State v. Hill

Justice MEYER

dissenting.

I concur in all respects with the dissenting opinion by Justice Mitchell but wish to add the following:

The United States Constitution does not require a comparative proportionality review. Pulley v. Harris, — U.S. —, 79 L.Ed. 2d 29 (1984). The requirement of a formal proportionality *482 review was imposed by our Legislature in the adoption of G.S. § 15A-2000(b)(2). It has become a prime feature in the appellate review of every death case, imposing a grave responsibility upon this Court which rightfully demands the expenditure of substantial effort and time in each such case. We do not treat this obligation lightly. Each case presents anew the consideration of which cases in the pool are “similar” considering both the crime and the defendant.

The majority correctly recognizes that since the enactment of G.S. § 15A-2000, in only two cases has a jury been called upon to consider imposing the death penalty for the murder of a law enforcement officer while engaged in the performance of his duties. Equally true is that in State v. Hutchins, 303 N.C. 321 , 279 S.E. 2d 788 (1981), two additional aggravating factors were found: that the murder was committed to avoid or prevent arrest, and that the murder was part of a course of conduct involving crimes or violence against others. We affirmed the death sentence in Hutch-ins. As discussed below, I believe that the majority places undue emphasis on the fact that in Hutchins the jury found more than one aggravating factor and I therefore find that the present case is comparable to Hutchins .

State v. Abdullah, 309 N.C. 63 , 306 S.E. 2d 100 (1983), the second case involving the murder of a police officer, is clearly distinguishable. Abdullah came to this Court as a life sentence case and there were no death sentence issues involved. In Abdullah the jury answered the issue of whether the aggravating factors were sufficient to call for the imposition of the death penalty “No” and recommended a life sentence. In Abdullah three codefendants who testified against Abdullah were allowed to enter pleas and later received prison sentences of no more than fifteen years and all were recommended for work release. The fact that the codefendants would not receive the death penalty was made known to the Abdullah jury. One of the issues at trial and brought forward on appeal in Abdullah concerned the credibility of the three codefendants in light of their agreement to testify in exchange for sentence concessions. See State v. Abdullah, 309 N.C. at 72-73 , 306 S.E. 2d at 105-106 . The fact that the three codefendants would not receive the death penalty was further emphasized to the jury through an additional mitigating factor which was added by handwriting on the jury form as No. XIV *483 in this language: “Will three co-defendants or accomplices in the crimes for which the defendant has been convicted avoid the death penalty?” In my view this was a completely improper circumstance to be included on the jury form and, had the jury form been before this Court on the direct appeal, I believe this Court would have so found. While the jury failed to answer that issue, I believe it necessarily strongly influenced the jury’s decision to recommend a life sentence. I consider Abdullah an aberration brought about by the peculiar circumstances of that case.

Because we have no case “on point,” against which to measure this case, the majority turns to the other cases in the “pool” to determine whether the death sentence in this case is proportionate. In so doing the majority imposes a standard that is neither required under the statute, nor appropriate under the circumstances.

Many of the cases in the “pool,” as the majority points out, involve brutal, atrocious murders in which the victims were tortured, the bodies were mutilated, and the victims clearly underwent unnecessary physical pain and psychological suffering. Surely the majority does not intend to suggest that this sentence is disproportionate because the murder did not meet the single aggravating circumstance of being “heinous, atrocious or cruel.”

Also in the “pool” are murders in which more than one aggravating factor was found. Surely the majority does not intend to hold that unless more than one aggravating factor was found, the penalty of death is not appropriate.

The statute does not require that the murder be gruesome or brutal in order to justify a penalty of death. The statute does not require that the jury find more than one aggravating factor in order to justify the penalty of death. The statute requires that the jury find only one statutory aggravating factor, that the mitigating factor or factors not outweigh the aggravating factor, and that the aggravating factor, considering the mitigating factor or factors, be sufficiently substantial to call for the penalty of death. This the jury did.

