State v. Stokes

Justice MITCHELL

dissenting in part.

I respectfully dissent from that part of the decision of the majority vacating the sentence of death and sentencing the de *28 fendant to imprisonment for life. Otherwise, I concur in the result reached by the majority.

In this case, the jury found as an aggravating circumstance that the murder committed by the defendant was an especially heinous, atrocious or cruel murder in the first degree. We have previously discussed the phrase “especially heinous, atrocious, or cruel” used in N.C.G.S. § 15A-2000(e)(9) as follows:

Although every murder may be characterized as heinous, atrocious, and cruel, this aggravating factor is not to be applied in every first-degree murder case. The legislature specifically provided that this aggravating circumstance may be found only in cases in which the first-degree murder committed was especially heinous, especially atrocious, or especially cruel. N.C.G.S. § 15A-2000(e)(9). Therefore, a finding that this aggravating circumstance exists is permissible when the level of brutality involved exceeds that normally present in first-degree murder, State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), or when the first-degree murder in question was conscienceless, pitiless, or unnecessarily torturous to the victim. State v. Pinch, 306 N.C. 1 , 292 S.E. 2d 203 , cert. denied, 459 U.S. 1056 , 74 L.Ed. 2d 622 (1982), reh’g denied, 459 U.S. 1189 , 74 L.Ed. 2d 1031 (1983). We have also stated that this factor is appropriate when the killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder. State v. Stanley, 310 N.C. 332 , 312 S.E. 2d 393 (1984).

In State v. Oliver, 309 N.C. 326 , 307 S.E. 2d 304 (1983), we identified two types of murder as included in the category of murders which would warrant the submission of the especially heinous, atrocious, or cruel aggravating circumstance to the jury. One type involves killings which are physically agonizing for the victim or which were in some other way dehumanizing. The other type consists of those killings which are less violent, but involve the infliction of psychological torture, placing the victim in agony in his last moments, aware of, but helpless to prevent, impending death.

In determining whether the evidence is sufficient to support a finding of essential facts which would support a determination that a murder was ‘especially heinous, atrocious, or *29 cruel,’ the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Moose, 310 N.C. 482 , 313 S.E. 2d 507 (1984); State v. Stanley, 310 N.C. 332 , 312 S.E. 2d 393 (1984).

State v. Brown, 315 N.C. 40, 65-66 , 337 S.E. 2d 808, 826-27 (1985). Having so defined this aggravating factor, the majority’s view that the jury properly determined that the murder here was an especially heinous, atrocious or cruel murder in the first degree but also that the death sentence recommended by the jury was disproportionate seems to me to be almost inherently self-contradictory. The result simply defies reason and common sense.

If we are to have a death penalty — and our legislature has dictated that we shall — it would seem to me that the one situation in which it would certainly be applied would be a case involving an especially heinous, atrocious or cruel murder in the first degree. If the death penalty is not to be applied in such cases, when if ever may it be applied properly?

When exercising the statutory duty of proportionality review imposed uniquely upon this Court, we must bear in mind that:

In comparing ‘similar cases’ for purposes of proportionality review, we use as a pool for comparison purposes all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury’s failure to agree upon a sentencing recommendation within a reasonable period of time.

State v. Williams, 308 N.C. 47, 79 , 301 S.E. 2d 335, 355 , cert. denied, 464 U.S. 865 , 78 L.Ed. 2d 177 (1983). The pool, however, includes only those cases which this Court has found to be free of error in both phases of the trial. State v. Jackson, 309 N.C. 26, 45 , 305 S.E. 2d 703, 717 (1983).

