State v. Quesinberry , 319 N.C. 228 ( 1987 )

Justice MARTIN

dissenting in part.

I dissent from the holding of the majority awarding the defendant a new sentencing hearing. Otherwise, I concur in the majority opinion.

The majority finds that the trial court erred in submitting as aggravating circumstances that the murder occurred while defendant was committing a robbery and that the murder was committed for pecuniary gain. Believing as I do that there is no legislative impediment to submitting both aggravating circumstances in this case, I disagree.

The majority candidly concedes that N.C.G.S. § 15A-2000, our capital sentencing act, does not prohibit the use of both circumstances in a sentencing hearing based upon premeditated and deliberate murder. Nevertheless, the majority proceeds to bar the use of both of these circumstances in such sentencing hearings. In doing so, the majority misperceives the nature of and reason for the aggravating circumstance that the murder was committed in the commission of a robbery. It is the intent of the legislature that jurors should be allowed to consider whether premeditated and deliberate murders committed in the commission of a robbery should be punished more severely than other premeditated and deliberate murders. That the defendant is seeking pecuniary gain is not the only fact that makes robbery an aggravating circumstance. Robbery involves an assault, a taking of the property of another by violence or by putting the victim in fear. State v. Moore, 279 N.C. 455, 183 S.E. 2d 546 (1971). Armed robbery additionally involves the use of a deadly weapon endangering the life of the victim. So the crime of robbery involves more than seeking pecuniary gain; it is assaultive conduct that may, and often does, endanger the lives of persons other than the murder victim. It is extremely relevant to the purposes of sentencing. It is the actions of defendant that are being considered by the jury with respect to this aggravating circumstance.

In contrast, when the jury considers the aggravating circumstance of “pecuniary gain,” it is evaluating the motive or reason why the murder was committed. State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983). Rather than being concerned with the actions of the defendant, here the jury is considering the mental state of defendant. The legislature has said that a jury should be allowed to consider for the purposes of sentencing the circumstance that the defendant committed the murder for the purpose of pecuniary gain.

The two aggravating circumstances are not subsumed one into the other. By way of illustration, the aggravating circumstance of the murder being committed in the commission of a felony, N.C.G.S. § 15A-2000(e)(5), includes flight from an attempt to commit robbery. In such case the motive would be escape rather than pecuniary gain.

This Court has already held in a strong line of cases that it is proper to submit the “pecuniary gain” aggravating circumstance in cases of murder in the first degree based on felony murder with robbery as the underlying felony. Oliver, 309 N.C. 326, 307 S.E. 2d 304; State v. Jackson, 309 N.C. 26, 305 S.E. 2d 703 (1983); State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981), cert. denied, 463 U.S. 1213, 77 L.Ed. 2d 1398, reh’g denied, 463 U.S. 1249, 77 L.Ed. 2d 1456 (1983); State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941, 64 L.Ed. 2d 796 (1980). This does not violate the eighth amendment to the United States Constitution. State v. Williams, 317 N.C. 474, 346 S.E. 2d 405 (1986).¹

Here Quesinberry was not sentenced for felony murder but for murder based upon premeditation and deliberation. Of course, robbery is not an essential element of premeditated and deliberate murder. The contentions of the defendant are even weaker where, as here, the robbery is not essential to the state’s case. The General Assembly has mandated that where there is evidence to support the aggravating circumstances, as here, the jury should be allowed to consider both the actions of the defendant (actus reus) (the killing occurred during the commission of a robbery) and the mental state or motive of the defendant (mens rea) (the killing was for the purpose of pecuniary gain). Because one aggravating circumstance focuses on conduct and the other on mental state, the two are by no means redundant and it was not error to submit both in this case. This Court should find no error in the sentencing phase and thereupon determine the issue of proportionality.

I am authorized to state that Justices MEYER and MITCHELL join in this dissenting opinion.

1 . In State v. Young, 312 N.C. 669, 325 S.E. 2d 181 (1985), this Court upheld a sentencing hearing where both aggravating circumstances at issue here were submitted to the jury, although the Court’s opinion does not address the issue.