been caused his the a opinion, that, ten-inch butcher testified in knife. Dr. also his Copeland opinion, the loss of through deceased died a result the blood into the wound the left side of the chest. day Kennedy

The after the Mr. killing, Raleigh returned to and walked the through apartment with a the detective of Ra- leigh Kennedy Police in the Department. While no- apartment, a ticed that ten-inch butcher knife the missing was from knife 1981, rack which was in located the kitchen. 31 On March police discovered a butcher knife of the same brand as the one Kennedy from the missing apartment near a railroad track a apartment short distance from the on Avenue. Cox occasions, 26 March 27 March On separate three defendant about the police questioned and April surrounding The circumstances those interviews killing. factual Jackson, in in opinion are set out detail this Court’s unnecessary 304 S.E. We deem it N.C. here. On thе de- evening April those facts repeat said Mrs. in which he that he had met fendant made statement Kennedy 13 March 1981 and she had him to come invited apart- her on March. After he arrived at the apartment over to ment, Kennedy they and Mrs. in bed. got went into the bedroom first, bed and her. How- the defendant sat on the talked with At ever, Kennedy Mrs. that he believed wanted the defendant stated activity, he and feel began in sexual and soon to touch engage activity, Kennedy began a few such Mrs. her. After minutes of very frightened. The stated that he became screaming. a knife was on a beside picked up He said he table panicked, bed, ran and her in the back. He then out of the stabbed Pullen Park. and down the street toward house he had stated that he was afraid that defendant further back to see go apartment killed woman and decided to walked alive. He knife beside tree and placed if she still returned, peo- When he were other apartment. back to the there had said yard. girl He told them that standing ple men entered scream. He two other then she heаrd someone body, they call the men saw the left to house. After one of the house, inside he went back The defendant stated that police. bedroom, and a chair in the file that up the steel picked He said after the knife rack in the kitchen. placed he left investigate, arrived and inside the house to went police he re- He stated that scene and walked back down the street. away near some railroad tracks the knife and threw it trieved went home. then evidence. no presented

The defendant evidence, defend- found the Based on this other judgment murder. The court entered guilty first-degree ant life imprisonment. to a term of sentencing the defendant ^[1] allowing The defendant prosecution initially contends that the introduce his April trial court 1981 statement erred by circumstances surround- factual argues evidence. He that the into show ing custody various interview sessions that he was in made, the time the statement was and since the officers did not have probable custody, cause to take him into the confession is in- York, 200, admissible under v. New Dunaway L.Ed. (1979). 2d 824 He аlso contends that the facts the in- surrounding terview sessions show that involuntary. confession was 1982, 18 February

On a superior court judge granted de- fendant’s motion suppress the confession. The State appealed from this order. We reversed the trial court and held the state- Jackson, 549, ment to be admissible State v. 304 S.E. N.C. case, 134. In 2d we carefully examined the factual circum- ‍​‌​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌​​​​‌​‌‌‌​​‌​​‌​‌‌‌​‌‌‌​​​‌‍stances surrounding three interview sessions and determined custody defendant was not in prior to the time gave he the statement and therefore the confession’s exclusion was not re- by quired We also Dunaway. concluded that the statement was voluntarily by made the defendant.

The defendant acknowledges that these issues already have contends, however, been decided adversely to him. He there is additional evidence which was not previously before this Court which mandates the reversal of our prior decision. We do not agree. The defendant has failed to point evidence produced at trial which was not previously before this Court that tends to strengthen his argument that he was in custody at the time the statement was made. The defendant has likewise failed to point to any new evidence which strengthens his assertion that the state ment was not voluntarily made. Since the evidence relating admissibility of the inculpatory statement made the defendant is virtually identical to the evidence which was previously before us, the doctrine of “the law of the case” applies to make our prior ruling on this issue 242, conclusive. State v. Wright, 275 N.C. denied, (1969). S.E. 2d cert. 24 L.Ed. 2d See Hill, also State (1972); 281 N.C. 188 S.E. State v. Stone, (1946); Lee, N.C. 36 S.E. 2d 704 State v. 213 N.C. 195 S.E. 785 This assignment of error is overruled. He argues challenges. six peremptory limiting him to only ^[2] The defendant next argues the trial court erred since he murder, was being tried for first-degree he was entitled to fourteen We challenges. do not agree. 7 IN THE SUPREME COURT Jackson