Rather than placing undue emphasis on the excessive brutality of some of our capital cases, or engaging in a numerical counting of aggravating factors, I would consider, as we did in State v. *484 Oliver II, 309 N.C. 326 , 307 S.E. 2d 304 (1983) and State v. Maynard, 311 N.C. 1 , 316 S.E. 2d 197 (1984), the policies underlying our capital sentencing scheme and the impact of today’s decision upon the effectiveness of our criminal justice system. In Oliver II we did not attempt to engage in a futile comparison of all unrelated cases in the “pool.” We had earlier affirmed the sentence of death in State v. Williams, 305 N.C. 656 , 292 S.E. 2d 243 (1982), also an armed robbery case, and we simply reiterated that the sentence of death is not excessive or disproportionate when the motive for the murder is witness elimination.

Of even more significance is our recent holding in State v. Maynard, 311 N.C. 1 , 316 S.E. 2d 197 (1984). There we noted that “the present case represents the first in North Carolina in which a potential witness, pursuant to a plea arrangement, had agreed to testify against the defendant at trial and was murdered solely for the purpose of preventing his testimony.” Id. at 35 , 316 S.E. 2d at 216 . Rather than attempting to compare Maynard with other cases, totally unrelated on their facts, we again focused on the targeted victim, the motive for the killing, and important policy considerations. In this regard, we cited to other witness elimination cases [Oliver II and State v. Barfield, 298 N.C. 306 , 259 S.E. 2d 510 (1979)]. These cases, while in most respects distinguishable from Maynard , as the present case is in some respects distinguishable from Hutchins , nevertheless shared the common thread of witness elimination as the motive for the murder. In Maynard we noted that “both Congress and our State legislature have recently recognized the serious consequences to the effective administration of our criminal justice system in the continuing efforts of those charged with crimes to threaten or intimidate witnesses.” Id. at 35 , 316 S.E. 2d at 216 , and we upheld Maynard’s sentence of death “[b]ased upon compelling policies which encourage witnesses to testify in criminal trials without fear. . . .” Id. at 36 , 316 S.E. 2d at 216 .

Here, the victim was Officer Enevold, a young police officer murdered while he was engaged in the performance of his duties. As Justice Mitchell has succinctly stated in his dissenting opinion, “[t]he murder of a law enforcement officer engaged in the performance of his duties in the truest sense strikes a blow at the entire public—the body politic—and is a direct attack upon the *485 rule of law which must prevail if our society as we know it is to survive.” Surely the same policy considerations upon which we based our decision in Oliver and Maynard apply with equal force to this case. In the absence of compelling circumstances which would militate against a sentence of death when the victim is a police officer (and here I find none), this Court should recognize, as it has done previously in Hutchins, Oliver, and Maynard , that the effective administration of justice requires that some murders must indeed be treated as different “in kind and not merely in degree from other murders.” See Mitchell, J., dissenting.

Finally, I feel compelled to clarify certain facts regarding this murder which leave no doubt that the jury’s decision to impose a sentence of death was surely appropriate under the circumstances.

The evidence presented in this case tends to show that on the fateful morning of Sunday, 22 November 1981, at approximately 4:48 a.m., Officer Enevold radioed the Hendersonville Police Department dispatcher that he was at the intersection of Ash and Woodcock Streets, and that he was “with a suspicious car . . . reference to circling the block.” Officer Enevold reported he was with the driver but had not obtained the driver’s identification yet. The “suspicious car” was parked at the gate to Southern Burglar Alarm, a business on Ash Street, across from the residence of Daniel Gilliam and his family.

According to Gilliam, an eyewitness, he observed Officer Enevold out of the police car, shining a flashlight into the driver’s window of the suspicious car, when a man, identified at trial by circumstantial evidence as defendant, suddenly approached from the direction of Southern Burglar Alarm, apparently by climbing over the fence. When Officer Enevold spoke to him, defendant stopped at the curb about ten feet away, and then began to run. Officer Enevold said something to him again, but defendant kept running. Officer Enevold then gave chase and tackled defendant near the middle of the intersection.

