State v. Benson

• Decision Date: 06 October 1988
• Docket Number: No. 124A86,124A86
• Citation: 372 S.E.2d 517,323 N.C. 318
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jon Lee BENSON.

Page 517

372 S.E.2d 517

323 N.C. 318

STATE of North Carolina v. Jon Lee BENSON.

No. 124A86.

Supreme Court of North Carolina.

Oct. 6, 1988.

Lacy H. Thornburg, Atty. Gen., Christopher P. Brewer, Sp. Deputy Atty. Gen., William P. Hart, Asst. Atty. Gen., James J. Coman, Sr. Deputy Atty. Gen., William N. Farrell, Jr., Joan H. Byers, Sp. Deputy Attys. Gen., and Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the state.

Geoffrey C. Mangum, Malcolm Ray Hunter, Jr., Appellate Defender, and Louis D. Bilionis, Asst. Appellate Defender, Winston-Salem for defendant.

E. Ann Christian and Robert E. Zaytoun, Raleigh, for The North Carolina Academy of Trial Lawyers, amici curiae.

John A. Dusenbury, Jr., Asheville, for the North Carolina Ass'n of Black Lawyers, amici curiae.

MARTIN, Justice.

Defendant entered pleas of guilty to armed robbery and to murder in the first degree based upon the felony murder doctrine. After a sentencing hearing, defendant was sentenced to death on the murder charge, and judgment was arrested on the armed robbery charge. We determine the sentence of death to be disproportionate and therefore sentence defendant to life imprisonment.

The evidence, stated in summary, showed that on 20 August 1985, Melvin Richard LaVecchia worked as the kitchen manager at Po' Folks Restaurant in Jacksonville. He was required to make the night deposit of the day's receipts at Peoples Bank on Western Boulevard in Jacksonville. Defendant was acquainted with the routine followed by Mr. LaVecchia in making the nightly deposits. Armed with a shotgun, defendant went to the Peoples Bank to await the arrival of Mr. LaVecchia. He hid in the bushes at the bank for about two hours and then drove to the restaurant to determine whether Mr. LaVecchia was still there. Upon seeing Mr. LaVecchia's car, defendant returned to his hiding place at the bank. Thereafter, about 1:25 a.m., Mr. LaVecchia arrived at the bank. He left his car and proceeded toward the night deposit box where he was accosted by defendant who demanded the moneybag. When Mr. LaVecchia hesitated, defendant fired the shotgun, striking him in the upper portion of both legs. As he fell, defendant grabbed the moneybag and ran to his car. Shortly thereafter, a police officer discovered Mr. LaVecchia and had him removed to the hospital, where he later died of cardiac arrest caused by the loss of blood from the shotgun wounds.

About 9:00 p.m. on 21 August, defendant was arrested on an arrest warrant charging him with felonious breaking and entering of an automobile. After being properly advised as to his constitutional rights, defendant confessed to the murder and consented to a search of his motel room, where the shotgun was seized.

Defendant first argues that the trial judge erred in denying his motion to suppress his confession and other evidence, on the ground that it was obtained as a result of an unlawful arrest and thereby is the "fruit of the poisonous tree" under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). This alleged error is based upon a written pretrial motion to suppress. Defendant did not rely upon unlawful arrest as a basis for his motion. It was not mentioned or argued to the trial judge. The motion to suppress specifically states the grounds for the motion, and unlawful arrest is not one of them.

During the voir dire hearing on the motion to suppress, reference to the arrest warrant was repeatedly made, and defendant never objected or gave any indication that the legality of the arrest would be challenged upon appeal. The trial judge's order is based upon the voluntariness theory, without mention of the legality of defendant's arrest.

Now, on appeal, defendant for the first time attempts to raise the issue of his arrest as a basis to overturn the ruling of the trial judge. This he cannot do. State v. Hunter, 305 N.C. 106, 286 S.E.2d 535 (1982). What we said in Hunter controls this case:

The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions. Further, a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal....

....

... In order to clarify any misunderstanding about the duty of counsel in these matters, we specifically hold that when there is an objection to the admission of a confession or a motion to suppress a confession, counsel must specifically state to the court before voir dire evidence is received the basis for his motion to suppress or for his objection to the admission of the evidence.