State v. 15A-1217(a) case,” a in a “capital provides N.C.G.S. § N.C.G.S. challenges. peremptory is allowed fourteen defendant 15A-1217(b) case,” is en- a a defendant “noncapital states that § been defined as one A case” has challenges. “capital six titled necessarily, be im- may, need not but penalty in which death 66, Barbour, 243 S.E. 2d 380 Sеe 295 N.C. posed. State 15A-2000(a)(l), felony” as which defines “capital also N.C.G.S. § A case loses its may punishable which be death.” “one is penalty if is that while the death nature it determined “capital” may be im- crime not punishment charged, a for the possible Braswell, 312 case. State v. N.C. posed E.g., in that particular (1985) 553, 241 324 S.E. 2d announced that it would (prosecution any due a lack cir- penalty aggravating not seek the death cumstances); (1984) Watson, 384, 312 S.E. 2d State v. N.C. were aggravating appli- determined that there no factors (judge jury cable which the could base recommendation that upon death); Leonard, defendant be sentenced to State N.C. 248 S.E. (prosecution beginning 2d announced at the seek penalty); the trial the State would not the death (death Barbour, 243 S.E. N.C. 2d could not penalty because murder imposed during be occurred the interval be- mandatory of North Carolina’s death penal- tween invalidation ty law the United States Court Woodson v. North Carolina, (1976), 49 L.Ed. 2d 944 and the effective reinstating penalty). date of the act the death case, In prosecution prior this announced to the com- jury mencement of selection that there no evidence which inference support aggravating would reasonable factor which the could recommend a upon sentence of death should the defendant be convicted murder. The case first-degree capital therefore lost its nature. We have previously held that nature, when a capital capital loses its is not Leonard, fourteen peremptory challenges. entitled to State v. 853; Barbour, 248 S.E. 243 S.E. N.C. 2d State v. N.C. defendant, however, argues that Leonard and Bar- are controlling bour not because the murders in those cases were committed when did have a during period North Carolina Therefore, valid he penalty argues, pen- death statute. the death alty have been applicable would not to those defendants. That fact, however, is completely irrelevant holdings those that, nature,

cases to the effect when a case loses capital its a de- fendant is no longer peremptory entitled to fourteen challenges. Since the in open State announced court that it would not seek defendant, the death the case penalty against capital lost its only nature and the defendant was entitled peremptory six challenges. This of error is overruled. assignment ^[3] Next, the argues the trial court erred by de his motion for a mistrial nying upon prosecu basis that tion used its peremptory challenges improperly exclude blacks from jury.

Initially, we although jury note that voir transcript Court, dire part was made a of the record before this following transpired just before the was empaneled: Honor,

MR. BASS: Your I would like to address the court I very briefly if could on a matter I would like to put into the record. Now, All I will right. you, hear Mr. Bass.

COURT: Honor, MR. BASS: Your we would like to put a motion for a record at this time mistrial because of the automatic all jurors exclusion the State of black which came here up with the of one. We exception would like to review for the transpired. record what The State used five The challenges. They first one was Sandra Jackson. exercised a peremptоry instruction there. She was juror number ten on the front [sic] row in the first Let show that group. record she was black. The next in the was group second number nine on the row, Stewart, front Kenneth who identified himself as a UNC law student Chapel Hill. He was black. He was likewise dismissed, peremptory excused in instruction [sic] [sic]. [sic], And the next we had group juror come number back, three on the I like Shannon Keck. would the record to show that likewise she was She was a student at Enloe black. High juror School. The Court in its discretion excused that motion of the upon State. juror

The next the Court excused for cause was Michael Vann, juror eight, number on the front row who iden- sitting IBM employee. tified himself as an He was black. He identi- fied himself as a Jehovah’s Witness and he was excused for IN THE SUPREME COURT cause without inquiring to how his views as a member of may that church conflict the law. with Let the record show that he was likewise black. twelve, group

The next Riddick, juror that came on was number Iris was who peremptorily challenged by the State given they without reason for it other than excused her. Like the record show she was black. Huntеr, next one Margaret juror eight, number row,

on the front peremptory challenge used. Like the record to Mrs. reflect Hunter was only black. The other peremptory challenge used in their was a State five And, Honor, University. student out at NC Your we be- systematic lieve that exclusion of jury, blacks defendant being black —we are left juror with one black up there —is a denial of this right man’s a fair trial under the Constitution and ask the Court declare mistrial case. Stephens: Honor,

Mr. I Your would note for record systematically excluded whites from the jury. So he all took no blacks all took of his peremp- tory challenges jury. as members [to] white[s] certainly

The record should also reflect the State did not intentionally systematically jury eliminate blacks from this that, any for for purpose systematically and did not eliminate jurors. juror black is sitting There one black now. jury juror. The State challenged also one peremptorily white There were sufficient for reasons counsel the State con- cerning family jurors each background, situation of we satisfy us that challenged type not the jurоr looking we were rea- for. For that reason no other son. Not based background makeup. rational or [sic] jurors We There- peremptorily challenged the that we did. fore, I will having do not think the record bear out State Also, whites, systematically excluded blacks. eliminated jury as well and black person sitting white left on the one excluded, systematically were they, That that blacks person. certianly did not intend to. [sic] v. Jackson Honor, we like for the record to

Ms. BYERS: Your would selected, twelve, one includes jury show ‍​‌​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌​​​​‌​‌‌‌​​‌​​‌​‌‌‌​‌‌‌​​​‌‍that the final black. else, right. Anything gentlemen? All

COURT: Stephens: No, sir. Mr. Sheriff, deny I will motion of the defendant.

COURT: 2:30. we will a recess until take No. Exception 2]

[Def.’s for Lunch.] [Recessed would, Clerk, you

P. M. Madam if empanel Session. Court: the jury. Duly

[Jury Empaneled.] jury finally record thus indicates that con- empaneled sisted of eleven whites and one black and that the State peremp- torily jurors. excused four black The record further prospective indicates that which convicted the defendant included Also, one black juror. prosecution peremptorily excused one motion, white In prospective juror. response defendant’s statеd that prosecution prospective jurors black were not race, challenged on the basis of their but were excluded because it was felt family their backgrounds situations made them “not the we were type juror looking prosecutor for.” The did elaborate trial further. The court denied the defendant’s motion for a mistrial.

