dissenting in part.
I cannot find as a matter of law that the evidence in this case is insufficient to submit the issue of whether the killing was especially heinous, atrocious, or cruel to the jury. Therefore, I must dissent from the majority’s holding with respect to this issue. I concur in the majority’s opinion with respect to the guilt or innocence phase of the trial.
The question before us is whether, as a matter of law, there is sufficient evidence to submit the issue to the jury for its determination. In making this decision, we must view the evidence in the light most favorable to the state, discrepancies and contradictions are disregarded, the state’s evidence is taken as true, and the state is entitled to every inference of fact that may be reasonably deduced therefrom. State v. Lester, 294 N.C. 220, 240 S.E. 2d 391 (1978); State v. Witherspoon, 293 N.C. 321, 237 S.E. 2d 822 (1977). The defendant’s evidence, unless favorable to the state, is not to be considered in deciding the question. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982). If there is substantial evidence of each element of the issue under consideration, the issue must be submitted to the jury for its determination. State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971). If the evidence only raises a suspicion or conjecture as to the existence of the fact to be found, the issue should not be submitted. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).
Chief Justice Stacy stated the applicable rule as follows:
[I]f there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.
*179State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930).
State v. Stanley, 310 N.C. 332, 347, 312 S.E. 2d 393, 401-02 (1984) (Martin, J., dissenting).
The majority relies to a large extent upon the theory that -the-first shot to strike Bramlett rendered him unconscious and he did not suffer any pain from the infliction of the additional six bullet wounds. This theory is based upon the following testimony of Dr. Gable:
Q. Dr. Gable, in your medical expert opinion, if in fact the gunshot wound to the head was the first shot that hit the victim Asa Bramlett, would he have been rendered unconscious and not feeling any pain thereafter?
A. In my opinion he probably would have been rendered unconscious, yes, sir.
Q. And that would mean he wouldn’t feel any pain?
A. Yes, sir.
The majority jumps from this testimony to the conclusion that “it rendered him unconscious and unable to feel any pain.” “The victim was unconscious and unable to feel any pain after the shot to his head.” (Emphases ours.)
Dr. Gable’s testimony just does not support the majority’s conclusion. The jury could infer that the shot rendered Bramlett unconscious or it could decline to do so. The point is that it was a question for the jury to decide, not the court. The doctor said all that he could, that in his opinion the shot to the head probably rendered the victim unconscious. Whether it did was a question of fact for the jury.
The evidence discloses an appreciable interval of time between the first shot, which missed Bramlett, and the next shot that struck him in the head. Etta Allen testified:
Q. After you heard that shot what did you hear or see?
A. Well, after the first shot I didn’t hear anything for awhile.
*180Q. For awhile? What do you mean? What do you mean, “For a while.”
A. Well, moments passed before I heard anything else.
Q. What did you hear after moments passed?
A. I heard another — other shots.
From this testimony, the jury could reasonably infer that Bramlett endured psychological torture during those moments as he faced defendant’s pistol, awaiting the next shot. State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983). Likewise, as in Oliver, it is significant that after the witness Etta Allen inquired “Who did it?” the defendant replied “I did. Does anyone have anything to say about it?” Defendant then reloaded his revolver and fired more bullets into Bramlett, lying prostrate on the floor.
This statement and the additional wounding of Bramlett as he lay helpless indicates a conscienceless and pitiless murder with excessive brutality. State v. Stanley, 310 N.C. 332, 312 S.E. 2d 393. The majority concedes that this murder was “certainly a vicious and pitiless crime.”
The correct standard to be applied in determining whether the evidence is sufficient to be submitted to the jury on this issue is expressed in
State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 74 L.Ed. 2d 622 (1982). The aggravating circumstance “ ‘does not arise in cases in which death was immediate and in which there was no unusual infliction of suffering upon the victim.’ ” Id. at 34, 292 S.E. 2d at 228 (citation omitted). It is appropriate only when there is evidence of “excessive brutality, beyond that normally present in any killing, or when the facts as a whole portray the commission of a crime which was conscienceless, pitiless or unnecessarily torturous to the victim.” Id. See State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, 455 U.S. 1038 (1982); State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979).
State v. Stanley, 310 N.C. at 350-51, 312 S.E. 2d at 403 (Martin, J., dissenting).
*181It is true that not every murder is especially heinous, atrocious, or cruel. However, I find the evidence here sufficient to submit the issue to the jury for its determination within the guidelines of Godfrey v. Georgia, 446 U.S. 420, 64 L.Ed. 2d 398 (1980), and the decisions of this Court. The evidence is sufficient for the jury to find that the killing was excessively brutal, beyond that normally present in a killing, and that it was conscienceless, pitiless, or unnecessarily torturous to Asa Bramlett and therefore especially heinous, atrocious, or cruel. State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056 (1982). The jury under proper instructions remains free to reject or find the circumstance. State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941 (1980). Certainly, in resolving the question of law as to whether this aggravating circumstance should be submitted to the jury, it is not our province to consider how the jury should have answered the issue. That is the proper function of the jury under proper instructions from the trial court. The evidence supporting the jury’s finding that the murder was especially heinous, atrocious, or cruel goes far beyond mere speculation or conjecture and the issue was properly submitted to the jury. My vote is to find no error in the sentencing phase of the trial, and the Court should then conduct its proportionality review. N.C. Gen. Stat. § 15A-2000(d)(2) (1977).
Justices COPELAND and Meyer join in this dissenting opinion.