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Edward Ernest HARTMAN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: June 3, 1993
Date of arrest: June 24, 1993
Date of birth: August 25, 1964
Victim profile: Herman Smith, Jr., 77 (former boyfriend of Hartman's mother)
Method of murder: Shooting
Location: Northampton County, North Carolina, USA
Status: Executed by lethal injection in North Carolina in October 3, 2003
 
 

 
 

Summary:

Hartman admitted to police that after drinking 16 beers he shot 77 year old Herman Smith, Jr. in the head from close range while the man sat in a recliner and watched television.

Smith was a former boyfriend of Hartman's mother and Hartman was living at his house. Hartman told a friend Smith was wealthy and carried thousands of dollars in his pocket. He took the man's car and left the body in the chair.

Five days later he returned and buried the body in a horse stable then led authorities there after learning he was a suspect.

Hartman maintained he was unfairly treated during his trial because the prosecutor repeatedly referred to his homosexuality.

Citations:

State v. Hartman, 476 S.E.2d 328 (N.C. 1996) (Direct Appeal)

Final Meal:

Greek salad, linguini with clam sauce, garlic bread, cheesecake with cherry topping and a Coke.

Final Words:

Hartman issued no final statement.

ClarkProsecutor.org


North Carolina Department of Correction

HARTMAN, EDWARD E.

DOC Number: 0172549
DOB: 08/25/1964
RACE: WHITE
SEX: MALE

9/4/03 - Correction Secretary Theodis Beck sets a second execution date for Oct. 3, 2003.

2/6/03 - Northampton County Superior Court Judge Cy Grant issues an execution stay for Edward Hartman while the State Supreme Court considers whether murder indictments must include the "aggravating circumstances" that elevate first-degree murder to a capital offense.

1/29/03 - Correction Secretary Theodis Beck sets Edward Hartman's execution date for Feb. 28, 2003.

1/13/03 - US Supreme Court denied Hartman's petition for a writ of certiorari

10/20/94 - Edward Hartman sentenced to death in Northampton Co. Superior Court for the murder of Herman Smith Jr.

Date: January 22, 2002 - Execution date set for Edward Hartman

RALEIGH - Correction Secretary Theodis Beck has set February 28, 2003 as the execution date for death row inmate Edward Ernest Hartman. The execution is scheduled for 2 a.m. at Central Prison in Raleigh.

Hartman, 38, was sentenced to death on October 20, 1994 in Northampton County Superior Court for the June 1993 murder of Herman Smith Jr. In addition, Hartman received a 40-year concurrent sentence for armed robbery.

A media tour is scheduled at Central Prison on Monday, Feb. 24. Interested media representatives should arrive at Central Prison’s visitor center promptly at 10 a.m. on the tour date. Warden R.C. Lee will explain the execution procedures. The session will last approximately one hour. This will be the only opportunity to photograph the execution chamber and death watch area before the execution. Journalists who plan to attend the tour should contact the Department of Correction Public Information Office at 919-716-3700.

Date: September 4, 2003 - Execution date set for Edward Hartman

RALEIGH - Correction Secretary Theodis Beck has set Friday, Oct. 3, 2003 as the execution date for death row inmate Edward Ernest Hartman. The execution is scheduled for 2 a.m. at Central Prison in Raleigh.

Hartman, 38, was sentenced to death on October 20, 1994 in Northampton County Superior Court for the June 1993 murder of Herman Smith Jr. In addition, Hartman received a 40-year sentence for armed robbery.

A media tour is scheduled at Central Prison on Monday, Sept. 29. Interested media representatives should arrive at Central Prison’s visitor center promptly at 10 a.m. on the tour date. Warden Marvin Polk will explain the execution procedures. The session will last approximately one hour. This will be the only opportunity to photograph the execution chamber and death watch area before the execution.

Journalists who plan to attend the tour should contact the Department of Correction Public Information Office.


Edward Ernest Hartman (August 25, 1964 – October 3, 2003) was convicted of the 1993 murder of Herman Smith, Sr. and was executed via lethal injection in 2003 by the State of North Carolina at Central Prison in Raleigh, North Carolina.

Hartman confessed to the crime but requested a life sentence. According to The News & Observer, five mitigating factors were presented at Hartman's trial, including alcoholism (he claimed to be severely intoxicated at the time of the murder) and childhood abuse. The jury felt that these factors were outweighed by Hartman's theft of Smith's car and money.

In seeking clemency, Hartman's lawyers (along with outside groups) argued that the prosecution had utilized Hartman's sexuality (he was gay) in a discriminatory manner, an argument rejected by the courts and by Governor Mike Easley of North Carolina.


ProDeathPenaly.com

Edward Hartman told authorities he consumed 16 cans of beer before he fired a pistol at close range into Smith's head while the man sat in a recliner and watched television. Hartman was living at Smith's home at the time.

Court records show Hartman told a friend Smith was wealthy and carried thousands of dollars in his pocket. He took the man's car and left the body in the chair. He returned five days later after taking several trips where he wrote checks on Smith's bank account.

Bothered by the smell, he dragged the body to a horse stable and buried it. Horses in the stable trampled the ground so thoroughly that it would have been impossible to tell where the body was buried. After he was identified as the suspect, Hartman led officers to the spot.

UPDATE: Edward Hartman, who said he had guzzled 16 cans of beer before deciding to shoot the elderly man he was living with in the head, was executed by lethal injection Friday morning at the state prison. Hartman issued no final statement before his execution at Central Prison, staring at the ceiling after greeting one of his lawyers.

Hartman, 38, had confessed to the 1993 murder of Herman Smith. Jr. Smith, 77, was Hartman's mother's former boyfriend. Hartman later told lawmen that after consuming the beer, he shot Smith in the head as the victim sat in a recliner watching television. The murder occurred in Northampton County. After killing Smith, court documents stated, Hartman left the victim's body in the reclining chair and took his car.

After about five days, Hartman took the body to a stable and buried it. Hartman was originally scheduled for execution in February, but his trip to the death house was delayed while the State Supreme Court decided whether murder indictments must include the "aggravating circumstances" that elevate first-degree murder to a capital offense.

The court eventually ruled that prosecutors did not have to list those aggravating factors in the murder indictment. Hartman's defense lawyers claimed that Hartman was targeted for death because he was gay. During Hartman's trial, defense lawyers argued that Hartman had various psychological and alcohol related problems and that he had been the victim of sexual abuse.

The prosecutor countered that the sexual abuse was not important because Hartman was gay. But the courts rejected those appeals and Gov. Mike Easley rejected pleas to reduce Hartman's sentence to life in prison.


State executes convicted killer

Governor denies clemency after U.S. Supreme Court declines to hear case of man who killed housemate

By Matthew Eisley - Raleigh News & Observer

October 3, 2003

Convicted murderer Eddie Hartman was executed early today for killing his elderly housemate in 1993, after the U.S. Supreme Court and Gov. Mike Easley declined to intervene.

Easley denied Hartman clemency about 8 p.m. Thursday, several hours after the U.S. Supreme Court declined to stop the execution and review Hartman's case. The state Supreme Court had denied Hartman's latest appeal on Wednesday.