The historic for a discussion of this issue starting point had Alabama, been 380 13 Swain v. U.S. L.Ed. 2d reh’g (1965). denied, Swain, 14 2d 442 In L.Ed. the United that, States in of Supreme light Court held the and func- purposes tions of the peremptory challenges, Constitution did not mandate an prosecutor’s examination of the reasons for exercising the chal- Instead, in lenges any case. particular any the in presumption case was given that the prosecution utilized its peremptory chal- lenges to obtain a fair jury. and The impartial Supreme Court went on say that in order for a defendant to prevail on a claim the prosecutor had unconstitutionally excluded blacks from jury, his he was required to establish that the prosecutor had systematic in after in a of engaged pаttern case case use of challenges jury. to exclude blacks from the This peremptory petit consistently the standard. Court followed Swain State v. E.g., (1980); Shaw, Lynch, N.C. 268 S.E. 2d 161 S.E. N.C. 2d 585 meet The defendant did not standard. Swain

However, in case of Kentucky, the recent Batson v. —, (1986), the United States Supreme Court over- Batson, evidentiary ruled the in In standard established Swain. man, was petitioner, charges burglary black tried on dire, receipt goods. During jury of stolen voir prosecutor used venire, all peremptory challenges strike four blacks on the jury only

and a composed of whites was selected. The jury defendant made motion discharge before sworn on the basis that prosecutor’s removal of the black veniremen violated his sixth rights under and fourteenth a jury amendments to drawn from a cross-section of the communi- ty, and under the fourteenth amendment to equal protection of the laws. trial judge The denied the motion. The petitioner subsequently convicted and Kentucky Court of af- —, firmed the conviction. Id. at 2d at 78-79. L.Ed. Batson, In the Supreme Court principle, reaffirmed the Swain,

recognizеd in the equal protection clause is violated by the or purposeful deliberate jury exclusion blacks from par- However, ticipation. reject Court went on to the Swain re- that a quirement history systematic defendant show a use of peremptory challenges to exclude blacks order to on an prevail equal protection The challenge. Court held that a defendant could establish a prima purposeful discrimination facie petit solely selection of the concerning evidence the pros- —, ecutor’s exercise of peremptory at his challenges trial. Id. at L.Ed. 2d at stated order to such establish case, a prima the defendant must first show that he is a facie member of cognizable racial group prosecutor has exercised peremptory challenges to remove from the venire race; second, members of the defendant’s is entitled rely fact that peremptory challenges a jury constitute abuse; selection practice itself lends to potential and third/ the defendant must show that these facts other relevant THE SUPREME COURT IN in a against jurors black of strikes (e.g., pattern

circumstances dire, by the prosecutor and statements voir questions particular etc.) dire, used prosecutor an inference that the raise during voir basis jurors on the prospective to exclude peremptory challenges showing, has made a race. prima of Id. Once the facie explana- neutral to come forward with a the State has the burden not need jurors. explanation black for the challenging tion However, prose- for the justifying rise to level excusal cause. the insuffi- discriminatory he motive is denial that had a cutor’s mere of discrimination. showing purposeful a prima cient to rebut facie to ex- prosecutor had the required the trial court Id. Because challenges, peremptory reasons for exercising his plain a deter- to the trial court for remanded Supreme Court showing the facts established a prima mination of whether facie so, and, if whether prosecution discrimination purposeful of at racially for the action. Id. explanation neutral could articulate —, 90 2d 90. L.Ed. however, not, Court,

In Powell did opinion his for the Justice retroactively. apply whether Batson would question decide the of O’Connor, and Chief concurring opinions, White Justices joined by Justice Rehn- opinion in a Burger, dissenting Justice not apply view that the decision should quist, expressed consideration, pre- we believe that retroactively. After careful to the conclusion Supreme vious decisions Court lead cases, effect, even as to Batson is not to be accorded retroactive this, finally on direct appeal which were not determined such as opinion in Batson. filing the date analysis must with Linkletter Any begin of this issue case, Walker, In that 381 U.S. with of whether the question Court was faced Ohio, (requiring 6 L.Ed. Mapp in violation of in state trials of evidence seized exclusion amendment) convic- retroactively to the state court fourth applied of the deci- rendering had final prior tions which become decisions, the Court concluded previous sion.1 After a review had meaning judgment of “final” as conviction The Court defined exhausted, rendered, peti- filing availability appeal time for and the been elapsed. for had tion certiorari IN THE 13 SUPREME COURT State v. Jackson was application particular

