holding that the murder of three individuals was not psychologically torturous because the three victims were- shot in rapid succession; the “first three shots were sudden, without any warning or precipitating event[, and] [t]here was nothing preceding the first murder that would have evoked in the victims intense apprehension, fear, or anticipation of their deaths”'
How later courts described this case
- holding that the murder of three individuals was not psychologically torturous because the three victims were- shot in rapid succession; the “first three shots were sudden, without any warning or precipitating event[, and] [t]here was nothing preceding the first murder that would have evoked in the victims intense apprehension, fear, or anticipation of their deaths”'
- noting that “it is imperative that we continue to use a ‘consistent and narrow interpretation’ ” of the heinous, atrocious, or cruel aggravating circumstance in order to maintain its constitutionality and listing the following factors as indicative that an offense is “especially heinous, atrocious, or cruel”: (1) physical violence beyond that necessary to cause death; (2) appreciable suffering after the assault; and (3) psychological torture
- listing factors considered to be indicative of an offense that is "especially heinous, atrocious, or cruel," including: (1) physical violence beyond that necessary to cause death; (2) appreciable suffering after the assault; and (3) psychological torture
Written by the judges who cited it.
The opinion
Because I disagree with the majority's conclusion that the capital offense was not especially heinous, atrocious, or cruel when compared to other capital offenses, I must respectfully dissent. Based on the facts as presented by the majority, I would conclude that Norris inflicted psychological torture on Herbert and Clark because both were certainly aware of and feared their impending deaths. The majority concludes that the shootings occurred so quickly that any fear Herbert and Clark may have experienced would have been only momentary. However, Herbert had sufficient time to realize that he was about to be shot and apparently to reach for his own weapon before Norris grabbed his arm, told him to "take it like a man," and shot him. During that same time, Clark was awaiting his fate, and he was certainly aware that Norris would shoot him next. In fact, after he shot Herbert, Norris did reach across the table and shoot Clark.
Furthermore, there was also evidence that Norris shot Herbert a second time, even after he had incapacitated him. After shooting Clark, Norris walked back to the bar and spoke to Henson. However, Norris heard Herbert still breathing and said, "Wait a minute. I've got to go finish the job." Even though he had already inflicted what the coroner described as a "potentially lethal" gunshot wound to Herbert's head, which "would [have resulted] in rapid incapacitation," Norris went back and shot Herbert again. Henson testified that, after Norris and Carrier left the bar, he heard Herbert moaning and taking raspy breaths. Finally, medical testimony revealed that Herbert received medical treatment for the gunshot wounds and that he lived for 11 hours after the shootings.
Thus, under the facts of this case, the trial court correctly found that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses. After seeing Norris shoot Hooper, Herbert and Clark were certainly aware that their friend had just been shot and that they were about to be shot. In fact, while Clark watched, Herbert attempted to defend himself before Norris *Page 866
shot him. Moreover, even after incapacitating him, Norris shot Herbert a second time because he was still breathing. Certainly, these killings were unnecessarily torturous to Herbert and Clark. Therefore, I must respectfully disagree with the majority's conclusion that the trial court incorrectly found that the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses.