State v. Carver

356 S.E.2d 349 (1987)

319 N.C. 665

STATE of North Carolina v. Freeman CARVER

No. 544A86.

Supreme Court of North Carolina.

June 2, 1987.

*351 Lacy H. Thornburg, Atty. Gen., by James Wallace, Jr., Asst. Atty. Gen. and Jeffrey P. Gray, Raleigh, Associate Atty. Gen., for the State.

James L. Blomeley, Jr., Andrews, and Joseph B. Roberts, III, Gastonia, for defendant-appellant.

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.

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 *352 factors and insufficient weight to the mitigating factors.

As to the mitigating factor 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.