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STATE v. CARVER
Factual and Procedural Background
This appeal arises from a judgment imposing a sentence of life imprisonment entered 7 April 1986 by Judge C. Walter Allen in Superior Court, Graham County. The defendant, Freeman Carver, pled guilty to second degree murder. The sentencing evidence showed that Carver attended a cookout in the Mill Creek area of Graham County, consumed alcoholic beverages throughout the day, and did not participate in two earlier fights at the event. After another guest fired a .22 caliber rifle into the air, the defendant took a .308M-1 semiautomatic rifle from a truck, left the truck, and fired multiple shots into a crowd; one shot killed Ned Nichols. The rifle was capable of firing eight bullets without reloading.
At sentencing the trial court found two aggravating factors: (1) that the defendant knowingly created a great risk of death to more than one person by means of a weapon or device normally hazardous to the lives of more than one person (N.C.G.S. 15A-1340.4(a)(1)g), and (2) that the defendant had prior convictions for offenses punishable by more than 60 days' confinement. The court found two statutory mitigating factors (early voluntary acknowledgment of wrongdoing to law enforcement; honorable discharge from the U.S. armed services) and three nonstatutory mitigating factors (alcohol impairment that reduced but did not excuse culpability; that the defendant and others were involved in an affray and he used such force as he reasonably believed necessary; and that the defendant expressed remorse and pleaded guilty). The court concluded the aggravating factors outweighed the mitigating factors and imposed life imprisonment.
Procedurally, the defendant appealed pursuant to N.C.G.S. 15A-1444(a1) and N.C.R. App. P. 4(d). The case was initially appealed to the Court of Appeals and transferred to the Supreme Court of North Carolina. The Supreme Court heard the case 14 April 1987 and filed its opinion 2 June 1987.
Legal Issues Presented
- Whether the evidence supports the finding of the aggravating factor that the defendant "knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person" (N.C.G.S. 15A-1340.4(a)(1)g).
- Whether the evidence supports the mitigating factor that the defendant was engaged in an affray and used only such force as he reasonably believed necessary.
- Whether the trial court abused its discretion in weighing the aggravating and mitigating factors and in imposing a sentence exceeding the presumptive sentence.
Arguments of the Parties
Appellant's Arguments
- The appellant assigned error to the trial court's finding of the aggravating factor described in N.C.G.S. 15A-1340.4(a)(1)g and contended that the qualitative value of the aggravating and mitigating factors was not properly weighed.
- Specifically, the appellant argued that two mitigating factors—(a) alcohol impairment that reduced his culpability and (b) that he was engaged in an affray and used only such force as he reasonably believed necessary—were entitled to greater weight and raised doubts about whether the court should have accepted his plea to second degree murder.
- The appellant contended that excessive weight was given to the aggravating factors and insufficient weight to the mitigating factors.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984) | Interpreting an identical aggravating factor (N.C.G.S. 15A-2000(e)(10)): focus on (1) a great risk of death knowingly created, and (2) whether the weapon in its normal use is hazardous to the lives of more than one person. | The Court applied Moose's two-consideration test and concluded that firing a .308M-1 semiautomatic rifle several times into a crowd created a great risk of death to more than one person and that a semiautomatic rifle's normal use (firing multiple rounds) is hazardous to more than one person; thus the aggravating factor was supported. |
| State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122 (1986) | Court of Appeals decision holding it was error to find the aggravating factor where the defendant shot the victim three separate times with a pistol. | The Court distinguished Jones on the facts (shots directed at a single person) and held Jones does not conflict with the result here because multiple shots into a crowd present a materially different risk profile. |
| State v. Bethea, 71 N.C. App. 125, 321 S.E.2d 520 (1984) | Court of Appeals decision holding it was error to find the aggravating factor where the defendant fired one shot from a bolt action rifle which wounded a deputy sheriff. | The Court distinguished Bethea on the facts (single shot) and explained that Bethea's circumstances differ from multiple rapid shots into a crowd; thus the aggravating-factor finding here is consistent with Bethea. |
| State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986) | Authorities concerning appellate review of a trial court's weighing of aggravating and mitigating factors and the court's discretion in sentencing. | The Court cited Penley as support for the proposition that the trial court acted within its discretion in determining the aggravating factors outweighed the mitigating factors. |
| State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983) | Authorities on appellate review of sentencing discretion and weighing of factors. | The Court relied on Ahearn to support the conclusion that the trial court did not abuse its discretion in weighing aggravating and mitigating factors. |
| State v. Davis, 58 N.C. App. 330, 293 S.E.2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982) | Authorities regarding discretionary weighing of aggravating and mitigating factors on sentencing review. | The Court cited Davis among authorities confirming that the trial court's balancing of factors was within its discretion. |
Court's Reasoning and Analysis
The Court addressed the appellant's first assignment of error by applying the interpretive framework articulated in State v. Moose: the inquiry focuses on (1) whether a great risk of death was knowingly created and (2) whether the weapon in its normal use is hazardous to the lives of more than one person. The Court found that firing a .308M-1 semiautomatic rifle several times into a crowd plainly creates a great risk of death to more than one person, and that a semiautomatic rifle's normal use—firing multiple rounds in rapid succession (here, up to eight without reloading)—is hazardous to more than one person. From this the Court concluded the evidence supports the aggravating-factor finding under N.C.G.S. 15A-1340.4(a)(1)g.
