74 N.C. App. 760 | N.C. Ct. App. | 1985
Lead Opinion
At the outset, we observe that the trial judge failed to make findings in aggravation and mitigation for the kidnapping offenses, which were consolidated with the murder offenses for purposes of judgment. Since the trial judge imposed prison terms which exceeded the total of the presumptive terms of each consolidated felony, the statutory aggravating and mitigating factors must be considered for each offense. G.S. 15A-1340.4. In State v. Ahearn, 307 N.C. 584, 598, 300 S.E. 2d 689, 698 (1983), our Supreme Court held that:
[I]n every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must be treated separately, and separately supported by findings*765 tailored to the individual offense and applicable only to that offense.
On resentencing, which is necessary on account of the trial judge’s failure to find aggravating and mitigating factors for the kidnapping offenses, and for the error discussed below, the trial judge must follow the guidelines set forth in Ahearn and G.S. 15A-1340.4.
Both defendants argue that the trial court erred in finding, as a factor in aggravation, that the offense was especially heinous, atrocious or cruel. The trial judge found, for both defendants, that “the Defendant, acting in concert with another, precipitated and intended the killing of Lonnie Gamboa and aided and comprehended Lonnie Gamboa’s death by means of being thrown or pushed while alive into a mineshaft some 250 feet deep and the offense was especially heinous, atrocious or cruel.” The same finding was made as to both defendants for the killing of Forrester.
In State v. Blackwelder, 309 N.C. 410, 414, 306 S.E. 2d 783, 786 (1983), our Supreme Court held that in determining whether an offense was especially heinous, atrocious or cruel “the focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.” In Blackwelder there was evidence of numerous bruises and cuts on the victim’s body, and the victim had been shot twice. The first serious wound inflicted was a shotgun wound to the victim’s back, the second shotgun wound was a close range shot to the victim’s head. Bloodstains throughout the victim’s trailer indicated that the victim was wounded and bleeding for some time before the fatal second shot. The close range shotgun wound blew the victim’s head open; the court described the crime scene as “a ghoulish, bloody nightmare.” The court observed that it was not inappropriate to measure the brutality of the crime by the extent of the physical mutilation of the victim’s body. The excessive brutality of the murder, and the fact that the victim suffered for some time after the first shot, led the court to hold that the trial judge properly found as an aggravating factor that the murder was especially heinous, atrocious and cruel. For other recent murder cases where this aggravating factor has been held properly found, see State v. Payne, 311 N.C. 291, 316 S.E. 2d 64 (1984) (victim, who
In the instant case we find that the State failed to show by the preponderance of the evidence excessive brutality, physical pain or psychological suffering not normally present in a second degree murder. The State’s evidence tended to show that Gamboa was blindfolded and told he was going to walk through a fence and down an embankment. Vines pushed Gamboa through the fence and into the mine shaft. Gamboa’s foot caught on a root, Vines pulled Gamboa back up, and then pushed him back into the mine shaft. According to Asheville Police Officer Ross Robinson, the autopsy report stated that both Gamboa and Forrester were alive at time of impact and took one and a half or two breaths before dying. The only evidence presented as to the facts surrounding Forrester’s death was Robinson’s testimony that defendant Hattaway told Vines, after Vines pushed Gamboa into the mine shaft, that “he had to fight the son-of-a-bitch he put in the mine a couple of weeks ago.” Presumably defendant Hattaway was referring to Forrester’s death. This evidence fails to reach the standard set forth in Blackwelder, and the trial judge’s finding that the murders were especially heinous, atrocious or cruel was improper.
Vacated and remanded for resentencing.
Dissenting Opinion
dissenting.
I dissent. As to each defendant the Court found aggravating and mitigating factors as to each murder charge. Each murder charge was then consolidated for sentencing with either one or two of the kidnapping charges to which the defendant had pled guilty. The sentence imposed in each case was within the statutory maximum for second degree murder. I believe the findings in
I also believe the evidence was sufficient to find in each murder case that the offense was especially heinous, atrocious, or cruel. In each case the defendants abducted the victim at gunpoint, at which time they blindfolded and bound him. They then drove him to the scene of the murders. In the case of Gamboa he was tied to a tree in midwinter while the victims discussed his fate. Each victim was forced to walk into a mine to the edge of a mineshaft. Each was then pushed into the mineshaft and fell to his death. During the period between his abductions and death each victim was left to anticipate the time, place and manner of his death. I have no trouble concluding from this that such psychological torture is not normally present in a second degree murder case. See State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983).
I vote to affirm.
Concurrence Opinion
concurring.
I have no hesitancy in remanding these cases because of the trial court’s failure to list separately the aggravating and mitigating factors for each offense as required by State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). And although I am loathe to remand on the “especially heinous, atrocious or cruel” issue, I nevertheless do so based on my analysis of the relevant case law. See State v. Ahearn; State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979); State v. Thompson, 66 N.C. App. 679, 312 S.E. 2d 212 (1984); and State v. Medlin, 62 N.C. App. 251, 302 S.E. 2d 483 (1983). These cases suggest that the Legislature, by using the word “especially,” indicated that there must be evidence that the brutality involved exceeded that normally present in other murders or assaults.
Were we to hold otherwise, recognizing, of course, that every murder is arguably heinous, atrocious or cruel, trial courts could, by way of example, automatically apply the “especially heinous, atrocious or cruel” aggravating factor to every defendant who strangles or drowns a struggling victim. Similar results would befall defendants who threaten their victims, or discuss the vie-
The facts in State v. Medlin and State v. Thompson are particularly compelling. In Medlin, the defendant, after arguing with his girlfriend, the victim, who had been driven to her mother’s home by another man,
dragged the victim from the house, and into the yard, trying to convince her to leave with him. She resisted and defendant hit her in the eye, stated to her, ‘If I can’t have you, ain’t nobody going to have you,’ and shot her five times with a .22 caliber pistol. The victim then heard defendant tell her daughter, T have killed your mother.’
As a result of the shooting, [the victim] sustained bullet wounds to the head, the ear, the neck, the chest, and the hand. . . . She was hospitalized for ten weeks and thought she might need future operations. At the time of the hearing, [the victim’s] face remained partially paralyzed, she could not hear out of one ear. . . .
62 N.C. App. at 251-2, 302 S.E. 2d at 484. This Court remanded the case because it was not “persuaded that the evidence in this case [reflected] the requirement of ‘excessive brutality,’ beyond that normally present in any assault with a deadly weapon with intent to kill inflicting serious injury. . . .” Id. at 254, 302 S.E. 2d at 485.
In State v. Thompson, this Court, specifically distinguishing State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983), remanded the case for resentencing even though the defendant twice told the victim prior to shooting him in the back that he, the defendant, intended to kill the victim.
Consistent with what I view to be the Legislative intent in drafting the “especially heinous, atrocious and cruel” language, I believe the trial court erred in finding, as a factor in aggravation, that the offenses were especially heinous, atrocious or cruel.