A review of all cases forming the pool available for our proportionality review makes it clear that juries have recommended death sentences frequently in cases involving especially heinous, atrocious or cruel murders in the first degree. E.g., State v. Glad *30 den, 315 N.C. 348 , 340 S.E. 2d 673 (1986); State v. Brown, 315 N.C. 40 , 337 S.E. 2d 808 (1985); State v. Huffstetler, 312 N.C. 92 , 322 S.E. 2d 110 (1984); State v. Boyd, 311 N.C. 408, 319 S.E. 2d 189 (1984); State v. Maynard, 311 N.C. 1 , 316 S.E. 2d 197 (1984); State v. Craig and Anthony, 308 N.C. 446 , 302 S.E. 2d 740 (1983); State v. McDougall, 308 N.C. 1 , 301 S.E. 2d 308 (1983); State v. Williams, 308 N.C. 47 , 301 S.E. 2d 335 (1983); State v. Pinch, 306 N.C. 1 , 292 S.E. 2d 203 (1982); State v. Brown, 306 N.C. 151 , 293 S.E. 2d 569 (1982); State v. Smith, 305 N.C. 691 , 292 S.E. 2d 264 (1982); State v. Rook, 304 N.C. 201 , 283 S.E. 2d 732 (1981); State v. Martin, 303 N.C. 246 , 278 S.E. 2d 214 (1981); State v. Barfield, 298 N.C. 306 , 259 S.E. 2d 510 (1979). The majority points out that in other cases juries have recommended life imprisonment despite having found that the first degree murder in question was especially heinous, atrocious or cruel. North Carolina juries simply have not “consistently” recommended either life or death sentences in such cases. Cf. State v. Lawson, 310 N.C. 632, 648 , 314 S.E. 2d 493, 503 (1984) (discussing principles to be considered when juries have “consistently” been returning life sentences or death sentences in a particular type of case).

The fact that some juries act in a self-contradictory manner by recommending a life sentence in such cases, however, is of little relevance to the proper performance of proportionality review by this Court. The very reason for proportionality review by this Court is to reduce the number of inconsistent or inherently self-contradictory results in capital cases, not to introduce or compound such errors as the majority does here.

The majority’s reliance upon State v. Bondurant, 309 N.C. 674 , 309 S.E. 2d 170 (1983) is equally unpersuasive. We recognized there that the presence or absence of a particular factor is not necessarily controlling during our proportionality review. We specifically emphasized, however, that the fact situation before us in Bondurant was unique because: “In no other capital case among those in our proportionality pool did the defendant [as did Bondurant] express concern for the victim’s life or remorse for his action by attempting to secure immediate medical attention for the deceased.” Id. at 694 , 309 S.E. 2d at 182-83 . The evidence in the present case represents the opposite end of the spectrum, however, since it tends to show that the defendant Stokes took steps to insure that the victim would not receive any type of assistance.

*31 Even if the “similar cases” used for purposes of proportionality review are limited — as the majority has tended to do — to those cases in which the first degree murder conviction arose from an armed robbery and rested solely upon a felony murder theory, I would conclude that the death penalty recommended by the jury here was not disproportionate. As the majority points out, this Court has affirmed the death penalty in at least four such cases. State v. Gardner, 311 N.C. 489 , 319 S.E. 2d 591 , cert. denied, 469 U.S. 1230 , 84 L.Ed. 2d 369 (1985); State v. Oliver, 309 N.C. 326 , 307 S.E. 2d 304 (1983); State v. Craig and Anthony, 308 N.C. 446 , 302 S.E. 2d 740 , cert. denied, 464 U.S. 908 , 78 L.Ed. 2d 247 (1983); State v. Williams, 305 N.C. 656 , 292 S.E. 2d 243 , cert. denied, 459 U.S. 1056 , 74 L.Ed. 2d 622 (1982). However, I do not agree with the statement of the majority that those four killings “were considerably more aggravated than the one now before us.”

Here, unlike the situation in any of those four cases, the murder committed by the defendant is included in both types defined as “especially heinous, atrocious, or cruel” in Brown. 315 N.C. 40, 65-66 , 337 S.E. 2d 808, 826-27 . The murder committed in this case by Stokes was one of the first type described in Brown because it was extraordinarily “physically agonizing for the victim” and extraordinarily “dehumanizing.” Id. It was one of the second type described in Brown because it resulted in “placing the victim in agony in his last moments, aware of, but helpless to prevent, impending death.” Id.

After considering the evidence before it, the jury properly could have found — and during proportionality review, this Court must assume it did find — the following facts inter alia: Stokes and Murray beat the seventy-year-old victim Kuano A. Lehto on the head until a portion of his brain was visible and blood was gushing from his mouth. The victim was in excellent physical condition for his age, however, and he continued to attempt to arise from the pool of blood on the warehouse ramp. After Stokes took his share of the victim’s money, Stokes and Stokes alone took the keys to the victim’s car. He then drove it to another street where he left it abandoned. The evidence is contradictory as to whether Murray and Benbow rode in the car, but the uncontradicted evidence was that only Stokes actually took the car away and personally denied the victim its use.

*32 By his action Stokes insured that his elderly victim’s last hope of extricating himself from the horror he faced was removed. Even if Lehto was able to rise after Stokes finally left him to die alone, his only means of going for help had been taken from him by Stokes. The victim was left alone awaiting his impending death without hope. This obviously was extraordinarily “agonizing for the victim” and extraordinarily “dehumanizing.” State v. Brown, 315 N.C. at 65-66, 337 S.E. 2d at 826-27 . It is equally obvious that Stokes’ action in removing the victim’s last hope had the effect of “placing the victim in agony in his last moments [here hours], aware of but helpless to prevent, impending death.” Id.

None of the four armed robbery first degree murder cases in which this Court has affirmed the death penalty involved a victim left helpless to linger and die alone in a remote place in such a dehumanizing and torturous manner. In each of those cases in which we found the death penalty proper — Gardner, Oliver, Craig and Anthony, and Williams — the victims were killed quickly, cleanly and with little psychological torture by comparison to the way in which Stokes left Lehto to die after removing his last chance for survival. In all of those cases except Craig and Anthony , the victims were shot and died almost instantly. Even in Craig and Anthony , the victim’s suffering was not as prolonged as in this case. Although the victim there begged her two assailants not to kill her and was stabbed by them thirty-seven times, her period of terror and suffering was blessedly brief when compared to that inflicted upon this victim by Stokes when he left the dying victim attempting to rise from a pool of blood and removed the victim’s car.

Even if the pool of all “similar cases” is abandoned completely and improperly and comparison is made only to the case against Murray, who with Stokes beat Lehto, I do not accept the view that the death penalty against Stokes must be found disproportionate. After the two men had beaten Lehto until his brain was visible and blood was gushing from his mouth as he lay prostrate before them attempting to rise, Murray did nothing further to add to the dehumanizing and psychologically torturous nature of his death. The jury clearly could properly have believed on the evidence before it, however, that Stokes took the victim’s keys and drove his car away, thereby removing his last hope for sur *33 vival and leaving him to die a lingering and painful death alone. Stokes did not take the car for hope of gain. Instead, Stokes simply moved it to another street some distance from where the victim lay injured and left it abandoned. This additional torture of the victim by Stokes was entirely sufficient to provide a principled and rational basis for the jury in his case to recommend death, even though the jury in Murray’s case recommended that Murray be sentenced to life imprisonment. The majority has usurped the function of the jury in this regard and is simply wrong when it decides that Stokes and his accomplice Murray “committed the same crime in the same manner . . . .”

This case perhaps demonstrates that proportionality review results to a considerable extent in the substitution of this Court’s view of the most desirable sentence to impose for that of the jury. See generally, e.g., Rosen, The “Especially Heinous” Aggravating Circumstance in Capital Cases — The Standardless Standard, 64 N.C. L. Rev. 941 (1986). The majority in the present case states, for example, that: “There is little, if any, evidence of a premeditated killing.” The jury, upon finding that Stokes took a club to the scene of the crime and literally beat the victim’s brains out before robbing him, apparently felt that there was more than a little evidence of a premeditated killing. Under our system giving this Court the duty to conduct proportionality review, the view of the majority of this Court prevails over that of the jury as to what the evidence actually establishes in this regard.

Given the statutory provisions enacted for capital sentencing in North Carolina, the type of “proportionality review” conducted here by this Court is not required by the Constitution of the United States. Pulley v. Harris, 465 U.S. 37 , 79 L.Ed. 2d 29 (1984). The inconsistency introduced into capital sentencing by this Court’s proportionality review is exemplified by this and similar cases. This situation should lead our General Assembly to consider removing the heavy burden of proportionality review which it has chosen to place upon this Court solely by statute. The General Assembly is free to do so. Id.

Two juries now have recommended that the defendant Stokes receive a sentence of death. Accordingly, two Superior Court Judges, in compliance with the law of North Carolina and *34 their oaths of office, have sentenced him to death. Contrary to the view of the majority, I conclude that the sentence of death was entered properly in the present case and was proportionate.'

For the foregoing reasons, I respectfully dissent from that part of the decision of the majority vacating the sentence of death and sentencing the defendant to imprisonment for life.

Justice Webb joins in this dissenting opinion.