After Officer Enevold tackled defendant, they struggled in the street for a few minutes. Defendant somehow managed to obtain Officer Enevold’s .38 caliber Smith and Wesson service revolver, and stood up looking down on the officer. According to Gilliam, Officer Enevold was lying on the ground with his hands *486 raised, apparently attempting to hold onto defendant’s waist. Defendant then said something like, “Let me go,” and Gilliam heard a gunshot.

Ricky Edwards, another eyewitness, testified that he saw defendant get up from the struggle and stand over Officer Enevold, pointing a gun at the officer. Officer Enevold was kneeling on one knee when Edwards saw the flash of a gunshot. Officer Enevold then fell to the ground, mortally wounded by his own service revolver.

After defendant shot the officer, he turned and pointed the gun at Edwards, who was approximately 150 to 200 feet away. Edwards stopped, put his car in reverse and backed up to the 7th Avenue intersection, where he told Officer Paul Kraus that an officer had been shot. As Officer Kraus and Edwards started toward the intersection of Ash and Woodcock, defendant sped past them in the automobile Officer Enevold had been investigating.

Officer Kraus found his fellow officer lying face down in a pool of blood.

An autopsy showed that Officer Enevold died as a result of a gunshot wound to his left cheek, just below the left eye. There were extensive powder burns on his face from the nose to the ear. The bullet was recovered from the base of Officer Enevold’s neck, and the path of the bullet was slightly downward.

This evidence is sufficient to support reasonable inferences that: (1) Officer Enevold was on duty and was investigating a “suspicious car” when defendant suddenly appeared, apparently having climbed over the fence of a nearby business. (2) Officer Enevold ordered defendant to halt. However, defendant ran, trying to elude the officer. Officer Enevold again said something to defendant, but defendant continued running. (3) Defendant was trying to avoid apprehension and arrest when he ran from the scene. (4) Without escalating the confrontation by drawing his revolver or firing a warning shot to halt, Officer Enevold chased and tackled defendant in the middle of the intersection. (5) Officer Enevold was engaged in the performance of his official duty and himself did nothing to provoke the shooting. (6) During the struggle, defendant obtained Officer Enevold’s service revolver, stood *487 up, and pointed it at the officer’s face. (7) Officer Enevold was unarmed and defenseless under the circumstances. When Officer Enevold was shot, defendant had gained a superior position and advantage over the officer. He was standing, pointing the service revolver at the unarmed officer. For all intents and purposes, the struggle between defendant and the officer had ended. At that point in time, defendant literally held the officer’s life or death in his hands, and chose to take it so he could escape. (8) Officer Enevold was shot by defendant at close range, while the officer was on the ground, apparently kneeling on one knee, and with his hands on or around defendant’s waist; because of the location of the wound and downward path of the bullet, Officer Enevold must have been facing defendant and looking up into the barrel of his own service revolver, aware but helpless to prevent his impending death. (9) Without any signs of a struggle over the weapon or accidental shooting, defendant applied the necessary pressure on the trigger to discharge the revolver slightly downward into Officer Enevold’s face. (10) Defendant shot Officer Enevold after demanding that the officer let him go, and in order to effectuate his escape. (11) Defendant then turned and pointed the revolver at Ricky Edwards, an eyewitness. (12) Defendant himself offered no assistance to the mortally wounded officer, and fled the scene without notifying the police or calling for medical attention.

Upon the foregoing facts and the reasonable inferences which may be drawn therefrom, I fail to see how the majority can overturn the death penalty imposed by the jury for the reason that the sentence is excessive and disproportionate. It clearly is not.

I would vote to affirm both the finding of guilt and the sentence of death.

Justices MITCHELL and Martin join in this dissenting opinion.