Id. at 112, 286 S.E.2d at 539.

Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal. Weil v. Herring, 207 N.C. 6, 175 S.E. 836 (1934). The issue of illegal arrest was not timely raised in this case.

Defendant next argues that the trial judge erred in allowing the state's challenge for cause of juror Taylor. There is not merit in defendant's argument. A portion of the voir dire of Mrs. Taylor follows:

MR. HUDSON: Okay. Then I assume by your answer that if you are selected to serve as a juror in this case and we do get to the second phase, which is the penalty phase, if we do get into that and you go back in the Jury Room to deliberate after you have heard the evidence, the arguments from the attorneys, the instructions from the Judge, you could go back into the Jury Room to deliberate the second phase and you are convinced beyond a reasonable doubt that the appropriate penalty is the death penalty, could you come back in here and bring such a verdict?

MRS. TAYLOR: No, I don't think so.

....

MR. HUDSON: Mrs. Taylor, let me see if I understand you. You're saying that in this case, based on your beliefs, that under no circumstances you could return a verdict meaning the imposition of the death penalty?

MRS. TAYLOR: (Indicates negative response.) No.

....

MR. HUDSON: You indicated earlier that you could not--when I asked you, you said you could not come back in the courtroom with a verdict of death.

MRS. TAYLOR: I did say that. I still feel that way. I just--

....

THE COURT: Mrs. Taylor, if we were to reach the punishment stage of the trial; that is, after the defendant had been found guilty of first degree murder; if the jury so found it, the question is can and will you follow the law of North Carolina as to the sentence recommendations as I instruct you upon? Do you think you'll be able to follow my instructions?

MRS. TAYLOR: No, sir.

THE COURT: And that is because of your personal belief with regard to the death penalty. Is that correct?

MRS. TAYLOR: Unh-hunh.

THE COURT: Motion for cause is allowed. Objection is overruled.

The above portion of the voir dire is sufficient to sustain the trial judge's excusal of the juror for cause. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2293, 90 L.Ed.2d 733 (1986). Mrs. Taylor's responses to the trial judge clearly indicate that she was unwilling or unable to follow the law and her oath. Although her testimony may also have demonstrated an ambivalence toward the death penalty, she was properly excused because her testimony clearly showed her inability to follow the law. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987).

Likewise, defendant's contention that the trial judge erred in denying his challenge for cause to juror Marshburn is without merit. This juror knew four of the police officers who were prospective witnesses for the state. Although the defendant searched diligently during voir dire to discover some indication that the juror would be partial to these witnesses, the juror unequivocally stated repeatedly that his acquaintance with them would not affect his verdict in any way. There was no evidence to the contrary. There being no showing of prejudice on the part of juror Marshburn, we hold that his mere acquaintance with the officers is insufficient to find the trial judge's ruling erroneous. See State v. Whitfield, 310 N.C. 608, 313 S.E.2d 790 (1984).

Upon review of the prosecutor's opening statement, we find no prejudicial error. Before the opening statements commenced, the trial judge cautioned the jury that the statements were only forecasts of what counsel intended to prove and were not evidence and should not be considered as evidence by the jury.

Although defendant did not object to any of the prosecutor's opening statement, he now contends that in four respects it was so grossly egregious that the trial judge should have interrupted counsel ex mero motu. We cannot agree.

The challenged statement reads:

Under the law, before a death penalty can be imposed, our Legislature and our court has said there must be the presence of at least one aggravating factor among several that is set out in our statutes. If there is one aggravating factor that is present that is set out in our statute, then our court and our Legislature says that that is sufficient to justify a death sentence. Of course, there are a number of things set out. The aggravating factor that the State's evidence will show is present in this case is the factor that the offense was committed for pecuniary gain, and the Judge will give you some more instructions on it, but that this act was committed for pecuniary gain. That is, it was committed for the purpose of getting robbery--getting money. His reason for committing this was to get money. I am sure you can understand why the Legislature sets that out.

I mean, obviously, if you have got a killing in a Saturday night barroom brawl, that might not be something that would justify the death penalty or if somebody shot somebody in self-defense, that might not be something that would justify the death penalty. But the court has said, and our Legislature has said, that...