State v. Blackwelder

• Decision Date: 27 September 1983
• Docket Number: No. 231A83,231A83
• Citation: 306 S.E.2d 783,309 N.C. 410
• Parties: STATE of North Carolina v. Bobby Lewis BLACKWELDER.
• Court: North Carolina Supreme Court

Page 783

306 S.E.2d 783

309 N.C. 410

STATE of North Carolina v. Bobby Lewis BLACKWELDER.

No. 231A83.

Supreme Court of North Carolina.

Sept. 27, 1983.

Rufus L. Edmisten, Atty. Gen. by Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the State.

Kenneth L. Eagle, Salisbury, for defendant-appellant.

MEYER, Justice.

Defendant first contends that the trial court erred in finding as a factor in aggravation that the offense was especially heinous, atrocious, or cruel. G.S. § 15A-1340.4(a)(1)f. We have addressed the applicability of this factor in the context of a manslaughter offense in State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). In that case we looked, for definitional purposes only, to those capital cases where a similar factor had been applied under G.S. § 15A-2000(e)(9). We considered whether death was immediate; whether there was unusual infliction of suffering upon the victim; whether there was evidence of excessive brutality beyond that normally present in any killing; or whether the facts as a whole portrayed the commission of a crime which was conscienceless, pitiless or unnecessarily tortuous to the victim. We held that evidence which indicated that a baby had been beaten to death, struck against a bedpost with such force that it shattered his body cast and crushed his skull, was sufficient to support a finding that the voluntary manslaughter offense was especially heinous, atrocious, or cruel. We noted that the baby's injuries were multiple and death was not immediate.

The Court of Appeals has since applied this factor in State v. Medlin, 62 N.C.App. 251, 302 S.E.2d 483 (1983), and State v. Hammonds, 61 N.C.App. 615, 301 S.E.2d 457 (1983) (assault with a deadly weapon with intent to kill inflicting serious injury); in State v. Massey, 62 N.C.App. 66, 302 S.E.2d 262 (1983) (attempted burglary); in State v. Abee, 60 N.C.App. 99, 298 S.E.2d 184 (1982), mod. and aff'd., 308 N.C. 379, 302 S.E.2d 230 (1983) (multiple sex offenses); and in State v. Sandlin, 61 N.C.App. 421, 300 S.E.2d 893, cert. den., 308 N.C. 679, 304 S.E.2d 760 (1983) (second degree murder by strangulation). In Medlin and Massey the Court of Appeals found insufficient evidence of "excessive brutality" to support a finding that the crimes were especially heinous, atrocious, or cruel, ¹ while in Hammonds the court found no evidence of this factor apart from evidence necessary to prove elements of the offense, i.e. use of a deadly weapon and serious injury. In Abee and Sandlin, the Court of Appeals upheld a finding that the crimes were especially heinous, atrocious, or cruel, without discussion.

While it is instructive to turn to our capital cases for a definition of an especially heinous, atrocious, or cruel offense, we decline to measure the facts of those capital cases against the facts of cases decided under G.S. § 15A-1340.4(a)(1)f. Rather, 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.

Defendant contends that the facts of the case sub judice do not support a finding that this murder was excessively brutal, or involved an unusual degree of suffering. We disagree.

An examination of the victim's body revealed two shotgun wounds, one on the left back area and the other through the top of the head, the head wound resulting in severe disfigurement. There were many small bruises on the front of both thighs, between one-sixteenth and one-eighth of an inch, circular and randomly distributed. There were also several similar bruised areas on the right forearm, but these had small cut marks one-eighth of an inch long and deep in each one. The autopsy report also noted a laceration below the victim's kneecap, possibly caused by a fall prior to death. We agree that evidence of bruises and cuts, if inflicted prior to death by the defendant, would support a conclusion that there was physical and psychological pain or torture not normally present in a murder; however, the record here is silent on how or when the victim sustained these wounds. Without regard to the evidence of these cuts and bruises, the record supports a conclusion that the murder was excessively brutal and that the victim, whose death was not immediate, suffered unnecessary physical pain prior to death. In fact, photographs taken of the crime scene bespeak of a ghoulish, bloody nightmare.