Hartman's lawyers had asked Easley to convert Hartman's sentence to life in prison without parole. They argued to the governor and to the courts that Hartman was "singled out for the death penalty because he is gay." "Cases that result in the ultimate punishment -- death -- must be free of all forms of discrimination," said Hartman's lead lawyer, Heather Wells of Wilmington.

Easley's public statement denying Hartman clemency didn't address the gay-bias argument. "After a careful review of this case, I find no sufficient reason to overturn the sentence recommended by the jury and affirmed by the courts," the statement said. Hartman met Thursday night with his lawyers, said Pamela Walker , spokeswoman for the Department of Correction.

Hartman, 39, died by lethal injection at Central Prison in Raleigh shortly after 2 a.m. today. His execution was the state's fourth in six weeks. Hartman's last meal was a Greek salad, linguini with clam sauce, garlic bread, cheesecake with cherry topping and a Coke, Walker said.

Hartman was sentenced to die for the 1993 murder of Herman Smith, 77, of Conway. After drinking 16 beers, Hartman shot Smith in the back of the head with a pistol one night as Smith sat in a recliner chair in his home, where Hartman lived. Hartman then stole Smith's money and car. A Northampton County jury convicted Hartman of first-degree murder and armed robbery.

Lawyers for the state opposed Hartman's request for a reprieve and denied that he had been the victim of unfair prejudice. There was no question of Hartman's guilt, and he confessed. After his conviction, he sought a life sentence based mostly on his traumatic upbringing, including suffering sexual abuse as an 8-year-old boy, when an uncle repeatedly made him perform oral sex.

Hartman's lawyers argued that he might have received life in prison instead of a death sentence if District Attorney David Beard had not improperly said several times in front of the trial jury that Hartman was gay, apparently trying to minimize his sexual abuse. Each time, the judge told the jurors to disregard the improper remarks. But not a single juror concluded that Hartman's repeated sexual abuse mitigated his sentence, although factors such as seeing his mother's abuse and suicide attempts did.

The state's lawyers maintain that the jury didn't consider Hartman's childhood abuse a mitigating factor because there wasn't credible evidence of it. The jury found that Hartman's robbery of Smith outweighed five mitigating factors, including Hartman's alcoholism.

Several gay organizations, gay officials and critics of the death penalty had urged Easley, a former district attorney, to grant Hartman clemency and publicly disapprove of Beard's tactics. The state Supreme Court ruled in an earlier appeal that the judge's instruction to the jury to disregard Beard's improper statements was enough to correct them.


Man Executed for Killing Mother's Ex-Boyfriend

CNN News

October 3, 2003

RALEIGH, North Carolina (AP) -- A man who killed his mother's former boyfriend while living in the man's house in 1993 was executed early Friday by injection. Edward Hartman, 38, was pronounced dead at 2:14 a.m., said Department of Correction spokeswoman Pam Walker.

Harman lost appeals alleging prosecutors tried to inflame jurors by talking repeatedly about his homosexuality. Gov. Mike Easley denied a stay Thursday night that was requested by Hartman's lawyers. Earlier Thursday, the U.S. Supreme Court denied the request for a stay and review of the case.

Hartman admitted to the slaying of 77-year-old Herman Smith Jr. while Hartman was living at the man's house. Prosecutors said after drinking heavily, Hartman shot Smith in the head from close range while the man sat in a recliner and watched television.

Court records show Hartman told a friend Smith was wealthy and carried thousands of dollars in his pocket. He took the man's car and left the body in the chair. He eventually buried the body in a horse stable and led authorities there after learning he was a suspect.

Defense lawyer Heather Wells said Hartman was unfairly treated during his trial because a prosecutor repeatedly referred to Hartman's homosexuality, which had nothing to do with the killing. "From jury selection through the cross-examination of several penalty phase witnesses, the prosecution repeatedly made references to Eddie's homosexuality," Wells said. "Eddie's homosexuality has no relevance to the crime or the circumstances surrounding the crime and no relevance to whether he should live or die."


N.C. Man Executed for 1993 Slaying

By William L. Holmes - Wilmington Star

AP October 03, 2003

A man convicted in a 1993 shooting death in Northampton County said just one word in the final minutes of his life, turning to greet one of his lawyers and then turning back to stare at the ceiling of the death chamber.

Edward Hartman, 38, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., Department of Correction spokeswoman Pam Walker said.

Hartman was sentenced to die for the slaying of 77-year-old Herman Smith Jr. in the Pinetops community. Smith was a former boyfriend of Hartman's mother and Hartman was living at his house.

Hartman issued no final statement. He appeared to say "hi" or "hey" to attorney Heather Wells through a window shortly after he was brought into the death chamber and then smiled before turning away. He didn't acknowledge any of the other 11 people who watched his execution, choosing to alternately close his eyes and stare at the ceiling until prison medical workers began to administer the lethal drugs at 2 a.m.

Wells cried as Hartman's stomach heaved. Edwin West III, another of Hartman's lawyers, put his arm around her shoulder to comfort her. They hugged just before Hartman was declared dead. None of Hartman's family witnessed the execution. Larry Smith, Herman Smith's son, watched stoically. He and the other witnesses declined to comment after Hartman's death.

Wells argued that Hartman was sentenced to death because of anti-gay bias by prosecutors during his trial. The U.S. Supreme Court turned down an appeal Thursday alleging discrimination based on Hartman's homosexuality. Gov. Mike Easley denied clemency for Hartman on Thursday, declining to reduce Hartman's sentence to life in prison.

A prosecutor repeatedly referred to Hartman's sexual preference during his original trial, even though it had nothing to do with Smith's death, Wells said. "From jury selection through the cross-examination of several penalty phase witnesses, the prosecution repeatedly made references to Eddie's homosexuality," Wells said. "Eddie's homosexuality has no relevance to the crime or the circumstances surrounding the crime and no relevance to whether he should live or die." Gay rights groups protested the sentence and the Inter-American Commission on Human Rights asked the U.S. government to intervene so the commission could investigate.

"This is a case where the victim was 77 years old and killed in his home," Northampton County prosecutor Valerie Mitchell Asbell said. "This killing was premeditated. It was a horrible killing."

Hartman told authorities he drank 16 cans of beer before he shot Smith in the head from close range while the man sat in a recliner watching television. Hartman told a friend Smith carried thousands of dollars in his pocket, court records show. He took the man's car and left the body in the chair. He eventually buried the body in a horse stable and led authorities there after learning he was a suspect.

About 100 people opposed to the death penalty gathered outside the prison late Thursday, many holding candles and singing. Eight or nine protesters sat in a driveway blocking traffic into the prison. No arrests were reported. North Carolina has executed four people this year and 27 since the death penalty was reinstated in 1977.


Hartman Executed For 1993 Slaying

38-Year-Old Issued No Final Statement

NBC Channel 17 News

RALEIGH, N.C. -- A man convicted in a 1993 shooting death in Northampton County said just one word in the final minutes of his life, turning to greet one of his lawyers and then turning back to stare at the ceiling of the death chamber. Edward Hartman, 38, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., Department of Correction spokeswoman Pam Walker said.

Hartman was sentenced to die for the slaying of 77-year-old Herman Smith Jr. in the Pinetops community. Smith was a former boyfriend of Hartman's mother and Hartman was living at his house.

