State v. Chandler

Justice Orr

dissenting.

I respectfully dissent from the majority opinion on two grounds. First, the trial court erred in submitting the (e)(6) aggravating circumstance — that the capital felony was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6) (Supp. 1995) — and second, the death sentence is disproportionate.

In 1977, the North Carolina General Assembly passed a new capital punishment statute, N.C.G.S. § 15A-2000, modeled in large part on the American Law Institute’s Model Penal Code § 210.6. See State v. Johnson, 298 N.C. 47, 56-63 , 257 S.E.2d 597, 606-10 (1979) (reviewing the history leading to the enactment of N.C.G.S. § 15A-2000). Under this new legislation, a defendant convicted of a capital felony is subjected to a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. N.C.G.S. § 15A-2000(a)(1). The heart of the death penalty statute is the requirement that a death sentence cannot be imposed absent a finding of at least one aggravating circumstance of the eleven possible aggravating circumstances set out in the statute. N.C.G.S. § 15A-2000(d)(2); see Geoffrey Carlyle Mangum, Comment, Vague *765 and Overlapping Guidelines: A Study of North Carolina’s Capital Sentencing Statute, 16 Wake Forest L. Rev. 765 , 777 (1980).

Generally, the critical function of aggravating circumstances in any capital punishment scheme is to identify those circumstances that distinguish killings resulting in first-degree murder convictions warranting the punishment of death from those that do not. See Lowenfield v. Phelps, 484 U.S. 231, 244 , 98 L. Ed. 2d 568, 581-82 (1988) (“The use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion.”); Gregg v. Georgia, 428 U.S. 153, 197-98 , 49 L. Ed. 2d 859, 888 (1976) (The aggravating circumstances require the jury to. consider “the circumstances of the crime or the character of the defendant” before it recommends sentence.). Thus, an “aggravating circumstance” is just that — “a fact or group of facts which tend to make a specific murder particularly deserving of the death penalty.” N.C.P.I. — Crim. 150.10 (1995); see State v. Hutchins, 303 N.C. 321, 351 , 279 S.E.2d 788, 806 (1981); Black’s Law Dictionary 60 (rev. 5th ed. 1979) (defining “aggravation” as “[a]ny circumstance attending the commission of a crime . . . which increases its guilt or enormity ..., but which is above and beyond the essential constituents of the crime”). The eleven aggravating circumstances listed in N.C.G.S. § 15A-2000(e) fit neatly within that concept:

(1) The capital felony was committed by a person lawfully incarcerated.

(2) The defendant had been previously convicted of another capital felony or had been previously adjudicated delinquent in a juvenile proceeding for committing an offense that would be a capital felony if committed by an adult.

(3) The defendant had been previously convicted of a felony involving the use or threat of violence to the person or had been previously adjudicated delinquent in a juvenile proceeding for committing an offense that would be a Class A, Bl, B2, C, D, or E felony involving the use or threat of violence to the person if the offense had been committed by an adult.

(4) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

*766 (5) The capital felony was committed while the defendant was engaged, or was an aider or abettor, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any homicide, robbery, rape or a sex offense, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(6) The capital felony was committed for pecuniary gain.

(7) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(8) The capital felony was committed against a law-enforcement officer, employee of the Department of Correction, jailer, fireman, judge or justice, former judge or justice, prosecutor or former prosecutor, juror or former juror, or witness or former witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duty.

(9) The capital felony was especially heinous, atrocious, or cruel.

(10) The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives' of more than one person.

(11) The murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.

N.C.G.S. § 15A-2000(e).

