{
  "id": 8526480,
  "name": "STATE OF NORTH CAROLINA v. CLICK LONZO BENNETT",
  "name_abbreviation": "State v. Bennett",
  "decision_date": "1984-04-03",
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    "judges": [
      "Judges Hill and Johnson concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CLICK LONZO BENNETT"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant first assigns error to the court\u2019s refusal to instruct the jury \u201cconcerning a defendant\u2019s lack of obligation to retreat when he is assaulted in his own home.\u201d Defendant relies on cases in which the appellate courts of this State have found reversible error in the refusal of the trial court to give the requested instruction when raised by the evidence. See State v. Frizzelle, 243 N.C. 49, 89 S.E. 2d 725 (1955); State v. Pearson, 288 N.C. 34, 215 S.E. 2d 598 (1975); State v. Browning, 28 N.C. App. 376, 221 S.E. 2d 375 (1976). Defendant fails to note, however, the equally well-settled requirement that the defendant be \u201cfree from fault in bringing on a difficulty.\u201d Frizzelle, 243 N.C. at 51, 89 S.E. 2d at 727; Pearson, 288 N.C. at 42, 215 S.E. 2d at 603; Browning, 28 N.C. App. at 378, 221 S.E. 2d at 377. In the instant case defendant\u2019s own testimony was that he responded to his daughter\u2019s verbal aggression by attempting to slap her. Because defendant\u2019s own evidence shows that he was the first person to resort to physical force, we cannot say the evidence shows that defendant \u201cwas free from fault in bringing on [the] difficulty.\u201d It follows that he was not entitled to an instruction on his \u201clack of obligation to retreat when he is assaulted in his own home.\u201d The assignment of error is overruled.\nDefendant next contends that the court erred in failing to instruct the jury \u201cthat it could find the defendant guilty of voluntary manslaughter on the basis of imperfect self-defense\u201d where there was \u201csubstantial evidence from which the jury could infer that defendant used excessive force or that he was the initial aggressor.\u201d\nBefore discussing the merits of defendant\u2019s argument, we must first consider whether he has properly preserved the question for appellate review. Rule 10(b)(2), North Carolina Rules of Appellate Procedure, provides in pertinent part:\nNo party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection. . . .\nIn the instant case, defendant submitted a handwritten list of requested instructions, Item No. 5 of which stated: \u201cInstruct on voluntary manslaughter, involuntary manslaughter and self-defense.\u201d The record shows that Judge Lamm \u201callowed\u201d defendant\u2019s request for instructions under Item 5 and in fact instructed on each of the three topics listed. After Judge Lamm instructed the jury, he inquired as to whether counsel had \u201cspecific requests or corrections or additions to the charge.\u201d The record shows that defense counsel then asked \u201cto preserve any differences\u201d between the charge given and \u201cthe written request . . . previously submitted.\u201d Defendant now concedes that \u201cthe instruction as requested could have been more clearly stated\u201d but asks that this Court view the requested instruction and subsequent \u201cpreservation of differences\u201d as sufficient compliance with Rule 10(b)(2). This we cannot do. Rule 10(b)(2) is clear in its requirement that counsel \u201cstat[e] distinctly that to which he objects.\u201d It is well acknowledged that the purpose of the Rule is \u201cto encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E. 2d 375, 378 (1983). To find, as defendant requests, sufficient compliance with Rule 10(b)(2) on these facts would frustrate the purpose of the Rule. Our decision in this regard is bolstered by the fact that Judge Lamm \u201callowed\u201d defendant\u2019s request for this instruction, according to his notes in the margin, and proceeded to instruct on the three topics listed. It thus seems likely that the court did not understand defendant\u2019s request to be one for instruction on imperfect self-defense as it relates to voluntary manslaughter.\nDefendant asks in the alternative that we \u201cfind the failure of the trial court to give an instruction on imperfect self-defense to be plain error.\u201d The so-called \u201cplain .error\u201d rule was adopted by our Supreme Court in State v. Odom, in acknowledgment of \u201cthe potential harshness of Rule 10(b)(2).\u201d Id. \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Id. at 661, 300 S.E. 2d at 378-79. We thus turn our attention to \u201cthe whole record.\u201d\nThe evidence presented by the State in the instant case suggested that defendant had an altercation with his teenage daughter which led to his threatening her and then firing at her with a semi-automatic rifle. Maggie Bennett was shot three times and Clissie Gaddy was shot twice. None of the victims were armed. Testimony by Carol indicating that defendant did not act in self-defense was corroborated by Christopher Gaddy, a nine-year-old child, who witnessed the incident.\nDefendant testified that he acted in self-defense, and he introduced statements made by him after the incident that were consistent with his trial testimony. Family members and neighbors testified that defendant had a good reputation in the community. Defendant\u2019s character and credibility were significantly impeached, however, by evidence that he shot a man with a twenty-two caliber pistol in 1970, that he pleaded guilty to assault on a female, his wife, in 1972, that he was convicted of carrying a concealed weapon in 1977, and that he \u201cpaid the costs of court\u201d in a case involving assault and battery on his daughter in 1977. Our examination of all the evidence leads us to conclude that the instructional error complained of cannot be said to have \u201chad a probable impact on the jury\u2019s finding of guilt.\u201d This assignment of error is thus overruled.\nBy Assignment of Error No. 5 defendant contends:\nThe court erred in excluding the testimony of Drs. Brad-bard and Rose concerning the existence and likely effect of defendant\u2019s organic brain damage on his perceptions and conduct on the day of the shooting, because this evidence was admissible and relevant to the issue of whether defendant was, in fact, motivated by a reasonable apprehension of death or great bodily harm when he fired his rifle at Carol Bennett.