State v. Golphin8/25/2000
the circumstance. See id. at 697, 467 S.E.2d at 669. Moreover, the case relied on by Kevin to support the unanimity requirement, Richardson v. United States, 526 U.S. 813, 143 L. Ed. 2d 985 (1999), actually requires unanimity for elements of an offense, rather than for aggravating circumstances. Therefore, we conclude the trial court did not err by using a disjunctive instruction for the two theories under one (e)(5) aggravating circumstance. This assignment of error is overruled.
In an assignment of error, Kevin argues the trial court committed reversible constitutional error by submitting the N.C.G.S. § 15A-2000(e)(9) aggravating circumstance, that the murder was especially heinous, atrocious, or cruel in the Trooper Lowry case. The jury found this circumstance to exist, and Kevin contends resentencing is required. Kevin bases his argument on three separate grounds: (1) the (e)(9) circumstance is unconstitutionally vague, (2) submission of the (e)(9) circumstance was not supported by the evidence, and (3) it was arbitrary and capricious to submit the (e)(9) circumstance as to him and not as to his brother. We disagree.
We first address Kevin's argument that the (e)(9) aggravating circumstance is unconstitutionally vague. Although defendant requested that the trial court not submit the (e)(9) circumstance because it was not justified in the instant case, he never made any constitutional claims at trial and never objected after the trial court's instruction. He will "not be heard on any constitutional grounds now." State v. Anderson, 350 N.C. 152, 186, 513 S.E.2d 296, 317, cert. denied, ___ U.S. ___, 145 L. Ed. 2d 326 (1999). Moreover, this Court has consistently rejected this argument. See id. at 187, 513 S.E.2d at 317; Simpson, 341 N.C. at 357, 462 S.E.2d at 214.
Kevin further contends the evidence does not support submission of the (e)(9) aggravating circumstance. "In determining whether evidence is sufficient to support the trial court's submission of the especially heinous, atrocious, or cruel aggravator, we must consider the evidence `in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.'" Flippen, 349 N.C. at 270, 506 S.E.2d at 706 (quoting State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988)). Determination of whether submission of the (e)(9) circumstance is appropriate depends on the facts of the case. See Anderson, 350 N.C. at 185, 513 S.E.2d at 316.
This Court has previously held the following types of murders to warrant submission of the (e)(9) aggravating circumstance:
One type includes killings physically agonizing or otherwise dehumanizing to the victim. State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328 (1988). A second type includes killings less violent but "conscienceless, pitiless, or unnecessarily torturous to the victim," State v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 826-27 (1985) [, cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988)], including those which leave the victim in her "last moments aware of but helpless to prevent impending death," State v. Hamlet, 312 N.C. 162, 175, 321 S.E.2d 837, 846 (1984). A third type exists where the "killing demonstrates an unusual depravity of mind on the part of the defendant beyond that normally present in first-degree murder." Brown, 315 N.C. at 65, 337 S.E.2d at 827. Gibbs, 335 N.C. at 61-62, 436 S.E.2d at 356.
In addition, this Court held the submission of the (e)(9) aggravating circumstance is warranted when there is evidence that the killing
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