In the interpretation and construction of statutes, it is the responsibility of the reviewing court to attempt to determine the legislative intent. See State v. Lucas, 302 N.C. 342, 345 , 275 S.E.2d 433, 435 (1981). The Fair Sentencing Act, enacted in 1979, was amended in 1981 and contained an aggravating factor that “[t]he offense was committed for hire or pecuniary gain.” N.C.G.S. § 15A-1340.4(1)(c) (Supp. 1981). In 1983, the legislature again amended N.C.G.S. § 15A-1340.4(a)(1)(c), Act of Oct. 1, 1983, ch. 70, secs. 1-2, 1983 N.C. *767 Sess. Laws 43 (entitled “An Act To Clarify The Aggravating Factor Regarding Pecuniary Gain Under The Fair Sentencing Act”) (emphasis added), “clarifying” the aggravating factor “that the offense was committed for hire or pecuniary gain” and stated that it meant “defendant was hired or paid to commit the crime.” N.C.G.S. § 15A-1340.4(a)(1)(c) (emphasis added); see State v. Abdullah, 309 N.C. 63, 76 , 306 S.E.2d 100, 108 (1983); State v. Thompson, 64 N.C. App. 354, 355 , 307 S.E.2d 397, 398 (1983); State v. Thompson, 62 N.C. App. 585, 586 , 303 S.E.2d 85, 86 (1983); see also State v. Thompson, 60 N.C. App. 679, 684 , 300 S.E.2d 29, 32 (held error to submit (a)(1)(c) aggravating factor when only evidence of pecuniary gain was that the defendant broke into the building with the intention of taking copper), modified and aff’d, 309 N.C. 421 , 307 S.E.2d 156 (1983). Thus, in my opinion, the 1983 amendment to paragraph (a)(1)(c) of the Fair Sentencing Act clarifying the scope of “pecuniary gain” evinces the legislature’s intent to avoid enhancement of a sentence simply because money or other valuable items are involved in the crime. However, this Court in State v. Gardner, 311 N.C. 489, 513 , 319 S.E.2d 591, 606 (1984), cert. denied, 469 U.S. 1230 , 84 L. Ed. 2d 369 (1985), relying on an earlier interpretation in State v. Oliver, 302 N.C. 28 , 274 S.E.2d 183 (1981), of the (e)(6) aggravating circumstance rejected the argument that, in the capital punishment statute, “for pecuniary gain” meant that a defendant had to be hired or paid to commit the murder. The Court based its decision in part on the fact that the legislature had failed to “clarify” the capital punishment statute and had only done so on the “pecuniary gain” aggravating factor under the Fair Sentencing Act.

Having rejected in Gardner what would appear to be a logical limitation of the (e)(6) aggravating circumstance, this Court has over the years broadened the circumstances under which the (e)(6) aggravating circumstance is deemed correctly applied. In State v. Jennings, this Court said:

The gravamen of the pecuniary gain aggravating circumstance is that “the killing was for the purpose of getting money or something of value.” [Gardner, 311 N.C. at 513 , 319 S.E.2d at 606 ]; see also [Oliver, 302 N.C. at 62 , 274 S.E.2d at 204 ](“[t]he hope of pecuniary gain provided the impetus for the murder”). This financial motivation or impetus “aggravates” the murder, distinguishing the murder from other murders as being more egregious and therefore more worthy of the extreme sanction of death.

*768 State v. Jennings, 333 N.C. 579, 621-22 , 430 S.E.2d 188, 210 , cert. denied, - U.S. -, 126 L. Ed. 2d 602 (1993). As noted in Oliver , the pecuniary gain aggravating circumstance “examines the motive of the defendant rather than his acts.” Oliver, 302 N.C. at 62 , 274 S.E.2d at 204 (emphasis added).

Although well aware of the necessity to follow precedent even when disagreeing with the earlier reasoning of the Court, the majority opinion now broadens even further the interpretation and application of the (e)(6) “pecuniary gain” aggravating circumstance. As such, I find the application is neither supported by case law nor a sound extension of the purpose of aggravating circumstances.

In reviewing the evidence in this case, the sum total of all the evidence relating to pecuniary gain is (1) that defendant broke into Mrs. Poore’s house seeking to steal marijuana, and (2) that a fellow inmate and one of the investigating officers testified that defendant told them that before leaving the house after the murder, defendant “looked for” Mrs. Poore’s pocketbook but never saw it. I note that the statement in the majority opinion that defendant “was going to steal Mrs. Poore’s purse, but after he killed her, he could not find it” is not supported by the record. It is uncontradicted, however, that nothing was stolen by the defendant either before the murder or afterwards. With respect to the killing itself, the evidence is also uncontradicted that there was a surprise encounter between defendant and Mrs. Poore in the darkened house and that defendant turned in surprise and struck Mrs. Poore with one fatal blow of his hand to her head. It is particularly noteworthy that the jury did not convict defendant of premeditated and deliberate first-degree murder, indicating that the jury believed defendant’s testimony that he did not intend to kill Mrs. Poore. The jury instead convicted him under the felony murder theory, the underlying felony being the burglary of Mrs. Poore’s house.

