State v. Golphin8/25/2000
was committed in a fashion beyond what was necessary to effectuate the victim's death. See State v. Reese, 319 N.C. 110, 146, 353 S.E.2d 352, 373 (1987), overruled on other grounds by Barnes, 345 N.C. 184, 481 S.E.2d 44.
In two previous cases with fact patterns similar to the instant case, this Court found no error in the submission of the (e)(9) aggravating circumstance. In State v. Pinch, the defendant shot the victim once, and then walked over to where the victim lay moaning and shot him again at close range. State v. Pinch, 306 N.C. 1, 35, 292 S.E.2d 203, 228, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622 (1982), overruled on other grounds by State v. Rouse, 339 N.C. 59, 451 S.E.2d 543 (1994), cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1995), by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995), and by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988). In State v. Bonney, this Court held the (e)(9) aggravating circumstance was properly submitted to the jury when the victim died within two or three minutes after being shot, but was nevertheless aware of his impending death. See State v. Bonney, 329 N.C. 61, 80, 405 S.E.2d 145, 156 (1991). In the instant case, Tilmon shot Trooper Lowry, causing him to become incapacitated. Kevin was therefore able to shake himself free of Trooper Lowry's grasp and retrieve the trooper's pistol. He then shot the trooper multiple times as he lay on the ground moaning. Because Trooper Lowry had the presence of mind to attempt to grab Kevin after he had been shot, this, taken in the light most favorable to the State, was evidence he was aware of his fate and unable to prevent impending death. See Hamlet, 312 N.C. at 175, 321 S.E.2d at 846. These facts are sufficiently similar to the facts of Pinch and Bonney to warrant the same holding. Therefore, sufficient evidence did exist to support the submission of the (e)(9) aggravating circumstance to the jury.
In his third argument, Kevin contends the (e)(9) aggravating circumstance should not have been submitted against him because it was arbitrary and capricious to submit the circumstance against only him, and not against Tilmon. However, he failed to object at trial and has cited no authority to support his contentions. We have previously recognized that the (e)(9) aggravating circumstance can be utilized when the evidence shows the murder "was committed in such a way as to amount to a conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Martin, 303 N.C. 246, 255, 278 S.E.2d 214, 220, cert. denied, 454 U.S. 933, 70 L. Ed. 2d 240 (1981) (emphasis added). The State has borne this burden with respect to Kevin. Kevin has not shown the (e)(9) circumstance was improperly submitted. The trial court did not err in submitting the (e)(9) aggravating circumstance against Kevin. This assignment of error is accordingly overruled.
By assignments of error, Tilmon and Kevin contend the trial court erred by allowing the jury to consider and find aggravating circumstances pursuant to both N.C.G.S. § 15A-2000(e)(4), that the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, and (e)(8), that the capital felony was committed against a law enforcement officer while engaged in the performance of his official duties. We disagree.
Kevin concedes this argument has been decided adversely to his position in Hutchins, 303 N.C. 321, 279 S.E.2d 788. Tilmon, however, argues the circumstances were based on the same evidence and inherently duplicitous. "Aggravating circumstances are not considered redundant absent a complete overlap in the evidence suppo
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