that the retroactive of neither Instead, required by was neces- prohibited nor the Constitution. sary by “weigh to the merits and in each case to looking demerits effect, history prior of the rule in and question, purpose its and whether will retrospective operation op- further or retard its eration” to determine whether was called application retroactive Walker, 629, 381 for. v. U.S. 14 Linkletter at L.Ed. 2d at The Court held application that retroactive of habeas Mapp corpus conclusion, was cases not mandated. In this reaching the Court occurred, already stated that since had police goal misconduct of such Mapp by to deter misconduct would be furthered retroactive The application ruling. of the Court also noted that application retroactive of would a severe Mapp place strain on the i.e., justice, machinery. administration judicial the nation’s 719, 882, In 384 Johnson v. New U.S. 16 L.Ed. 2d Jersey, denied, 890, (1966), 385 U.S. 17 L.Ed. 2d 121 reh’g Supreme Illinois, denied Court retroactive v. 378 application Escobedo (1964), Arizona, U.S. 12 977 L.Ed. 2d and 384 U.S. Miranda 436, 16 694 L.Ed. 2d The emphasized Court argu- ment in favor application of retroactive where stronger very new ruling “affected ‘the integrity fact-finding proc- of the ” ess’ and clear danger convicting averted ‘the the innocent.’ 727-28, v. New 16 889 Jersey, Johnson at L.Ed. 2d at Walker, (quoting U.S. at L.Ed. 2d at Linkletter (1966)). Shott, 406, 416, U.S. L.Ed. 2d Tehan The Court ruled that because of the fact that law enforcement agencies prior had relied on cases and Miranda and Escobedo in light disruption justice of the to the administration of cause, retroactive would application apply the decisions would not retroactively. justifi- valid Court also found that there no distinguishing, purposes application cation for for of retroactive cases, which had final and these convictions become those still were an- pending appeal on direct at the time the decisions Escobedo, and Miranda werе held to be Consequently, nounced. only after the date the decisions were applicable begun to trials rendered. Denno, (1967), In Stovall v. that, in deter- stated for the first time expressly effect, retroactive three factors

mining give whether (1) to be served weighed: purpose were be considered and (2) rule, reliance law enforcement extent of the the new rule, effect a retroactive prior ap- officials justice. rule would have on the plication of the administration a new to which rule en- Court noted extent Again, the reliability fact-finding process integrity hanced an under the first factor. Fur- important trial was thermore, consideration said to again regard

the that with the retroac- Court in to counsel at application ruling question right tive of the —the Wade, 388 post-indictment established in United v. lineups States (1967) 218, 18 justifica- U.S. L.Ed. 2d 1149 could of no perceive —it had tion for between convictions which distinguishing become final those which were at stages various of trial direct review when the announced. After the three- ruling applying test, prong the Court concluded the was not ruling that to be given retroactive effect. States, 244, In v. 394 U.S. 22 Desist United L.Ed. 2d 248

(1969), was required the Court to consider v. whether Katz United (1967) (which States, 347, 389 U.S. 19 L.Ed. 576 2d held that fourth encompassed nontrespassory amendment sur- electronic veillance), outset, retroactively. should be applicable At the Court seemed accept proposition the decision to not retroactively apply ruling only justified a can be where the ruling is a “clear break the past” with opposed being “foreshad- States, 247-48, owed” decision. v. 394 Desist United U.S. at 22 say The Court went on to the most impor- tant of the three Stovall criteria the purpose be by served the rule. In discussing second Stovall factor —the extent of reliance lawof enforcement officials on the prior rule —the Court periodic stated that its prior restatements law case rejecting application fourth amendment to such fully situations justified by reliance police and courts of their continuing validity. ultimately The Court held that Katz was not to be ap- retroactively. plied decade,

Over the next the Supreme applied Stоvall test in a number of cases question involving of retroactive ap- plication of a new constitutional criminal procedure ruling. See 1 Israel, W. LaFave and J. Criminal Procedure 2.9 Some of § the decisions held prior were rulings to be accorded retroac- Louisiana, 323, tive effect. v. 447 E.g., Brown U.S. 65 L.Ed. 2d 159 (1980) (made Louisiana, retroactive in decision Burch v. 441 15 THE SUPREME IN COURT (1979), 130, 60 of a U.S. L.Ed. which held that conviction 2d six-person a non-unanimous vio- non-petty criminal offense right lates the defendant’s sixth and fourteenth amendment trial jury). previous rulings Other decisions held were 665, retroactive. ‍​‌​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌​​​​‌​‌‌‌​​‌​​‌​‌‌‌​‌‌‌​​​‌‍U.S. 37 L.Ed. 2d E.g., Mayden, Gosa (1973) (held Parker, in ruling nonretroactive O’Callahan (1969), U.S. 23 L.Ed. which military 2d held that person- nel are entitled to a civilian trial for offenses that are not charged related); Illinois, service (1972) (held 405 U.S. Adams L.Ed. Alabama, ruling nonretroactive Coleman v. (1970), U.S. 26 L.Ed. 2d 387 an assist- accused is entitled to ance of counsel at preliminary hearing). Johnson, United States v. 73 L.Ed. (1982),

2d 202 marked a new area. in- chapter this Johnson York, volved of whether question Payton v. New 63 L.Ed. 2d 639 (holding that the fourth warrantless, amendment prohibits police from non- making entry cоnsensual arrest), a suspect’s felony into home to make a routine retroactively was to be applied to a case which was on direct at the time appeal Payton reviewing decided. After history of noting Linkletter and its in- progeny, apparent engendered by consistent results application the Stovall criteria and calling attention to the fact that several members the Court had that indicated all defendants whose cases were direct at appeal the time of a law-changing decision should be en- “ rule, titled to invoke the new the Court announced that *[r]etro- ” Johnson, activity must rethought.’ be United States v. 457 U.S. States, at 73 L.Ed. 2d Desist (quoting v. United (Harlan, J., U.S. at 22 L.Ed. 2d at 260 dissenting)). analysis

