State v. Miller

PARKER, Judge.

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 *765tailored 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 *766was sixty-eight years old, was severely beaten and suffered extreme pain due to his extensive injuries for two and one half months before his death); and State v. Watson, 311 N.C. 252, 316 S.E. 2d 293 (1984) (victim, defendant’s wife, was shot ten times and, before she died, she managed to move from room to room in the house leaving a trail of blood behind her).

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.

Judge Webb dissents. Judge Becton concurs in the result.