If we are to rely on the test established in Oliver , then there must be some evidence that the motive for the killing was pecuniary gain. There simply is no such evidence in this case. While defendant clearly had a pecuniary gain motive for breaking into Mrs. Poore’s house, it is only unsupported speculation that the actual killing had anything to do with seeking pecuniary gain. The facts here are totally opposite from circumstances where, for example, a defendant is paid to commit murder, commits murder in order to collect insurance proceeds, or shoots a store clerk who refuses to open a cash register. Under *769 those types of circumstances, evidence clearly exists that the defendant’s motive for the killing was pecuniary gain.

Where the majority opinion now leaves the state of the law is that as long as there is some pecuniary gain motive present in the attendant circumstances surrounding a capital felony, a defendant, even one convicted of felony murder but not first-degree murder based on premeditation and deliberation, will be subject to the imposition of the death penalty. This extension of the application of the (e)(6) aggravating circumstance also directly relates to my disagreement with the majority’s finding of proportionality in this case. The following capital felony decisions rendered by this Court in 1995 alone, include defendants who were found guilty of first-degree murder based on premeditation and deliberation — many based on premeditation and deliberation and felony murder or involving murderous acts far more egregious than those found in the instant case — and yet were either:

(1) not tried capitally, State v. Holt, 342 N.C. 395 , 464 S.E.2d 672 (1995) (victim shot as he fled); State v. Pleasant, 342 N.C. 366 , 464 S.E.2d 284 (1995) (father dies from multiple gunshot wounds); State v. King, 342 N.C. 357 , 464 S.E.2d 288 (1995) (victim shot in the head for stealing drug money); State v. Gibson, 342 N.C. 142 , 463 S.E.2d 193 (1995) (victim died from multiple gunshot wounds during fight over his girlfriend); State v. Burke, 342 N.C. 113 , 463 S.E.2d 212 (1995) (victim died from multiple gunshot wounds); State v. Butler, 341 N.C. 686 , 462 S.E.2d 485 (1995) (victim stabbed to death in his home); State v. Goodson, 341 N.C. 619 , 461 S.E.2d 740 (1995) (wife killed by gunshot wound to the head); State v. Cannon, 341 N.C. 79 , 459 S.E.2d 238 (1995) (wife shot and killed during domestic dispute); State v. Wilson, 340 N.C. 720 , 459 S.E.2d 192 (1995) (teenage boy stabbed while sitting in his car); State v. Riddick, 340 N.C. 338 , 457 S.E.2d 728 (1995) (victim died from single gunshot wound to the neck); State v. White, 340 N.C. 264 , 457 S.E.2d 841 (mother kills four-year-old child by stuffing plastic bag down her throat), cert. denied, - U.S. -, 133 L. Ed. 2d 436 (1995); State v. Truesdale, 340 N.C. 229 , 456 S.E.2d 299 (1995) (victim died from multiple gunshot wounds from behind); State v. Solomon, 340 N.C. 212 , 456 S.E.2d 778 (victim died from multiple gunshot wounds), cert. denied, — U.S. —, 133 L. Ed. 2d 438 (1995); State v. Alford, 339 N.C. 562 , 453 S.E.2d 512 (1995) (victim shot in the head while sitting in his cousin’s car); State v. Allen, 339 N.C. 545 , 453 S.E.2d 150 (1995) (victim shot during argument); or