Hartman issued no final statement. He appeared to say "hi" or "hey" to attorney Heather Wells through a window shortly after he was brought into the death chamber and then smiled before turning away. He didn't acknowledge any of the other 11 people who watched his execution, choosing to alternately close his eyes and stare at the ceiling until prison medical workers began to administer the lethal drugs at 2 a.m.

Wells cried as Hartman's stomach heaved. Edwin West III, another of Hartman's lawyers, put his arm around her shoulder to comfort her. They hugged just before Hartman was declared dead. None of Hartman's family witnessed the execution. Larry Smith, Herman Smith's son, watched stoically. He and the other witnesses declined to comment after Hartman's death.

Wells argued that Hartman was sentenced to death because of anti-gay bias by prosecutors during his trial. The U.S. Supreme Court turned down an appeal Thursday alleging discrimination based on Hartman's homosexuality. Gov. Mike Easley denied clemency for Hartman on Thursday, declining to commute Hartman's sentence to life in prison.

A prosecutor repeatedly referred to Hartman's sexual preference during his original trial, even though it had nothing to do with Smith's death, Wells said. "From jury selection through the cross-examination of several penalty phase witnesses, the prosecution repeatedly made references to Eddie's homosexuality," Wells said. "Eddie's homosexuality has no relevance to the crime or the circumstances surrounding the crime and no relevance to whether he should live or die." Gay rights groups protested the sentence and the Inter-American Commission on Human Rights asked the U.S. government to intervene so the commission could investigate.

"This is a case where the victim was 77 years old and killed in his home," Northampton County prosecutor Valerie Mitchell Asbell said. "This killing was premeditated. It was a horrible killing." Hartman told authorities he drank 16 cans of beer before he shot Smith in the head from close range while the man sat in a recliner watching television.

Hartman told a friend Smith carried thousands of dollars in his pocket, court records show. He took the man's car and left the body in the chair. He eventually buried the body in a horse stable and led authorities there after learning he was a suspect.

About 100 people opposed to the death penalty gathered outside the prison late Thursday, many holding candles and singing. Eight or nine protesters sat in a driveway blocking traffic into the prison. No arrests were reported. North Carolina has executed four people this year and 27 since the death penalty was reinstated in 1977.


U.S. High Court Denies Hartman's Appeal

Charlotte Observer

October 3, 2003

RALEIGH - A death row prisoner moved closer to his execution Thursday as the U.S. Supreme Court denied his request for a stay because of alleged anti-gay bias by prosecutors.

Edward Hartman, 38, was convicted of the 1993 slaying of 77-year-old Herman Smith Jr. in the Pinetops community of Northampton County. His execution was set to have taken place at 2 a.m. today. Gov. Mike Easley still had to decide whether to commute the sentence to life in prison.

Defense lawyer Heather Wells of Wilmington said a prosecutor unfairly referred to Hartman's homosexuality repeatedly during the trial.

When defense attorneys pointed out that adult relatives sexually abused Hartman while he was a child, former District Attorney David Beard attempted to argue that the abuse wasn't meaningful because Hartman is homosexual, Wells said.


N.C. Governor Hears Pleas to Spare Condemned Murderer's Life

By Scott Mooneyham - Charlotte Observer

AP - Sep. 30, 2003

RALEIGH, N.C. - Attorneys for convicted murderer Edward Hartman urged Gov. Mike Easley to spare his life Tuesday, saying no one should be executed when prosecutors try to inflame jurors with a defendant's homosexuality. "This case is an important case in North Carolina. It is never acceptable and never OK when a prosecutor in a case tries to inject prejudice and discriminates," said Hartman attorney Edwin L. West III. Hartman, 38, is scheduled to be executed at 2 a.m. Friday. He was moved Monday afternoon to the death watch area of Central Prison.

Hartman admitted killing 77-year-old Herman Smith Jr. in the Pinetops community of Northampton County in 1993. Smith was shot and killed in his home after taking in Hartman.

Current Northampton County prosecutor Valerie Mitchell Asbell said after meeting with the governor that appellate courts have already examined the issues regarding Beard's use of Hartman's sexuality in his question. They found no reason to reverse the case on those grounds, she said. "This is a case where the victim was 77 years old and killed in his home," Asbell said. "This killing was premeditated. It was a horrible killing." Easley typically rules on clemency requests the day before the scheduled execution, and rarely comments on the cases before then.

According to court documents, former Northampton County prosecutor David Beard raised the issue of Hartman's homosexuality during the sentencing phase of his trial. Beard has refused to comment on the case.

During testimony by an aunt that Hartman was sexually abused as a child, Beard stated: "Well, you knew that Mr. Hartman is a homosexual. You've heard that?" After Hartman's lawyer objected and the judge ruled the question out of order, Beard again raised the issue of Hartman's sexual orientation. "The death penalty may be appropriate in some cases, but it is never appropriate in a case like this," West said.

But Smith's relatives say the murder was especially heinous and deserving of the death penalty. "He was helping someone out. He took him into his home, and he was paid back with a shot in the back of the head," said Smith's daughter-in-law, Vicky Smith. "Edward Hartman ripped our heart and soul out, and he started a nightmare."

A number of gay and lesbian rights groups have issued statements condemning Hartman's scheduled execution. They also plan to put advertisements in four North Carolina newspapers, urging people to contact Easley and ask him to commute the sentence. "Through our work, we regularly see how prejudice and homophobia unfairly affect the outcome of cases. For these reasons, Lambda Legal strongly opposes the death penalty and joins the call for clemency in the case of Eddie Hartman," said Hector Vargas, regional director of Lambda Legal Defense & Education Fund.

Hartman's lawyers have also filed a request with the state Supreme Court asking to stay his execution, vacate the death sentence and send the case back to Northampton County Superior Court for a life sentence.


Gay Killer Executed in N.C. for Murder of Elderly Man

DeathHouse.com

October 3, 2003

Edward Hartman, who said he had guzzled 16 cans of beer before deciding to shoot the elderly man he was living with in the head, was executed by lethal injection Friday morning at the state prison.

Hartman issued no final statement before his execution at Central Prison, staring at the ceiling after greeting one of his lawyers. Hartman was the fourth condemned killer executed in the state in 2003. Another man, Joseph Keel, is scheduled for death Nov. 7 for the murder of his father-in-law.

Shot In Recliner

Hartman, 38, had confessed to the 1993 murder of Herman Smith. Jr. Smith, 77, was Hartman's mother's former boyfriend. Hartman later told lawmen that after consuming the beer, he shot Smith in the head as the victim sat in a recliner watching television. The murder occurred in Northampton County.

After killing Smith, court documents stated, Hartman left the victim's body in the reclining chair and took his car. After about five days, Hartman took the body to a stable and buried it. Hartman was originally scheduled for execution in February, but his trip to the death house was delayed while the State Supreme Court decided whether murder indictments must include the "aggravating circumstances" that elevate first-degree murder to a capital offense.

Lawyers: Victim Of Gay Bias

The court eventually ruled that prosecutors did not have to list those aggravating factors in the murder indictment. Hartman's defense lawyers claimed that Hartman was targeted for death because he was gay.