The that Court stated an of post -Linkletter cases cases, established that in three narrow categories of the answer to the retroactivity by question not determined application criteria, the Stovall but was through instead decided the applica- First, tion of a “threshold test.” when a merely decision applied situations, settled precedents to new and different factual Sеcond, rule will be retroactive. when the Court had expressly new declared a to be a with ruling “clear break it past,” would not be retroactive. The said a Court that “clear break” (1) occurred in three circumstances: when decision a explicitly (2) Court, overrules a past precedent of the a disap- when decision IN THE SUPREME COURT arguably pre- had sanctioned a that the Court

proves practice (3) cases, a longstanding a decision overturns when vious spoken, had not but to which the Court practice widespread authority had ex- body court a of lower which near-unanimous Third, retroactivity was in- full considered pressly approved. authority lacked the basic in a trial court herent charged a defendant for the offense. or punish convict any did not fall into of these Payton The found that Court criteria, the Court applying Without Stovall categories. three amend- construing the fourth a decision held that retroactively all were applied to convictions that is to be ment rendered. The Court decision was yet final at the time the not cases would not affect those say holding went on to retroactivity clearly by existing controlled which would be cases), would address “clear break” it (e.g., precedents amendment deci- retroactive reach of fourth question of the issues may raise amendment cases that fourth sions to those attack, view express would no on the retro- collateral any construing provi- constitutional of decisions application active amendment. than the fourth sion other Stumes, later, However, years Solem two (1984), application returned to 2d 579 the Court L.Ed. retroactivity of a non-fourth determining criteria in Stovall Stumes, ques- was faced with the the Court amendment claim. In Arizona, 451 Edwards v. ruling in apply whether tion of (which in- suspect held that once counsel, be must subsequent conversation right voked the him), retroactively opin- cases. corpus to habeas initiated in a footnote was contained of Johnson discussion primary ion’s case, Court has majority “a said in that where it was in the Fourth approach different recently slightly adopted Stumes, 79 L.Ed. 2d 465 U.S. at v. area.” Solem Amendment However, say ap- went on to that the Johnson the Court 587. at was controlled case since it to this inapplicable proach review, involve and did not collateral arose on precedent, prior amendment. the fourth approach, the Johnson expressly utilizing

While not attaches importance that recognize did decision Stumes The stated in Court as alluded to Johnson. break” cases “clear occurs, in —as defined when a “clear break” that Johnson — “ virtually ‘have test of the Stovall prongs reliance and effect ” Stumes, 465 v. nonretroactivity.’ Solem finding compelled Johnson, United States (quoting 79 L.Ed. 2d at U.S. at 214). 549-50, that The concluded 73 L.Ed. 2d at Court 457 U.S. at rule, it was not a “clear a new did establish although Edwards criteria, con- the Court applying break” case. After Stovall retroactively applied not be that Edwards should cluded proceedings. habeas corpus (1985), Louisiana,

In Shea to apply in Edwards was held that Supreme Court at in state court appeal on direct retroactively pending to cases conclusion, In this reаching was rendered. opinion the time the in and Stumes. reviewed the decisions Johnson the Court Johnson, to address declined expressly noted that in it had Court other than fourth situations implications holding However, on review. amendment issues raised direct reach a result different stated that it saw no reason to Shea Johnson, “There is about a Fourth saying, nothing from that it be rule that in this context should suggests Amendment that rule.” than Fifth Amendment retroactive effect given greater Louisiana, In response 84 L.Ed. 2d at 46. 470 U.S. at Shea differently treat litigants is unfair argument or was brought appeal on their claim was on direct based whether distinction, stated, review, “The collateral the Court presented however, finality in the rests considerations properly already has taken his case litigant The one judicial process. latter, system. The other has not. For the through primary Somewhere, has not been drawn. the clos- finality the curtain of 59-60, 84 L.Ed. 2d at Shea Although must come.” Id. ing ruling, there is in the nothing opin- dealt with a fifth amendment analysis would not be to other applicable ion to its suggest as well. rulings constitutional dissent,