The Court distinguished earlier decisions (Bethea and Jones) in which the Court of Appeals found the aggravating factor improperly applied where only a single shot was fired or where multiple shots were directed at a single person. The Court explained that those factual patterns differ materially from multiple shots fired into a crowd and therefore do not render the present decision inconsistent with those cases.
Concerning the appellant's challenge to the weighing of aggravating and mitigating factors, the Court examined the mitigating finding that the defendant was engaged in an affray and used only such force as he reasonably believed necessary. The Court concluded there was insufficient evidence to support that mitigating finding because there was no evidence anyone was firing at the defendant when he fired indiscriminately into the crowd; thus the defendant could not have reasonably believed deadly force of that nature was necessary for self-defense. The Court noted that the erroneous inclusion of that mitigating factor was favorable to the defendant.
After identifying which mitigating factors were properly supported by the record, the Court held that the trial court acted within its discretion in determining that the two aggravating factors outweighed the properly found mitigating factors. The Court cited State v. Penley, State v. Ahearn, and State v. Davis in support of its conclusion regarding the trial court's discretionary weighing and appellate review.
Holding and Implications
Holding: The judgment of the superior court is Affirmed.
Implications: The Supreme Court of North Carolina affirmed the trial court's findings and sentence. It held that the evidence supported the aggravating factor under N.C.G.S. 15A-1340.4(a)(1)g when a defendant fired multiple rounds from a semiautomatic rifle into a crowd, and it concluded the trial court did not abuse its discretion in weighing aggravating and mitigating factors after correcting which mitigating findings were supported by the record. The direct effect is that the defendant's life sentence imposed by the superior court remains in force.
1. Criminal Law 138.22 — aggravating factor — use of weapon normally hazardous to more than one life — sufficient evidence The trial court properly found as an aggravating factor for second degree murder that defendant knowingly created a great risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person where the evidence showed that defendant fired multiple shots into a crowd of people with a semi-automatic rifle which would fire eight bullets without being reloaded. N.C.G.S. 15A-1340.4(a)(1)g.
2. Criminal Law 138.42 — mitigating factor — use of only necessary force — insufficient evidence The evidence did not support the trial court's finding as a mitigating factor for second degree murder that defendant was engaged in an affray and used only such force as was necessary where there was no evidence that anyone was firing at defendant when he fired indiscriminately into a crowd, and defendant could not have believed that it was necessary to fire a rifle as he did in order to defend himself.
3. Criminal Law 138.14 — weighing of aggravating and mitigating factors — no abuse of discretion The trial court acted within its discretion in finding that two aggravating factors outweighed the two statutory and two non-statutory mitigating factors properly found by the court.
The defendant pled guilty to second degree murder. The evidence at the sentencing hearing showed that the defendant attended a "cookout" in the Mill Creek area of Graham County with two friends Mike Roberts and Robert Crisp. The defendant had been drinking the entire day and when he was at the cookout he continued to consume alcoholic beverages. Defendant's friend Mike Roberts was asked to leave the party by one Comer Crisp. Roberts refused this request and a fight began between Roberts and Crisp. These two men were separated and a second fight began between Comer Crisp and defendant's friend Robert Crisp. The defendant did not participate in either of these two altercations.