During Hartman's trial, defense lawyers argued that Hartman had various psychological and alcohol related problems and that he had been the victim of sexual abuse. The prosecutor countered that the sexual abuse was not important because Hartman was gay. But the courts rejected those appeals and Gov. Mike Easley rejected pleas to reduce Hartman's sentence to life in prison.


Gay inmate executed in North Carolina

Advocate.com

A gay man convicted in a 1993 shooting death in Northampton County, N.C., said just one word in the final minutes of his life, turning to greet one of his lawyers and then turning back to stare at the ceiling of the death chamber.

Edward Hartman, 38, was executed by injection at Central Prison in Raleigh. He was pronounced dead at 2:14 a.m., Department of Correction spokeswoman Pam Walker said.

Hartman was sentenced to die for the slaying of 77-year-old Herman Smith Jr. in the community of Pinetops. Smith had been a former boyfriend of Hartman's mother, and Hartman was living at his house.

Hartman's attorney, Heather Wells, had tried to stop the execution by arguing that Hartman had received the death penalty because of antigay bias by prosecutors during his trial.

The U.S. Supreme Court turned down an appeal Thursday that alleged discrimination based on Hartman's homosexuality. Gov. Mike Easley denied clemency for Hartman on Thursday, declining to reduce Hartman's sentence to life in prison.

During the original trial a prosecutor repeatedly referred to Hartman's sexual orientation, even though it had nothing to do with Smith's death, Wells said. "From jury selection through the cross-examination of several penalty-phase witnesses, the prosecution repeatedly made references to Eddie's homosexuality," Wells said. "Eddie's homosexuality has no relevance to the crime or the circumstances surrounding the crime and no relevance to whether he should live or die." Gay rights groups protested the sentence, and the Inter-American Commission on Human Rights asked the U.S. government to intervene so the commission could investigate.

"This is a case where the victim was 77 years old and killed in his home," Northampton County prosecutor Valerie Mitchell Asbell said. "This killing was premeditated. It was a horrible killing."

Hartman told authorities he drank 16 cans of beer before he shot Smith in the head at close range while the man sat in a recliner watching television. Hartman told a friend that Smith carried thousands of dollars in his pocket, court records show. He took the man's car and left the body in the chair. He eventually buried the body in a horse stable and led authorities there after learning he was a suspect.

Hartman issued no final statement before his execution. He appeared to say "Hi" or "Hey" to attorney Wells through a window shortly after he was brought into the death chamber and then smiled before turning away. None of Hartman's family witnessed the execution.

Larry Smith, Herman Smith's son, watched stoically. He and the other witnesses declined to comment after Hartman's death. About 100 people opposed to the death penalty gathered outside the prison late Thursday, many holding candles and singing. Eight or nine protesters sat in a driveway blocking traffic into the prison. No arrests were reported. North Carolina has executed four people this year and 27 since the death penalty was reinstated in 1977.


Edward Ernest Hartman is scheduled for execution

News & Record

January 29, 2003

RALEIGH (AP) -- A death row inmate who confessed to shooting and robbing an elderly family friend is scheduled for execution next month, state correction officials said Wednesday.

State Correction Secretary Theodis Beck scheduled Edward Ernest Hartman's execution for 2 a.m. Feb. 28 at Central Prison in Raleigh.

Hartman's lawyer said she planned to ask the North Carolina Supreme Court for a stay of execution based on another death row case in which it issued a stay so it could hold a hearing.

The state Supreme Court stopped the scheduled execution last week of Henry Lee Hunt after his lawyers argued that his indictment should have listed the reasons he was charged with capital murder. That appeal was based on an Arizona death row appeal decided last year by the U.S. Supreme Court.

Hartman attorney Heather Wells of Wilmington said the legal issue in his case was similar to Hunt's.

"We'll be asking for the stay based on the Hunt matter," Wells said.

One difference is that Hunt never confessed, while Hartman did.

Hartman, 38, was sentenced to death Oct. 20, 1994, in Northampton County Superior Court for the June 1993 murder of Herman Smith Jr. Hartman also was sentenced to 40 years in prison for armed robbery.

Hartman told authorities he had consumed 16 cans of beer before firing a pistol at close range into Smith's head while the victim watched television in a recliner. Court records show Hartman told a friend that Smith was wealthy and carried thousands of dollars in his pocket.

Hartman, who had been living in Smith's home, took the man's car and left the body in the chair. Five days later, after taking several trips in the car, Hartman said he was bothered by the smell and dragged Smith's body to a stable and buried it.

While using Smith's car, Hartman wrote checks on the dead man's bank account.

Hartman's lawyers presented no evidence before his conviction. During the sentencing phase, the defense presented evidence that Hartman had psychiatric problems including depression and anxiety and a history of alcohol abuse.

Hartman's mother testified that he had been sexually assaulted by an uncle, a step-brother and a step-father and witnessed her attempted suicide.


State v. Hartman, 476 S.E.2d 328 (N.C. 1996) (Direct Appeal)

Defendant was convicted in the Criminal Session of Superior Court, Northampton County, Frank R. Brown, J., of first-degree murder and robbery with firearm and was sentenced to death. Appeal as of right was taken on death sentence and appeal on robbery conviction bypassed Court of Appeals. The Supreme Court, Orr, J., held that: (1) judge's ex parte conversation with prospective juror was harmless error; (2) denial of challenge for cause was not abuse of discretion; (3) judge did not improperly express his opinion to jury; (4) statutory mitigating instructions that were combined in the conjunctive were proper; (5) defendant's proposed nonstatutory mitigating circumstances were subsumed in given instructions or not supported by evidence; (6) defendant was not entitled to instruction on lesser included offense of larceny; (7) mitigating instruction on mental disturbance that included conjunctive was proper; (8) victim's age was aggravating factor; and (9) death sentence was not disproportionate. No error.

ORR, Justice.

On 3 June 1993, twenty-eight-year-old defendant, Edward Ernest Hartman, shot Herman Smith, Sr., at close range in the back of the head while Mr. Smith was sitting in his recliner watching television. Mr. Smith was between seventy- two and seventy-seven years old, was in poor health, weighed only ninety-three pounds, and was suffering from emphysema at the time he was killed.

Defendant was indicted for first-degree murder and armed robbery and was tried capitally. Defendant was found guilty of first-degree murder based upon premeditation and deliberation and under the felony murder rule with robbery as the underlying felony. Defendant was also found guilty of robbery with a firearm.

Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court sentenced defendant accordingly. The trial court also entered a prayer for judgment continued with respect to the robbery conviction. On 13 January 1995, judgment was entered on the robbery conviction, and the trial court imposed a sentence of forty years' imprisonment to run consecutive to the sentence of death for the first-degree murder conviction.

Defendant appeals to this Court, asserting sixteen assignments of error. For the reasons stated herein, we conclude that defendant's trial and capital sentencing proceeding were free from prejudicial error and that defendant's sentence of death is not disproportionate.

During the guilt-innocence phase of defendant's trial, the State presented evidence tending to show the following: Defendant and Smith became acquainted through defendant's mother, Dot Simpson, who had lived with and cared for Smith some years earlier in Virginia and then later in Northampton County, North Carolina.

One year prior to the murder, after Ms. Simpson moved back to Virginia, defendant, who apparently had no place else to live, moved in with Smith. In February or March 1993, defendant told a friend, Emory K. Phipps, that Smith was a millionaire and always carried between four and five thousand dollars with him. Defendant also told Phipps that he wanted to kill Smith in order to get some of his money.