In drawing White the Court was argued Justice arbitrary an for the retroactive ef- determining and artificial line Furthermore, fect of prior argued majority he rulings. consistent, open was not well as being as Shea —as Johnson —left would not be retroactive possibility rulings “clear break” new to cases on direct review at the time the decision pending by say- to this majority responded argument was rendered. The THE SUPREME IN COURT retroactivity “clear a different rule for ing question that the of Shea, previously break” cases was raised in as Stumes had not a “clear break” case. recognized that Edwards This issue the applica- brief discussion retroactive indicates procedure rulings tion criminal that of constitutional not been in its Supreme completely approach Court has consistent Indeed, early question. as as it had been said that the decisions in this area “became almost as difficult to follow Court’s a its prey the tracks made beast of search of intended States, 667, 676, Mackey victim.” 404, United (Harlan, J., cases of separate opinion). recent Johnson, Stumes, have a and Shea failed to provide complete Israel, issue. W. LaFave J. clarification See and Criminal (1986 2.9. is Supp.). Specifically, Procedure it now somewhat § be employed unclear what standard is a analyzing whether is retroactively. ruling applied to be In their on criminal treatise procedure, LaFave Professors and Israel their opinion state as to analysis current state of the law and the method of which is They to be if utilized. feel a new ruling is a simply foreshadowed decision which falls in category analogous of an application of well-settled principle constitutional if is a or it truly new denies authority try rule which the state’s basic and defendant, convict the will be ruling accorded full retroactive If application. fall does not into one these categories, the stage litigant’s which the rested at the time of the new If ruling must be considered. case was litigant’s no longer pending appeal at the time of the new ruling, Court will employ the Stovall criteria to ascertain whether retroactive application is If apрropriate. case was pending direct review at the time of the new ruling, Shea appears to indicate it will be full given retroactive effect. If the new ruling con- case, however, stitutes “clear break” Johnson Shea suggest applied retroactively will not be it even to cases pending on However, review time was direct at the it rendered. is arguable it if “clear substantially break” case bears on the truth- process, may finding be accorded retroactive W. application. Israel, (1986 LaFave J. Criminal 2.9 Procedure Supp.). § We agree analysis mode of suggested by Professors LaFave appears Israel to reflect current state of the law in this area as Johnson, articulated Stumes, analysis clearly of this method of Application and Shea. application not be accorded retroactive shows that Batson should cases, this, on direct re- pending which were even as to such as was rendered. view at the time Batson was not a fore- readily that Batson

Initially, apparent it is analogous ap- in the of an category decision which fell shadowed It cannot be principle. constitutional of a well-established plication precedents of settled application that Batson involved the said Johnson, 457 U.S. v. a new factual situation. See United States 537, Also, the state’s basic reject 202. Batson did not L.Ed. 2d charged. for the crime authority try convict the defendant and categories two “threshold” fell into neither of the Since Batson we must application, retroactive which would mandate automatic case rest- which the defendant’s stage at proceed to consider ed when it was rendered. review at on direct pending case

Since the defendant’s rendered, would tend to Johnson and Shea the time Batson con- to him unless it applicable would be ruling that suggest previously, case. As noted stituted a “clear break” ex- when a “clear break” cases occur has said that Court Court, a precedent a prior overrules pressly disapproves sanctioned, long- or overturns a arguably has practice has not which the Court praсtice to standing widespread authority body of lower court a near-unanimous but which spoken, Johnson, 457 U.S. has United States expressly approved. clearly into the first falls 202. We believe that Batson 73 L.Ed. 2d reaffirmed Although Batson break” cases. category “clear pro- equal that the in Swain recognized well-established principle or deliberate purposeful the state’s tection clause is violated reject explicitly on to jurors, exclusion of went blacks history systematic show a requirement Swain to prevail in order blacks challenges to exclude use of peremptory Furthermore, footnote at challenge. an equal protection states, the extent “To for the Court of the opinion conclusion (1965), Alabama, contrary to is 380 U.S. anything Swain v. is overruled.” today, that decision we articulate principles ---, (emphasis at 90 90 L.Ed. 2d 476 U.S. at v. Kentucky, Batson added). prior rejected explicitly Batson We conclude that There- overruled Swain. unequivocally requirement Swain normally fore, which is “clear break” constitutes a Batson IN THE SUPREME COURT Jackson effеct, cases pending not accorded retroactive even as to direct ruling. the time of the United appeal son, new See States John- However, intimate, Johnson Professors appears LaFave and Israel those “clear break” suggest, bearing cases substantially may truth-finding process on the nevertheless be ac- full Assuming, corded application. arguendo, retroactive this correct, is is not proposition Batson such case. has The Court said practice to which a condemned infects extent “[t]he integrity truth-determining of the at trial process ‘question is a ” Denno, 298, v. 388 at probabilities.’ U.S. 18 L.Ed. Stovall 2d at 729, 1204 v. (quoting Jersey, Johnson New 384 U.S. at 16 L.Ed. 2d 890). at Those rulings substantially which can be said to affect the basic truth-finding process generally have been which those ei- case, ability ther an gave effectively accused the present his Massachusetts, 5, (1968) Arsenault v. 393 21 e.g., U.S. 2d 5 L.Ed. 59, retroactive the in (holding ruling White 373 Maryland, v. U.S. (1963), 10 L.Ed. 2d 193 that an accused is entitled to counsel at a 2, preliminary v. hearing); McConnell 393 U.S. 21 L.Ed. Rhay, (1968) retroactive (holding ruling in Mempa Rhay, v. U.S. 128, (1967), 19 L.Ed. 2d 336 that counsel must be provided at a hеaring concerning revocation of probation), or those which placed ability restrictions ‍​‌​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌​​​​‌​‌‌‌​​‌​​‌​‌‌‌​‌‌‌​​​‌‍the prosecution’s to present im- accused, proper against California, evidence an v. e.g., Berger (1969) 314, U.S. 21 L.Ed. 2d 508 (holding retroactive the ruling in 719, (1968), Barber v. 390 U.S. Page, 20 L.Ed. 2d 255 absence a from jurisdiction witness did not justify use trial of preliminary hearing testimony unless the state had made good a faith effort to secure the witness’ presence); Roberts Russell, 293, 1100, denied, 392 U.S. 20 L.Ed. 2d reh’g U.S. (1968) 899, 21 L.Ed. 2d 191 (holding retroactive the in ruling Bru- States, (1968), ton v. United 391 U.S. 20 L.Ed. 2d 476 which restricted the of a by use confession which codefendant impli- accused). cated the We conclude while the in Batson ruling may trial, incidentally tend to avoid unfairness in the is not one which bears substantially on the truth-finding process. We note Woods, in De 392 U.S. 20 L.Ed. 2d 1308 Stefano (1968), the Supreme Court held that the in ruling Duncan v. Loui- siana, (1968) (that 391 U.S. the fourteenth amendment guarantees right jury trial in some state court v. Jackson cases), Also, retroactively. ruling to be was not applied (that Louisiana, ex- 42 L.Ed. 2d 690 Taylor de- clusion from criminal jury deprives of women venires a state jury to trial right impartial fendant of his constitutional an community), was held to be drawn from a fair cross-section Louisiana, 42 L.Ed. 2d nonretroactive in Daniel v. (1975).If not feel that taken to en- Court did action force the to trial and to the exclusion right jury prevent women venires the truth- jury substantially from did not bear safely we think finding process, ruling it can be said that Batson does not do so either. we hold not to be summary, ruling

