State v. Benbow

• Decision Date: 03 November 1983
• Docket Number: No. 136A83.,136A83.
• Citation: 308 S.E.2d 647
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Richard BENBOW.

308 S.E.2d 647

STATE of North Carolina v. Richard BENBOW.

No. 136A83.

Supreme Court of North Carolina.

November 3, 1983.

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Rufus L. Edmisten, Atty. Gen. by Robert L. Hillman and John R. Corne, Asst. Attys. Gen., Raleigh, for the State.

Jay D. Hockenbury, Wilmington, for defendant-appellant.

MEYER, Justice.

As the record does not support a finding that the defendant was hired or paid to commit the offense, the trial judge erred in relying on the aggravating factor that the offense was committed for pecuniary gain. State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983); State v. Abdullah, 309 N.C. 63, 306 S.E.2d 100 (1983). Defendant is therefore entitled to resentencing. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).

Defendant next assigns as error the trial court's reliance on the aggravating factor that the offense was especially heinous, atrocious, or cruel. This Court has most recently articulated the standard by which this factor may be found in State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). In Blackwelder, we stated that "the focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense." Id. at ___, 306 S.E.2d at 786. We further stated that it was not "inappropriate in any case to measure the brutality of the crime by the extent of the physical mutilation of the body of the deceased or surviving victim." Id. at___, 306 S.E.2d at 787. The evidence in this case supports a finding that the beating death of Kauno A. Lehto was especially heinous, atrocious, or cruel. The victim's skull was crushed and fractured in several places. The orb of one eye was driven into the brain. In spite of the continued blows to his head and the severity of the wounds, the victim lingered and remained in a semi-conscious state for over twelve hours.

Defendant next contends that the trial court erred in failing to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)d that the defendant was suffering from a mental or physical condition that, while insufficient to constitute a defense, was sufficient to entitle him to the benefit of the mitigating circumstance that his culpability for the offense was substantially reduced. We do not agree. In support of his contention, defendant points to the uncontradicted testimony of Dr. Peter J. Boyle, a clinical psychologist, who indicated that defendant would not understand that as a lookout, he could be held legally responsible for the murder. In other words, argues defendant, while he "could anticipate the consequences of his own acts as a lookout in an armed robbery," he "would be unable, because of a borderline range of mental retardation and low general intellectual function, to comprehend what consequences the actions of Stokes and Murray would have on his life." We do not doubt defendant's inability at the time of the murder to comprehend the full legal implications of his decision to participate in the armed robbery of Kauno A. Lehto. Ignorance of the legal implications of an act, nothing else appearing, however, is not tantamount to a mental condition sufficient to reduce one's culpability. Similarly, defendant contends that the trial court erred in failing to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)j that defendant could not reasonably have foreseen that his conduct could cause or threaten serious harm. Defendant maintains now, as he did when he was first apprehended, that he did not know he was involving himself in anything more than a simple robbery. Again, we do not doubt defendant's sincerity in stating that he failed to understand that his role as a lookout in an armed robbery could possibly result in his personal responsibility for the resulting brutal murder. The test, however, is not what the defendant subjectively does or does not believe, but whether he could reasonably foresee that his conduct would cause harm. Serious bodily injury or death is an omnipresent danger in any armed robbery. The trial judge properly rejected these two factors in mitigation.

Defendant next contends that the trial court erred in failing to find in mitigation that he was a passive participant or played a minor role in the commission of the offense. The evidence would not support a finding of this factor with respect to defendant's participation in the robbery. Defendant clearly played an active role in the planning and execution of the robbery. For sentencing purposes, however, the evidence could support a finding that defendant was a passive participant in the murder for which he was sentenced. Both the defendant and the State stipulated to the following facts: defendant acted as a lookout, he was not present, and he did not participate in the actual bludgeoning of the victim. Defendant's own evidence, as discussed above, indicated that he did not anticipate that a murder would be the result of the plan to rob Mr. Lehto. In fact, defendant testified that it wasn't until the next day that he learned that Mr. Lehto had been as seriously injured as he was. We emphasize that a defendant's liability for a crime, including whether he was the principal offender or an accessory, is determined at the guilt phase of a trial or, as in the case sub judice, by a plea. At sentencing the focus must be on the offender's individual culpability. It is therefore proper at sentencing to consider the defendant's actual role in the offense as opposed to his legal liability for the acts of others. On resentencing the sentencing judge will consider whether defendant has met his burden of proving by a preponderance of the evidence that he was a passive participant in the actual murder. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983).

Finally, defendant assigns as error the trial court's failure to find as a mitigating factor under G.S. § 15A-1340.4(a)(2)n that he has been a person of good character or has a good reputation in the community in which he lives. Defendant's evidence in support of this mitigating factor consisted of the following: Defendant's probation officer testified that after some initial problems, the defendant was complying with the conditions of his probation. He was paying his fine and attending school. He was described by family and friends as being nonviolent. "He didn't fight back." He had completed the tenth grade in school, was well-mannered and respectful, and regularly helped his mother with household chores. He had "a little job at the Housing Authority" to pay his court fine. He spent most of his time at home listening to his music and if he went out at night to visit one of his aunts, he would call his mother and let her know where he was. He was generally truthful and until he was seventeen, attended church regularly with his grandmother. He was, however, susceptible to peer pressure and although his family cautioned him about associating with the wrong people, he continued to see Freddy Stokes and Stokes' sister, Betty, even after Stokes had beaten him severely enough to require hospitalization.

When the defendant in his sentencing hearing produces evidence of his good character in order to take...