Defendant was arrested for Smith's murder on 24 June 1993. Defendant gave two statements to the police after his arrest. In his first statement, defendant indicated to the police that Smith's death was the result of an accidental shooting. Defendant later recanted that statement and confessed in a second statement to murdering Smith.

In this second statement, defendant stated that on Thursday, 3 June 1993, he had been working in the yard and drinking beer all afternoon. Around 7:00 p.m., having consumed a twelve-pack of beer, he bought another twelve-pack and ate dinner with Smith. Smith showed defendant his .38-caliber revolver, and they discussed repairing the gun.

At approximately 11:00 p.m., Smith was sitting in a recliner watching the news, and defendant was at a table with the loaded revolver about five to six feet behind him. By this time, defendant had consumed four beers from the second twelve-pack.

Defendant stated: Herman was sitting in a recliner in the den. I picked the gun up off the table, walked up behind Herman, pointed the gun at the back of Herman's head. The sight of blood makes me sick so I turned my head and at very close range, pulled the trigger and shot Herman Smith in the back of the head.

Thereafter, defendant stated that he considered and decided against calling his mother or the police. Instead, he gathered the gun, the remaining beer, a change of clothes, his dog, and Smith's car keys, and leaving Smith's body in the recliner, drove in Smith's car to his (defendant's) mother's house in Norfolk, Virginia, for one day.

Defendant's mother later testified that on 4 June 1993, the day after the murder, defendant asked her, "If Herman was to die, do you think you'd get anything?" On Saturday, 5 June 1993, defendant returned home. Smith's body was still in the recliner.

Defendant then headed to Roanoke Rapids, North Carolina, to play bingo. On three separate occasions between Saturday, 5 June 1993, and Tuesday, 8 June 1993, defendant used Smith's personal checks to write checks to himself. He cashed three of Smith's checks in the amount of $50.00 each at the bingo site and attempted to cash one for $2,500 at a bank, but the teller refused after the signature did not match the signature on file at the bank.

On Tuesday, 8 June 1993, defendant awoke at 3:00 a.m. to the smell of Smith's body, which was still in the recliner. After digging a hole in the stables in the backyard, defendant covered Smith's body in a blanket, dragged it out to the hole, and buried him. Before he buried the body, defendant removed a diamond ring from Smith's hand because defendant "did not have any money." He then drove Smith's car back to Norfolk, Virginia.

On 9 June 1993, defendant drove to Augusta, Georgia, to visit some friends. Defendant's friends testified that defendant drove Smith's car to Georgia.

Defendant tried to sell to his friends several items belonging to Smith including the diamond ring, the car, a shotgun, and the .38-caliber pistol with which defendant had shot Smith. Defendant's friends in Augusta, Carlos Petersen and James Yanak, testified that they also saw defendant with Smith's television, VCR, leather jacket, and "a large ... lump of money."

The following Monday, 14 June 1993, defendant returned to Norfolk, where he pawned Smith's ring. Defendant was later arrested in Norfolk on 24 June 1993.

Beginning on Saturday, 8 June 1993, Smith's relatives could not get in touch with him and soon became concerned.

On 10 June 1993, SBI Agent Malcolm McLeod found in a trash can located in defendant's home a ripped-up personal check of Smith's and a piece of paper on which Smith's name was written several times where defendant had apparently practiced Smith's signature in order to forge Smith's name on his personal checks. Agent Dennis Honeycutt, SBI crime technician, processed Smith's residence, and a luminal test revealed an uninterrupted blood line running from the recliner in the den out a side door towards the backyard. Smith's body was recovered from the grave in the stables in the backyard. Additionally, SBI

Agent Jennifer Elwell, a forensic serologist, testified that she examined the gun recovered from under Smith's car seat after defendant was arrested. When she wiped the inside of the gun barrel, she found a positive reaction for blood. Dr. Marcella F. Fierro, who at the time was a professor of pathology at East Carolina University, performed an autopsy on Smith's body and concluded that the contact gunshot wound to the back of Smith's head was the cause of Smith's death. Defendant did not present any evidence at the guilt-innocence phase.

During the capital sentencing proceeding, defendant's evidence tended to show from previous psychiatric evaluations that defendant has an adjustment disorder with depressed mood, conversion disorder, a closed head injury, and a history of alcohol abuse. Dr. Billy W. Royal, a medical doctor specializing in psychiatry and forensic psychiatry, testified that his psychological evaluation of defendant revealed that defendant also has a personality disorder with immaturity, impulsivity, and identity problems.

Defendant also suffers from chronic depression and an anxiety disorder. Defendant's mother testified that defendant had been sexually abused in the past by his sixteen-year-old uncle and one of his mother's stepsons and had been physically assaulted by one of his six stepfathers. In addition, defendant witnessed his mother attempt suicide and suffer numerous beatings at the hand of her husbands.

* * * *

By this assignment of error, defendant contends that he is entitled to a new sentencing hearing because the prosecutor sought to inflame the jurors by bringing before them defendant's purported homosexuality in an effort to undercut the evidence of defendant's sexual abuse.

During jury selection, the prosecutor asked the first twelve veniremembers whether "the sexual persuasion of someone[ ] would ... have any bearing upon [their] decision in this case."

Defendant immediately objected, and the trial court sustained defendant's objection. Subsequently, during cross-examination of defendant's aunt, the prosecutor had her clarify an earlier response on direct examination concerning her knowledge that defendant had been sexually abused as a child.

She testified that she had heard about the abuse but that she herself had no direct knowledge of it. The prosecutor then asked, "Well, you knew that Mr. Hartman is a homosexual. You've heard that." Defendant objected, and after sustaining defendant's objection, the trial court instructed the jury to disregard the improper statement of the prosecutor.

Then the prosecutor asked, "Did you know what sexual persuasion the defendant was?" Again, defense counsel objected, and the trial court sustained the objection. In response to defendant's contention, the State contends that defendant's engagement in homosexual activity with State's witness Richard Prince shortly after he murdered Smith was not consistent with defendant's evidence of remorsefulness. Thus, according to the State, the real purpose for asking about defendant's sexual persuasion was to rebut defendant's evidence of remorsefulness.

The assignment of error here parallels an issue raised in State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970), for which this Court held no error because curative instructions were given.

In Moore, one of the State's witnesses stated four times and his wife one time that the defendant had admitted to them that he had previously killed one person. On each of these five occasions, the trial court struck the witnesses' unresponsive answer from the record. This Court stated, "We do not, therefore, deem this evidence so inherently prejudicial that its initial impact--whatever it was--could not have been erased by the judge's prompt and emphatic instructions that the jury should not consider the testimony for any purpose whatsoever."

Here, the prosecutor's questions regarding defendant's sexual persuasion were never answered. Moreover, this Court has stated that where the trial court properly instructed the jury not to consider certain evidence, our system of justice is based upon the assumption that trial jurors are women and men " 'of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.' " Id. (quoting State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938). Thus, any error was corrected by the trial court's prompt curative instructions. This assignment of error is overruled.