In that the Batson is retroactively. only will be to those applied applicable deci- jury place cases where the selection took after the Batson place sion Since selection in took jury was rendered. this case decided, before overrule the argument Batson was we defendant’s protection through that the violated his prosecution equal rights peremptory challenges. use of its ^[4] The defendant also contends prosecution’s use of his sixth amend challenges violated and fourteenth peremptory ment from a fair to have drawn cross-section right held, recently community. The United States Court has case, sixth of a qualification” the context “death appliеs only pool requirement amendment fair cross-section jurors require from selected and no petit imposes which the are jurors actually ment chosen must mirror petit in the community reflect various distinctive groups and population. ruled that Eighth qualification” Circuit “death . . to a Sixth right under the Amendment.

violated McCree’s com- from a cross-section jury representative selected re- that the cross-section munity. But we do not believe fair can, should, court broadly as as that applied or be quirement cross- never invoked the fair apply to it. We have attempted for-cause or the use of either invalidate principle section jurors, require or to challenges to prospective peremptory venires, to reflect or opposed jury panels petit juries, limited community . . . The of at large. composition in- direct and is a requirement of the fair cross-section scope 22 consequence

evitable of pro- practical impossibility each criminal viding truly defendant with “representative” States, 710, petit (CA8 1967) .... v. 372 F. 2d 725 Popе United J.) (“The (Blackmun, point at which an accused is entitled to a fair community cross-section is when the drawn”), are names put the box from which the are panels (1968). vacated other 392 grounds, U.S. 651 We remain convinced that an extension of the fair cross-section require- unsound, ment to petit juries would be unworkable and we decline adopt McCree’s invitation to such an extension. McCree, 162, —, 137, v. Lockhart 476 U.S. 90 L.Ed. 2d 147-48 (citations omitted); Louisiana, 522, Taylor 419 v. 42 U.S. (1975). Elkerson, 658, 2d 690 L.Ed. also v. 304 See State N.C. 285 (1982); 126, S.E. 2d 784 (1980). 299 S.E. Avery, State N.C. 2d 803 evidence, presented The defendant has no nor does con- he tend, of the venire make-up panel petit from which the jury was selected violated the fair cross-section requirement. This assignment error is overruled.

Finally, argues the defendant the trial court erred failing grant his motion to dismiss the charge of first-degree murder. He claims that the State failed to present sufficient premeditation evidence of justify deliberation to the submis- sion of this charge jury. We do agree.

Before the issue of a guilt may defendant’s be submitted to jury, the trial court must be satisfied that substantial has evidencе been introduced tending to each prove essential ele ment of the charged offense and that the defendant was the per Hamlet, 162, (1984); petrator. State N.C. S.E. 2d (1980). Powell, 95, N.C. S.E. Substantial real, evidence must existing be but need not every exclude Williams, reasonable hypothesis innocence. State v. 308 N.C. denied, 301 S.E. 2d cert. 78 L.Ed. 2d denied, 2d 704 reh’g L.Ed. In considering dismiss, a motion to the trial court must examine the evidence in State, most light favorable to the and the State is entitled to every reasonable intendment and inference to be drawn there Hamlet, 162, 837; from. v. 312 State N.C. 321 S.E. 2d v. State (1980). 243, 301 271 S.E. Bright, N.C. 2d 368 Contradictions and in the discrepancies evidence are for the to resolve and do 23 SUPREME COURT IN THE v. Jackson

