Opinion
No. 166A87
Filed 3 February 1988
Criminal Law 138.24 — second degree murder — aggravating factor — physical infirmity of victim — alcohol concentration of .29% The trial court properly found as an aggravating factor for second degree murder that "the victim was physically infirm because he had an alcohol concentration of .29%" where the evidence would support inferences by the trial court that defendant and his accomplices knew the victim was under the influence of alcohol and targeted him for this reason and that, when the attack on the victim began, the attackers took advantage of his physical infirmity.
APPEAL by defendant pursuant to N.C.G.S. 15A-1444 (a1) and Rule 4 (d) of the North Carolina Rules of Appellate Procedure from a judgment imposing a life sentence entered by Rousseau, Judge, at the 18 November 1986 Criminal Session of Superior Court, FORSYTH County. Heard in the Supreme Court 7 December 1987.
Lacy H. Thornburg, Attorney General, by Daniel C. Oakley, Special Deputy Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, for defendant appellant.
Justice MEYER dissenting.
Chief Justice EXUM joins in this dissenting opinion.
The defendant pled guilty to second degree murder. The evidence introduced at the sentencing hearing showed that in April 1986, while the defendant was incarcerated in the Forsyth County jail on an unrelated charge, he confessed to an unsolved murder which had occurred on 17 September 1983. In his confession, the defendant said that he, Samuel Mitchell and Darryl Hunt were in a "drink house" when they saw Arthur Wilson buying liquor and "flashing" a large amount of money. The three men agreed to rob Wilson when he left the "drink house." They accompanied Mr. Wilson for about two blocks when he left the drink house and "clotheslined" him. As Mr. Wilson lay on the ground, they kicked him and beat him with an ax handle until the blows sounded "mushy like." The three men then took Mr. Wilson's money and left.
There was evidence that corroborated the defendant's confession. An autopsy of Mr. Wilson's body showed he died of a blunt trauma to the head and that he had a blood alcohol content of .29 percent.
The court found three aggravating factors, including a finding that "The victim was physically infirm because he had an alcohol concentration of .29%." The court found as a mitigating factor that "At an early stage of the criminal process, the defendant voluntarily acknowledged wrong-doing in connection with the offense to a law enforcement officer." The court found the aggravating factors outweighed the mitigating factor and sentenced the defendant to life in prison. The defendant appealed.
The defendant assigns error to the finding of the aggravating factor that "The victim was physically infirm because he had an alcohol concentration of .29%." The defendant contends that because a person has a blood alcohol content of .29 percent does not prove he is physically infirm. He argues further that if Mr. Wilson was physically infirm, there is no proof that he was targeted for the crime because of his physical infirmity or the defendant took advantage of the infirmity in committing the crime.
The gravamen of the aggravating factor that the victim is physically infirm is vulnerability. If some disability "impedes a victim from fleeing, fending off attack, recovering from its effect, or otherwise avoid being victimized," such disability is a physical infirmity. State v. Vaught, 318 N.C. 480, 349 S.E.2d 583 (1986). If the evidence shows the victim was targeted because of a physical infirmity or that the defendant took advantage of the infirmity, the aggravating factor is properly found. State v. Thompson, 318 N.C. 395, 348 S.E.2d 798 (1986).
We hold that evidence that a person has a blood alcohol content of .29 percent may be used to prove that the person has a physical disability. If a person has a blood alcohol content of .10 percent while operating a motor vehicle on a street or highway in this state, he may be found guilty of impaired driving. N.C.G.S. 20-138.1 (1983). We believe proof of a blood alcohol content of almost three times this amount supports a finding that a person's ability to flee, fend off an attack, or otherwise avoid being victimized is impaired.
In this case the perpetrators of the crime were in the "drink house" with the victim. It may be inferred from the evidence that he had a blood alcohol content of .29 percent that they knew he was under the influence of alcohol. The court could conclude from this that the defendant and his confederates targeted him for this reason. If the victim was not targeted for being under the influence of alcohol, we believe it is evident that when the attack on him began the attackers took advantage of his physical infirmity. The dissent contends that because of the sudden and powerful nature of the attack the victim's physical condition did not impede his ability to flee or fend off the attack. We believe it is evident that a person who was as much under the influence of alcohol as the victim in this case would have difficulty in seeing the attack develop or defending himself from it. This supports a conclusion that the victim's condition impeded him from fleeing or fending off the attack. This aggravating factor was properly found.
Affirmed.