 


283 F.3d 190

Edward Ernest Hartman, Petitioner-appellant,
v.
R.c. Lee, Warden, Central Prison, Raleigh, North Carolina,
Respondent-appellee

United States Court of Appeals, Fourth Circuit.

Argued January 25, 2002
Decided March 5, 2002

Before WILKINSON, Chief Judge, and WILKINS and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge WILKINS wrote the opinion, in which Chief Judge WILKINSON and Judge MICHAEL joined.

WILKINS, Circuit Judge.

Edward Ernest Hartman appeals an order of the district court denying his petition for a writ of habeas corpus.1 See 28 U.S.C.A. § 2254 (West 1994 & Supp. 2001). Hartman primarily contends that his constitutional right to adequate notice of the charges against him was violated by the use of a short-form indictment.2 Because at least one judge of the panel has concluded that Hartman "has made a substantial showing of the denial of a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West Supp.2001), we grant Hartman's application for a certificate of appealability, see 4th Cir.R. 22(a). We conclude, however, that the rejection of this claim by the North Carolina Supreme Court was neither contrary to, nor an unreasonable application of, clearly established federal law as decided by the Supreme Court. Accordingly, we affirm.

Until 1893, murder was an uncodified, common law crime in North Carolina. Beginning in 1887, North Carolina employed a "short-form" indictment for charges of murder. Currently codified at N.C. Gen. Stat. 15-144 (1999), the indictment statute provides that an indictment for murder is sufficient if, as is relevant here, it states "that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder" the victim.

In 1893, North Carolina followed the lead of other states and codified its murder statute; in so doing, it separated the offense of murder into two degrees. As presently codified, the murder statute provides:

A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of [enumerated felonies] shall be deemed to be murder in the first degree.... All other kinds of murder... shall be deemed murder in the second degree....

N.C. Gen.Stat. § 14-17 (1999). When it thus codified the murder statute, the North Carolina legislature explicitly preserved the short-form indictment dictated by § 15-144:

"[N]othing herein contained shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree."

State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613, 615 (1947) (quoting Act of 1893, ch. 85, § 3).

Thus, under North Carolina law, all murders are alleged in short-form indictments pursuant to § 15-144; the jury is required to determine the degree of murder (first or second) when it deliberates regarding the defendant's guilt. See State v. Watkins, 283 N.C. 17, 194 S.E.2d 800, 808(1973).

On June 3, 1993, Hartman shot Herman Smith, Sr. at close range in the back of the head. Hartman had been living with Smith and believed him to be wealthy; robbery was the apparent motive for the murder. Hartman was subsequently arrested and confessed to the crime.

Consistent with N.C. Gen.Stat. § 15-144, Hartman was charged in a short-form indictment. The heading of the indictment identified the charged crime as "murder," listed Hartman as the defendant, and set forth the date of the crime. J.A. 158. The body of the indictment provided:

The jurors for the State upon their oath present that on or about the date of offense [sic] shown and in the county named above the defendant named above unlawfully, willfully and feloniously did of malice aforethought kill and murder Herman Larry Smith, Sr. This being in violation of G.S. 14-17.

Id. At a motions hearing on May 4, 1994, the State made clear to Hartman that it sought to convict him of first degree murder on a theory of premeditation and that, in the event of such a conviction, it intended to seek the death penalty based on at least one aggravating factor, namely that the murder was committed during the course of a robbery.

Prior to trial, Hartman moved to dismiss the indictment on the basis that it failed to allege all of the necessary elements of first degree murder. The trial court denied the motion on the basis of previous decisions regarding the issue. Following a jury trial, Hartman was convicted of first degree murder; after the penalty phase, the jury sentenced him to death.

On direct appeal, Hartman again challenged the constitutionality of North Carolina's short-form indictment. The North Carolina Supreme Court summarily rejected this argument. See State v. Hartman, 344 N.C. 445, 476 S.E.2d 328, 347 (1996), cert. denied, 520 U.S. 1201, 117 S.Ct. 1562, 137 L.Ed.2d 708 (1997).

After pursuing state post-conviction review, Hartman filed this federal habeas action on October 14, 1999. As is relevant here, Hartman contended that "[t]he indictment... was insufficient to charge the offense of first-degree murder by the two theories of premeditation and deliberation and by felony murder because the indictment failed to allege all the essential elements of first-degree murder by these theories." J.A. 8. The district court rejected this argument, and Hartman now appeals.

Because the North Carolina Supreme Court adjudicated Hartman's challenge to the short-form indictment on the merits, we must determine whether "the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). The Supreme Court has concluded that a state court decision is "contrary to" clearly established Supreme Court precedent when "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or ... the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision rests on an "unreasonable application" of clearly established Supreme Court precedent when "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. When, as here, the state court does not articulate the rationale for its decision, our review is no less deferential than it is when we review a detailed state court analysis of a petitioner's claim. See Bell v. Jarvis, 236 F.3d 149, 158, 163 (4th Cir.2000) (en banc), cert. denied, ___ U.S. ___, 122 S.Ct. 74, 151 L.Ed.2d 39 (2001). However, the procedure differs slightly: We must conduct an independent review of the record and the applicable law to determine whether the result reached by the state court "contravenes or unreasonably applies clearly established federal law." Id. at 163 (internal quotation marks omitted).

With these principles in mind, we turn to an analysis of Hartman's claim. Hartman's assertion that the North Carolina short-form indictment for murder violates the Constitution rests upon two premises: First, that the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment require that a state charging document include all elements of the charged offense; and second, that as a matter of state law, first degree and second degree murder are separate offenses comprising different essential elements. Hartman maintains that the decision of the state court was contrary to the first premise because, in light of the second premise, the state court could uphold the constitutionality of the short-form indictment only by concluding that due process does not, in fact, require that all elements of an offense be alleged in the charging document. As explained below, we conclude that even if Hartman is correct with respect to his first premise, his argument founders on the second premise, because under North Carolina law, first and second degree murder are not distinct crimes, but rather are simply variations of the common law crime of murder.

Elementary principles of due process require that an accused be informed of the specific charge against him. See Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948); see also In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ("A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense ... are basic in our system of jurisprudence...."). This requirement is also imposed by the Sixth Amendment, which provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." U.S. Const. amend VI. In this regard, the Due Process Clause and the Sixth Amendment provide essentially the same protection to defendants. See Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir.1992).

Hartman maintains that the requirements of the Sixth and Fourteenth Amendments are satisfied only if the charging document sets forth all of the elements of the charged offense.3 But see 4 Wayne R. LaFave et al., Criminal Procedure § 19.3(a) (2d ed. 1999) (characterizing suggestion "that the pleading of all essential elements is mandated by the notice requirement of the Sixth Amendment" as "a dubious proposition"). In support of this proposition, Hartman relies primarily on Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461 (1897).4 Edward Hodgson was charged by information with selling liquor in violation of state law, and he maintained that the information was deficient because it failed to inform him, inter alia, of the date of the alleged offense, the type of liquor sold, and the buyer. Some of this information — particularly, the names of the purchasers known to the state — was supplied in a "specification." Hodgson, 168 U.S. at 264, 18 S.Ct. 80. In addressing Hodgson's claim, the Supreme Court acknowledged that

in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him; that in no case can there be, in criminal proceedings, due process of law, where the accused is not thus informed, and that the information which he is to receive is that which will acquaint him with the essential particulars of the offense, so that he may appear in court prepared to meet every feature of the accusation against him.