State 40, Brown, 337 S.E. 2d 315 v. N.C. State warrant dismissal. (1985); not 95, Powell, 261 299 S.E. 2d N.C. v. 808 State killing unlawful is the intentional and murder First-degree and delibera- and with premeditation with malice being a human (1979); 559, 251 S.E. 2d 430 296 N.C. Fleming, tion. State v. 1985). (1981 means Premeditation Supp. 14-17 and Cum. N.C.G.S. § time, length for some out beforehand thought the act was short, necessary for amount of time is but no particular however 40, Brown, 315 v. N.C. premeditation. State process the mental 671, 808; 768 299 263 S.E. 2d N.C. Myers, 337 S.E. 2d v. State (1980). kill, carried out in a cool means an intent Deliberation blood, for or to design revenge of a fixed in furtherance state of a and not under the influence an unlawful accomplish purpose just legal lawful or cause or suddenly violent aroused passion, 162, 837; Hamlet, 321 S.E. 312 State v. N.C. provocation. State (1982). Bush, 152, 563 “cool phrase 307 297 S.E. 2d v. N.C. or emotion must anger state of blood” means that the defendant’s 299 Myers, not to overcome his reason. State v. have been such as 671, 263 S.E. 2d 768. N.C. relate to mental processes and deliberation

Premeditation by direct ordinarily readily proof susceptible are Instead, they usually proved must be circumstantial evidence. (1975). 408, Buchanan, 80 215 S.E. 2d evidence. v. N.C. State in determining circumstances to be considered other Among (1) are: was with and deliberation killing premeditation whether a (2) deceased; the conduct part on the want of provocation (3) killing; of the defendant before and after the and statements during of the defendant before and and declarations threats deceased; rise giving to the death of the course of the occurrence (4) (5) difficulty between the the deal parties; ill-will or previous after the deceased has been felled and ren ing of lethal blows was done in a killing dered evidence helpless; Brown, 40, 808; 315 N.C. 337 S.E. 2d brutal manner. State State Williams, 335, denied, 47, 301 S.E. 2d 464 U.S. cert. N.C. denied, 1004, 464 U.S. 2d 704. L.Ed. 2d L.Ed. reh'g and number of the victim’s We have also held that the nature premeditation wounds is a circumstance from which and delibera Bullard, 322 S.E. 2d tion can be inferred. N.C. (1984); Brown, 293 S.E. 2d cert. State v. N.C. denied, 1080, 24

[5] We conclude in present that there was substantial evidence killing that was premeditated and deliberate and that the trial court did not err in submitting to ques guilt tion defendant’s of first-degree murder based on pre meditation and deliberation. There was no evidence that Mrs. Kennedy any way provoked the defendant into her. attacking Following the killing, callously the defendant Dickey remarked to Furthermore, “somebody messed her bad.” up in his [had] statement, the defendant admitted he had attempted to up by cover his involvement the crime placing the steel file in by the knife rack and disposing of the murder weapon. The na ture of the wound also tends to show that killing was premed deliberate, itated knife Kennedy’s thrust into Mrs. back with such force that it went completely body. her through appears argue to that because his confession evidence, was introduced into the prosecution was bound portion of the statement tending show that the killing occurred in a moment panic and was premeditated not and deliberate. An unlawful is killing deliberate and premeditated if done pur- kill, suant design fixed notwithstanding that defendant time, was angry or in an emotional state at the unless such anger or emotion was such as to disturb the faculties and reason. State (1984); Whitley, N.C. S.E. 2d Myers, State v. 263 S.E. N.C. 2d There was absolutely no evidence the defendant’s mental faculties were impaired ex- to this tent.

Furthermore, it is well established that is State bound the exculpatory portions of a confession which in troduces if other is presented evidence that tends to rebut or con tradict the exculpatory portions of the statement. E.g., State denied, May, 235 S.E. N.C. cert. The defendant implicitly asserts immediately stabbing followed the first scream. The pre State sented evidence which ‍​‌​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌​​​​‌​‌‌‌​​‌​​‌​‌‌‌​‌‌‌​​​‌‍tended thirty to show that as much as forty-five may Kennеdy’s seconds have elapsed between initial addition, scream and her final scream. In layout the physical crime scene would tend to rebut the notion that the stabbing immediately occurred after the initial scream. Even under defend incident, victim, ant’s version of the in order to stab the IN THE SUPREME COURT Jackson bed; go night would have had to off the get knife; table, bed; pick up which was some distance from the bed and victim. This would tend and then return to the stab the initial scream elapsed of time from the period to show that some have inferred was inflicted. The could until the fatal wound State, evidence, light in the most favorable to from the taken the second the fatal stab was not inflicted until the time of scream, the kill- support finding and such inference would is assignment and deliberate. This of error ing premeditated overruled. trial, a fair free er- prejudicial

The defendant received from ror.

No error. did or participate

Justice BILLINGS the consideration case. decision of this dissenting part.

Justice EXUM my in which dissenting opinion, For the reasons stated Frye joined, appeal first Justice Branch and Justice Chief issue, majority opinion I portion dissent from that of this confession was admissible. State which concludes defendant’s Jackson, (1983) (Exum, J., 304 S.E. dissent- N.C. I join opinion. in all of the Court’s ing). aspects other FRYE joins dissenting opinion.

Justice in this

Case Details

Case Name: State v. Jackson

Court Name: Supreme Court of North Carolina

Date Published: Jun 3, 1986

Citation: 343 S.E.2d 814

Docket Number: 351A84

Court Abbreviation: N.C.