State v. McLean

Judge Arnold

concurring in part and dissenting in part.

I do not agree with the majority that the trial judge erred in finding statutory aggravating factor G.S. 15A-1340.4(a)(l)(f), that defendant committed the offense in an especially heinous, atrocious or cruel manner.

The jury found defendant guilty of assault with a deadly weapon inflicting serious injury. The evidence which tended to support that verdict was that defendant first struck Mr. McLucas across the face, then cut him with a shiny object, and then proceeded to strike him repeatedly on the back and head. The severity of the attack is reflected in the fact that McLucas received approximately fifty stitches on his face from the two cuts inflicted by defendant, that he (McLucas) was hospitalized for two weeks, and that he lost sight in one eye and developed amnesia.

The evidence that defendant cut McLucas twice with a shiny object, causing injury requiring fifty stitches, is sufficient to support the jury’s verdict on the crime charged. Evidence that the defendant struck McLucas repeatedly on the head and face, caus*231ing amnesia and loss of sight in one eye is surely strong evidence of “excessive brutality,” State v. Blackwelder, 309 N.C. 410, 414, 306 S.E. 2d 783, 786 (1983).

I believe that the legislature intended that in cases where the defendant is found guilty of assault with a deadly weapon which results in serious injury the crime can be aggravated and the punishment increased when the offense is committed in a manner which goes beyond what is needed to justify conviction and can be described as especially heinous, atrocious or cruel. The fact that the legislature provided a maximum sentence and that it did not restrict the application of this statutory aggravating factor are good indications of that intent.

In the present case, I believe that a preponderance of the evidence supports the conclusion that defendant committed the offense in a heinous, atrocious or cruel manner. The trial court did not err in making this finding.