The examining pathologist determined that the first serious wound inflicted was the shotgun wound to the victim's back. His opinion was based on the amount of bleeding into the soft tissues of the armpit--bleeding that would be less likely to occur after death when the heart had stopped. The pathologist further testified that the wound could have been fatal, but would not cause instantaneous death and that a person of the size, weight, age and physical condition of the victim could have lived a maximum of several hours after receiving such a wound. The victim's body was discovered in the kitchen. In addition to the blood and brains scattered in the vicinity of the body as a direct result of a close-range shotgun blast to the head, there were blood stains found on the front porch or deck of the trailer, in the bathroom, and in the hallway leading to the bathroom. The clear indication is that the victim was wounded and bleeding and thus suffered for some time prior to the fatal shot. Also, we do not consider it inappropriate in any case to measure the brutality of the crime by the extent of the physical mutilation of the body of the deceased or surviving victim. In the present case there was evidence that the muzzle of the shotgun was placed no more than an inch from the head. The result was an excessively brutal murder:

The head wound was on the very top of the head in the middle and there was an entrance hole which measured about an inch in diameter. Around the hole there were tears in the skin going off in all directions and there was some soot material on the skin surface of the back side of the hole. There was severe fracturing of the skull and most of the brain was absent. The brain could have been blown out of the skull through the large tear in the front of the face. This tear was down the right side of the front of the face and basically split the top of the face in half. The tear was from the top of the head down through the right eye and down the cheek next to the nose, not quite reaching the mouth. There were several other tears coming off that in the front of the face. The bones of the skull were shattered in many pieces and the entire skull cavity could be opened as wide as the head would go.

The trial judge properly found as an aggravating factor that the murder was especially heinous, atrocious, or cruel.

Defendant next contends that the trial court erred in finding, as an aggravating factor, that defendant was armed with or used a deadly weapon at the time of the crime. G.S. § 15A-1340.4(a)(1)i. In support of his contention defendant relies on the language of G.S. § 15A-1340.4(a)(1) which states, in pertinent part, that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation ...." Thus, argues defendant, because evidence of the use of a deadly weapon was necessary to prove the malice element of the second degree murder offense, the same evidence could not be used to prove this factor in aggravation. The argument has merit.

In this case, as in virtually every case involving murder effected by the use of a deadly weapon, the trial judge instructed on the inference of malice raised by the use of a deadly weapon:

Second degree murder is the unlawful killing of a human being with malice.

Now the State of North Carolina has offered evidence which tended to show that on or about the 28th day of September, 1982, the Defendant went in a cab with the deceased, Michael Trent Tew, to the trailer owned by the Defendant and that while there, the Defendant took a shotgun which he owned and shot Mr. Tew once in the back and then in the top of the head with the shotgun, and that Mr. Tew died as a result of one or both of these gunshot wounds.

The Defendant elected not to offer evidence, but relied on the insufficiency or the weakness of the State's case.

Now I charge that for you to find the Defendant guilty of second degree murder, the State must prove two things beyond a reasonable doubt. First, that the Defendant intentionally and with malice shot Michael Trent Tew with a deadly weapon.

Intent is a mental attitude which is seldom provable by direct evidence. It must ordinarily be proven by circumstances from which it may be inferred. You arrive at the intent of a person by such reasonable deduction from circumstances proven as a reasonably prudent person would ordinarily draw therefrom.

Malice means not only hatred, ill-will or spite as it is ordinarily understood. To be sure, that is malice. But it also means that condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily harm which proximately results in his death and without just cause, excuse, or justification.

A shotgun is a deadly weapon.

The second thing the State must prove to you beyond a reasonable doubt is that the shooting was a proximate cause of Michael Tew's death. A proximate cause is a real cause, a cause without which Michael Tew's death would not have occurred. If the State proves beyond a reasonable doubt that the Defendant intentionally killed Michael Trent Tew with a deadly weapon or intentionally inflicted a wound upon Michael Trent Tew with a deadly weapon that proximately caused his death, the law implies first that the killing was unlawful and secondly that it was done with malice.

(Emphasis added).

Without launching into a full discourse on the history or the impact of the "inference of malice" instruction, see State v. Reynolds,...