As the fighting continued another guest at the party fired a .22 caliber rifle into the air, presumably to break up the altercation. The defendant, who had climbed into Roberts' truck in preparation for their departure, took a .308M-1 rifle from the cab of the truck, and being intoxicated and in fear of being fired upon, left the truck and began firing into the crowd. One of these shots killed Ned Nichols. The rifle used by the defendant was a semiautomatic which would fire eight bullets without being reloaded.
The court found two aggravating factors: (1) that the defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person, and (2) the defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days' confinement. The court found two statutory mitigating factors, that (1) at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer, and (2) the defendant has been honorably discharged from the United States armed services. The court also found three nonstatutory mitigating factors which were (1) the defendant was impaired by the consumption of alcohol at the time of the crime, which is insufficient to constitute a defense but did reduce his culpability, (2) the defendant and others were involved in an affray at the time and the defendant used such force as he reasonably believed was necessary, and (3) the defendant expressed remorse over the death of the victim and pleaded guilty. The court found the aggravating factors outweighed the mitigating factors and sentenced the defendant to life in prison.
WEBB, Justice.
The appellant first assigns error to the finding of the aggravating factor that the "defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person." N.C.G.S. 15A-1340.4(a)(1)g. This aggravating factor has been dealt with in three cases. State v. Moose, 310 N.C. 482, 313 S.E.2d 507 (1984); State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122 (1986); and State v. Bethea, 71 N.C. App. 125, 321 S.E.2d 520 (1984). Moose dealt with the aggravating factor involved in imposing the death sentence. N.C.G.S. 15A-2000(e)(10). The language of the two sections is identical and we believe the interpretation of Moose is applicable to this case. Justice Meyer, writing in Moose, said that in interpreting this section the focus is on two considerations: (1) a great risk of death knowingly created, and (2) whether the weapon in its normal use is hazardous to the lives of more than one person. In Moose it was held that the aggravating factor could be found when the evidence showed the defendant had fired a shotgun into an automobile occupied by two people.
In this case we believe it is evident that a great risk of death is created to more than one person when a .308M-1 rifle is fired several times into a crowd of several persons. Any reasonable person should know this and we can conclude the defendant created this risk knowingly. A semi-automatic rifle may be used normally to fire several bullets, in this case eight, in rapid succession. Several bullets fired in rapid succession are hazardous to the lives of more than one person; therefore we hold that the evidence in this case supports a finding of the aggravating factor that the defendant knowingly created a great risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person.
In Bethea the defendant fired one shot from a bolt action rifle which wounded a deputy sheriff. In Jones the defendant shot the victim three separate times with a pistol. The Court of Appeals held it was error to find the aggravating factor in each case. We do not believe that our decision in this case is inconsistent with Bethea or Jones. If the defendant in this case had fired only one shot, as in Bethea, or had fired at one person three times, as in Jones, we might have a different result because it would be difficult to find the defendant knowingly created a great risk of death to more than one person. The use of the weapons in those two cases distinguishes Bethea and Jones from this case. The defendant's first assignment of error is overruled.
[2, 3] The defendant next assigns error to the court's determination that the aggravating factors outweighed the mitigating factors and its imposition of a sentence in excess of the presumptive sentence. He contends that the qualitative value of the factors was not properly weighed. He argues specifically that the court found two mitigating factors, that he was impaired by alcohol to such an extent that although it did not constitute a defense it did reduce his culpability, and that he was engaged in an affray and used only such force as he reasonably believed necessary. He says that these two factors found by the court raise a question as to whether the court should have accepted his plea of guilty to second degree murder. He contends that at the very least we should conclude that excessive weight was given to the aggravating factors and insufficient weight to the mitigating factors.
As to the mitigating factors found by the court, the defendant was engaged in an affray and used only such force as he reasonably believed necessary, there is not sufficient evidence to support such a finding. There is no evidence that anyone was firing at the defendant when he fired indiscriminately into the crowd. The defendant could not have reasonably believed it was necessary to fire the rifle as he did in order to defend himself. It was error favorable to the defendant for the court to make this finding. The court acted within its discretion in determining that the two aggravating factors outweighed the mitigating factors that were properly found. See State v. Penley, 318 N.C. 30, 347 S.E.2d 783 (1986); State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983); and State v. Davis, 58 N.C. App. 330, 293 S.E.2d 658, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982).
The judgment of the superior court is
Affirmed.
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