Id. at 269, 18 S.Ct. 80.

Hartman argues that this language stands unequivocally for the proposition that a prosecution comports with the Due Process Clause only when the defendant is notified of the elements of the charged offense in the charging document. We disagree. Hodgson certainly states that a defendant is entitled to notice of the charge against him, and we assume that Hartman is correct in contending that the "essential particulars" include all elements of an offense. However, nowhere does Hodgson say that the only constitutionally sufficient means of providing the notice required by the Sixth and Fourteenth Amendments is through the charging document.5 Indeed, although it adopted the holding of the Vermont Supreme Court that the information properly charged the elements of the offense, the Court noted that any defects in the information were cured by the specification and expressly declined to decide whether an information that failed to allege all of the elements of a crime would be valid in the absence of a specification. See id. at 272, 18 S.Ct. 80 (stating that "the question of the validity of the information in the absence of any specification is not presented by this case, and we therefore express no opinion on it"). At the very least, it is surprising that Hartman can point only to a single Supreme Court case from over 100 years ago to support a proposition asserted to be bedrock constitutional law. Nevertheless, we will assume for purposes of deciding this appeal that Hartman's reading of Hodgson is correct.

The State argues that even if, under Hodgson, a state charging document is constitutionally deficient if it fails to set forth every element of the offense, Hartman is not entitled to habeas relief. According to the State, the decision of the North Carolina Supreme Court in Hartman's case cannot be considered unreasonable in light of two Supreme Court cases, Davis v. Territory of Utah, 151 U.S. 262, 14 S.Ct. 328, 38 L.Ed. 153 (1894), and Bergemann v. Backer, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845 (1895), both of which addressed the constitutionality of short-form murder indictments.

In Davis, the defendant argued that his indictment — which charged him with murdering the victim "willfully, feloniously, and of his deliberately premeditated malice aforethought," Davis, 151 U.S. at 263, 14 S.Ct. 328 (internal quotation marks omitted) — was inadequate to support a conviction for murder in the first degree because it failed to allege any of the factors distinguishing first-degree murder from second-degree murder. As the Supreme Court observed, "[t]his objection [was] based, in part, upon the theory that murder in the first degree and murder in the second degree are ... distinct, separate offenses." Id. at 266, 14 S.Ct. 328. The Supreme Court rejected this contention, concluding that "this is an erroneous interpretation of the statute. The crime defined is that of murder. The statute divides that crime into two classes, in order that the punishment may be adjusted with reference to the presence or absence of circumstances of aggravation...." Id.

As support for this conclusion, the Court examined the history of the statutory division of murder into degrees, noting that Pennsylvania was the first state to enact such a law. The Pennsylvania statute "recite[d] as the reason for its passage that the several offenses, which were included in the general denomination of `murder,' differed greatly in the degree of their atrocity, and that it was unjust to involve them in the same punishment." Id. at 267, 14 S.Ct. 328. The Supreme Court also pointed to a decision of the Pennsylvania Supreme Court, which held that the statute "`does not define the crime of murder, but refers to it as a known offense.... All that it does is to define the different kinds of murder, which shall be ranked in different classes, and be subject to different punishments.'" Id. at 268, 14 S.Ct. 328 (quoting White v. Commonwealth, 6 Binn. 179 (Pa.1813)); see id. (noting views of concurring justice, who stated that "`[d]ifferent degrees of guilt exist under the general crime of murder, which is therefore arranged under two classes ... The uniform practice, since the act was passed, has been to lay the offense as at common law'"). And, the Court cited cases from ten other states holding that the division of murder into degrees did not create separate offenses for first and second degree murder.

One year later, in Bergemann, the Court addressed the constitutionality of a short-form murder indictment under New Jersey law. Bergemann was charged with murder in a short-form indictment alleging that he "did willfully, feloniously, and of his malice aforethought kill and murder" the victim. Bergemann, 157 U.S. at 655, 15 S.Ct. 727 (internal quotation marks omitted). After he was convicted and sentenced to death, Bergemann petitioned for federal habeas relief on the basis that the short-form indictment did not adequately charge him with first-degree murder as that crime was defined by New Jersey law. The New Jersey murder statute provided as follows:

All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in perpetrating or attempting to perpetrate, [enumerated felonies], shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury ... shall ... designate by their verdict whether it be murder of the first or second degree.

Id. at 657, 15 S.Ct. 727 (internal quotation marks omitted). The Supreme Court rejected Bergemann's challenge to the adequacy of the indictment on the basis of New Jersey case law holding that the separation of murder into degrees did not "add any case to nor take any case from the class of crimes which, at common law, was denominated `murder,' for every act that was murder at common law was still murder in New Jersey." Id. Since the factors which distinguished first degree murder from second degree murder were not elements of a separate offense, the Due Process Clause did not require that they be alleged in the indictment. See id. at 657-58, 15 S.Ct. 727.

Hartman argues that Davis and Bergemann are not relevant here because, as a matter of North Carolina law, first and second degree murder are separate and distinct offenses. In support of this assertion, Hartman points to several decisions of the North Carolina Supreme Court describing first and second degree murder as "offenses." See, e.g., State v. Gainey, 343 N.C. 79, 468 S.E.2d 227, 230 (1996) (characterizing second degree murder as "lesser-included offense" of first degree murder); State v. Warren, 327 N.C. 364, 395 S.E.2d 116, 120 (1990) (same); State v. Young, 324 N.C. 489, 380 S.E.2d 94, 96 (N.C.1989) (concluding that failure to instruct on voluntary manslaughter as alternative to second degree murder was harmless because jury convicted defendant "of the greater crime of murder in the first degree"); State v. Davis, 305 N.C. 400, 290 S.E.2d 574, 589 (1982) (referring to "murder in the first degree" as an "offense"). These cases will not bear the weight Hartman would place on them, however. Passing references to the "offenses" of first and second degree murder are of little assistance in determining whether first and second degree murder are distinct crimes under North Carolina law.

Other North Carolina cases provide substantially more guidance. First, decisions issued in the years immediately following the passage of the 1893 law indicate that the intent of the North Carolina legislature was to follow the example of Pennsylvania in dividing the single, common law crime of murder into two degrees without creating any new offense. For example, in State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894), "the very first case involving a construction of the late act defining what constitutes murder in the first and second degrees," id. at 801, the North Carolina Supreme Court noted that the North Carolina legislature adopted Pennsylvania law almost verbatim, see id. at 801-02, for the purpose of "classify[ing] cases which before fell within the definition of murder, and to subject to the death penalty only the more heinous offenders," id. at 801. Importantly, the Fuller court explicitly stated that its interpretation of the act was in accord with that of Pennsylvania and states adopting the Pennsylvania statute:

As far as we can ascertain, every other state had previously divided the common-law kind of murder into two classes. The theory upon which this change has been made is that the law will always be executed more faithfully when it is in accord with an enlightened idea of justice. Public sentiment has revolted at the thought of placing on a level in the courts one who is provoked by insulting words (not deemed by the common law as any provocation whatever) to kill another with a deadly weapon, with him who waylays and shoots another in order to rob him of his money, or poisons him to gratify an old grudge.... Elsewhere the courts have generally followed the lead of Pennsylvania, and we, too, have adopted the interpretation given by her courts to the law which our legislature has borrowed from her statutes.