*770 (2) a jury declined to impose the death penalty, State v. Jahn, 342 N.C. 176 , 463 S.E.2d 204 (1995) (victim “pistol whipped” and then shot at point-blank range in the back of the neck); State v. McCray, 342 N.C. 123 , 463 S.E.2d 176 (1995) (victim died from multiple gunshot wounds); State v. Ratliff, 341 N.C. 610 , 461 S.E.2d 325 (1995) (victim died from three stab wounds in the chest); State v. Vick, 341 N.C. 569 , 461 S.E.2d 655 (1995) (two victims killed in their home by gunshots to the head); State v. Johnson, 341 N.C. 104 , 459 S.E.2d 246 (1995) (wife died from gunshot wounds inflicted while mother held victim in her arms); State v. Hinson, 341 N.C. 66 , 459 S.E.2d 261 (1995) (victim died from being shot with a crossbow in retaliation for defendant being cheated in a drug deal with a third party); State v. Hightower, 340 N.C. 735 , 459 S.E.2d 739 (1995) (pregnant girlfriend stabbed thirteen times); State v. Porter, 340 N.C. 320 , 457 S.E.2d 716 (1995) (defendant killed mother and two other victims by torching mother’s mobile home); State v. Jackson, 340 N.C. 301 , 457 S.E.2d 862 (1995) (victim shot during fight); State v. Leach, 340 N.C. 236 , 456 S.E.2d 785 (1995) (victim shot in the head while sitting in his car); State v. House, 340 N.C. 187 , 456 S.E.2d 292 (1995) (victim killed by being dragged behind his truck and then dumped in a creek); State v. Baity, 340 N.C. 65 , 455 S.E.2d 621 (1995) (victim killed from two gunshot wounds to the chest); State v. Johnson, 340 N.C. 32 , 455 S.E.2d 644 (1995) (grandparents killed by arson in conspiracy between granddaughter and her boyfriend); State v. Lovin, 339 N.C. 695 , 454 S.E.2d 229 (1995) (victim shot and stabbed to death in his home by acquaintance); or

(3) a jury was unable to decide on the death penalty, thus requiring the imposition of a mandatory life sentence by the trial court, State v. Lyons, 340 N.C. 646 , 459 S.E.2d 770 (1995) (police officer shot in the head while executing a search warrant for defendant’s apartment); State v. Knight, 340 N.C. 531 , 459 S.E.2d 481 (1995) (victim stabbed twenty-seven times and then castrated); State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789 (1995) (victim shot by hit man hired by the defendant when he opened his front door).

I also note that of the seven other cases decided in 1995 in which the defendants were convicted of felony murder but not first-degree murder based on premeditation and deliberation, six of the defendants were sentenced to a life sentence despite findings of several aggravating circumstances. E.g., State v. McNatt, 342 N.C. 173, 463 S.E.2d 76 (1995) (victim killed by blunt trauma as a result of being hit with the butt of a rifle and then kicked and beaten for five minutes *771 during robbery); State v. Lamb, 342 N.C. 151 , 463 S.E.2d 189 (1995) (victim killed by a single gunshot wound to the chest during robbery); State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492 (1995) (ex-girlfriend’s new boyfriend killed by gunshot while sitting in his car); State v. Grace, 341 N.C. 640 , 461 S.E.2d 330 (1995) (victim died of three gunshot wounds during robbery); State v. Thibodeaux, 341 N.C. 53 , 459 S.E.2d 501 (1995) (victim died from numerous gunshot wounds during robbery); State v. McCullers, 341 N.C. 19 , 460 S.E.2d 163 (1995) (victim killed with baseball bat during robbery). In State v. Powell, 340 N.C. 674 , 459 S.E.2d 219 (1995), cert. denied, - U.S. -, 133 L. Ed. 2d 688 (1996), the only robbery-felony murder case in which pecuniary gain was the sole aggravating circumstance found, the defendant was sentenced to death. However, the facts in Powell support a conclusion that the defendant’s motive for killing the victim was because he “wanted the money from the cash register.” Id. at 684 , 459 S.E.2d at 223.

With the exception of the last six cases involving felony murder, all of the cases noted involve defendants who were convicted of first-degree murder based, at least in part, on premeditation and deliberation. As indicated, none of these defendants will suffer the death penalty. Defendant, in this case, now faces execution as opposed to a life sentence solely because of the tenuous evidence involving “pecuniary gain.”

Mrs. Poore’s death is a tragedy, and the circumstances surrounding it are egregious and disturbing. However, in a capital punishment system that is supposed to be proportional and designed to “minimize the risk of wholly arbitrary and capricious action” in imposing the death penalty, Gregg, 428 U.S. at 189 , 49 L. Ed. 2d at 883 , quoted in Johnson, 298 N.C. at 59 , 257 S.E.2d at 607 , I believe that the majority’s decision in this case moves us perilously close to a constitutionally infirm application of the (e)(6) aggravating circumstance, and is also in error as to proportionality.

Because I believe that, in this case, the sole aggravating circumstance was improperly submitted and that the sentence imposed is disproportionate, the defendant should be resentenced and a life sentence imposed.