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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
EdwardErnest
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.
EdwardErnestHartman appeals an
order of the district court denying his
petition for a writ of habeas corpus.1See 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.3But 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).4Edward 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.
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
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.
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).
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.").
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").
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.