Id. at 802. As noted in Davis v. Territory of Utah, the Pennsylvania courts, and states following their lead, uniformly interpreted the statute dividing murder into degrees not as creating two new crimes, but rather as dividing the single, common law crime of murder into two categories so that the punishment would better fit the particular crime. See Davis, 151 U.S. at 268, 14 S.Ct. 328.

The North Carolina Supreme Court made an even clearer statement in State v. Davis, on which Hartman relies for the proposition that first degree murder and second degree murder are distinct offenses:

Prior to 1893 any intentional and unlawful killing of a human being with malice aforethought, express or implied, constituted murder punishable by death. In 1893 the General Assembly adopted 1893 N.C. Pub. Laws ch. 85, the terms of which are now embodied in G.S. 14-17, dividing murder into two degrees. From that day to the present, this statute has not given any new definition of murder, but permits that to remain as it was at common law. The statute merely selects from all murders denounced by common law those deemed most heinous by reason of the mode of their perpetration and classifies them as murder in the first degree, for which a greater punishment is prescribed.

Davis, 290 S.E.2d at 588 (emphasis added) (citations omitted); see State v. Streeton, 231 N.C. 301, 56 S.E.2d 649, 652 (1949) (noting that "the statute ... dividing murder into two degrees ... does not give any new definition of murder, but permits that to remain as it was at common law").

In view of these authorities, it is abundantly clear that under North Carolina law, there is only one common law crime of murder, which by statute is divided into two degrees. Accordingly, just as in Davis v. Territory of Utah and Bergemann, a short-form indictment that alleges the elements of common law murder is sufficient to satisfy the demands of the Sixth and Fourteenth Amendments.6 We therefore conclude that the decision of the North Carolina Supreme Court rejecting Hartman's challenge to his indictment was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.

For the reasons set forth above, we affirm the denial of habeas relief.

AFFIRMED.

*****

1

Hartman named R.C. Lee, Warden of Central Prison, as Respondent in his position. For ease of reference, we refer to Lee as "the State" throughout this opinion

2

Hartman also maintains that, underApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the State violated his constitutional rights by failing to allege an aggravating circumstance authorizing imposition of the death penalty in the indictment. Hartman acknowledges, however, that this argument is foreclosed by the recent holding of the Fourth Circuit that Apprendi and Jones state a new rule of constitutional law that cannot be applied retroactively to cases on collateral review, see United States v. Sanders, 247 F.3d 139, 151 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001), and asserts that he raises the issue only as a means of preserving it for further review by the United States Supreme Court. Accordingly, we do not address it further.

3

We note that Hartman's claim is entirely formalistic in nature. He does not contend, nor could he, that he did not receiveactual notice that the State sought to convict him of first degree murder.

Hartman also maintains that a murder indictment must "notify a defendant about which of several theories of first-degree murder the prosecution might pursue." Br. of Appellant at 23. However, the Constitution does not require the method by which the crime was committed to be alleged in the indictment. See Martin v. Kassulke, 970 F.2d 1539, 1543 (6th Cir.1992) (holding that Due Process Clause did not entitle rape defendant to indictment specifying whether first degree rape was committed by force or through victim's physical helplessness).

4

Hartman also cites a number of cases concerning the adequacy of federal indictments. Of course, because the Fifth Amendment requirement of indictment by grand jury does not apply to the states,see Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), "federal cases involving indictments are of little value when evaluating the sufficiency ... of a state accusatory pleading," Wilson v. Lindler, 995 F.2d 1256, 1264 (4th Cir.) (Widener, J., dissenting), adopted, 8 F.3d 173, 175 (4th Cir.1993) (en banc) (per curiam); see Wilson, 995 F.2d at 1264 n. 6.

Although Hartman forswears reliance on Jones and Apprendi, he asserts that "[i]f those decisions were to apply retroactively ..., they would support [his] position." Br. of Appellant at 7. However, even if Jones and Apprendi applied to cases on collateral review, they would not assist us in determining whether the decision of the state court was entitled to deference under § 2254(d)(1), because those cases were decided long after the ruling of the North Carolina Supreme Court. See Williams, 529 U.S. at 412, 120 S.Ct. 1495 (explaining that, in applying standard of § 2254(d)(1), a federal habeas court may only consider the holdings of the Supreme Court as they existed at the time of the state court ruling); see also Boss v. Pierce, 263 F.3d 734, 739 (7th Cir.2001) ("[I]n order to grant habeas corpus relief under section 2254(d)(1), a federal court must be able to point to the holding of a Supreme Court decision handed down before the state courts issued the decision under review.").

5

In this vein, we note we have found several cases in which deficient indictments were held not to violate the Sixth and Fourteenth Amendments when the defendant received actual notice of the charges against himSee Stephens v. Borg, 59 F.3d 932, 934-36 (9th Cir.1995) (holding that failure of indictment to charge felony murder did not violate Constitution when defendant "had five days of actual notice of the prosecution's intent to rely on a felony-murder theory" prior to closing argument); Wilson, 995 F.2d at 1264 (concluding that constructive amendment of indictment did not violate habeas petitioner's Sixth Amendment right when he received actual notice of prosecution's theory of case "at least before the jury was sworn, and almost certainly weeks before"); Hulstine v. Morris, 819 F.2d 861, 863-64 (8th Cir.1987) (holding that "[d]ue process requirements may be satisfied if a defendant receives actual notice of the charges against him, even if the indictment or information is deficient"; concluding that defective indictment did not violate defendant's Sixth Amendment right because defendant was made fully aware of charges and potential punishment during guilty plea proceedings); see also Fawcett, 962 F.2d at 618 (concluding that defective state charging document does not violate due process unless "inadequate notice [leads] to a trial with an unacceptable risk of convicting the innocent").

6

It is true that in several instances the North Carolina Supreme Court has used the term "elements" to refer to those factors that distinguish first degree murder from second degree murderSee, e.g., Fuller, 19 S.E. at 802 (noting that "premeditation and deliberation... are essential elements of the higher crime"). In particular, Hartman points to State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339, 350 (1983) (stating that "[t]he Legislature may prescribe a form of indictment sufficient to allege an offense even though not all of the elements of a particular crime are required to be alleged," and citing N.C. Gen.Stat. § 15-144 as an example), and State v. Lowe, 295 N.C. 596, 247 S.E.2d 878, 882-83 (1978) (characterizing premeditation as an "element" of first degree murder, stating that premeditation need not be alleged in an indictment for first degree murder, and concluding that previous cases "implicitly affirm[ed] the power of the legislature to relieve the State of the common law requirement that every element of the offense be alleged"). The fact that the North Carolina courts have used the term "elements," rather than some other word, to describe those factors distinguishing first and second degree murder does not, in the face of the specific statements in Fuller and Davis, persuade us that the division of murder into degrees abolished the common law crime of murder.

Our conclusion that there is but one offense of common law murder in North Carolina is also fatal to Hartman's claim that subject matter jurisdiction is not established unless all the elements of a crime are alleged in the charging document.



Edward Ernest Hartman

 

 

 
 
 
 
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