\nThe record shows that defendant offered into evidence the testimony of Dr. Steven Bradbard, a clinical psychologist, and Dr. Selwyn Rose, a psychiatrist, concerning the results of psychiatric and psychological evaluations performed on defendant. When the State objected to admission of this testimony, the court conducted a voir dire and then ruled the testimony inadmissible based on its finding that the offered evidence was \u201cnot competent or relevant at the guilt phase of a trial of these matters.\u201d\nDefendant contends the offered evidence was both competent and relevant because it tends to show \u201cthat under the facts, as he describes them, on October 4, 1981, he would be likely to perceive and act in a straight forward and uncomplicated fashion.\u201d Defendant goes on to say:\nDefendant\u2019s position was not that his culpability should be reduced because he lacked the intelligence to fully appreciate the criminality of his act. To the contrary, defendant was attempting to prove that he was confronted by an apparently life threatening situation on the day in question, that he perceived it as such, and that his act of force was, in fact, motivated by that perception.\n\u201c[E]vidence is relevant if it has any logical tendency to prove a fact at issue in a case.\u201d State v. Pate, 40 N.C. App. 580, 585, 253 S.E. 2d 266, 270, cert. denied, 297 N.C. 616, 257 S.E. 2d 222 (1979). We agree with the trial court that the offered evidence had no tendency to prove a fact at issue in the case. The State introduced no evidence calling into question defendant\u2019s ability to accurately perceive a life-threatening situation. Indeed, the State\u2019s position was that the evidence tended to show that defendant was never confronted with such a life-threatening situation, and that his actions were unprovoked. Because no issue had been raised by the evidence as to defendant\u2019s normalcy, we believe defendant was not entitled to introduce expert testimony tending only to show that he possesses the ability to perceive accurately and behave accordingly. We thus hold the assignment of error to be without merit.\nDefendant\u2019s final contention is that the court erred in allowing the State to \u201cdeath qualify\u201d the jury. Defendant acknowledges that our Supreme Court \u201chas consistently and recently rejected the claim\u201d that this procedure violates the constitutional rights of criminal defendants. State v. Avery, 299 N.C. 126, 261 S.E. 2d 803 (1980); State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203 (1982). We find these cases dispositive of the issue and overrule the assignment of error.\nNo error.\nJudges Hill and Johnson concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorney General Richard H. Carlton and Associate Attorney Victor H. E. Morgan, Jr., for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender David W. Dorey, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CLICK LONZO BENNETT\nNo. 8320SC1018\n(Filed 3 April 1984)\n1. Homicide \u00a7 28.4\u2014 lack of duty to retreat in own home \u2014 failure to instruct \u2014 defendant as aggressor\nThe trial court in a homicide and assault case did not err in failing to instruct on defendant\u2019s \u201clack of obligation to retreat when he is assaulted in his own home\u201d where defendant\u2019s own evidence showed that he was the first person to resort to physical force and that he was thus not free from fault in bringing on the difficulty.\n2. Criminal Law \u00a7 163.1\u2014 insufficient objection to failure to charge\nDefense counsel failed to \u201cstate distinctly that to which he objects\u201d within the meaning of App. Rule 10(b)(2) so as to preserve for appellate review the trial court\u2019s failure to instruct that defendant could be found guilty of voluntary manslaughter on the basis of imperfect self-defense where defendant submitted a handwritten request that the court instruct \u201con voluntary manslaughter, involuntary manslaughter and self-defense,\u201d the trial court allowed the request and instructed on each of the three topics listed, the trial court inquired as to whether counsel had specific requests or corrections or additions to the charge, and defense counsel then asked \u201cto preserve any differences\u201d between the charge given and his written request.\n3. Criminal Law \u00a7 163\u2014 failure to instruct on imperfect self-defense \u2014 no plain error\nThe trial court\u2019s failure in a homicide case to instruct on imperfect self-defense did not constitute \u201cplain error\u201d where an examination of all the evidence leads to the conclusion that such error could not have had a probable impact on the jury\u2019s finding of guilt.\n4. Homicide \u00a7 19\u2014 ability to perceive life threatening situation \u2014 exclusion of expert testimony\nThe trial court in a homicide and assault case did not err in excluding expert psychiatric testimony offered by defendant to show that he possessed the ability to perceive accurately a life threatening situation where the State\u2019s evidence tended to show that defendant was never confronted with such a situation and that his actions were unprovoked, no issue was raised by the evidence as to defendant\u2019s normalcy, and the evidence thus had no tendency to prove a fact at issue in the case.\n5. Constitutional Law \u00a7 63\u2014 procedure of \u201cdeath qualifying\u201d jury \u2014 constitutionality\nThe procedure of \u201cdeath qualifying\u201d the jury did not violate defendant\u2019s constitutional rights.\nAPPEAL by defendant from Lamm, Judge. Judgment entered 5 March 1982 in Superior Court, ANSON County. Heard in the Court of Appeals 15 March 1984.\nDefendant was charged in proper bills of indictment with the murder of Maggie Lee Bennett, his wife, the murder of Clissie B. Gaddy, his daughter, and with assault with a deadly weapon with intent to kill inflicting serious injuries on Carol Bennett, his daughter. At trial the State presented evidence tending to show the following:\nDefendant and his wife had an argument on the afternoon of 4 October 1981, the day of the incident. Carol noticed a cut on her mother\u2019s face and loudly stated, \u201cI don\u2019t want nobody to touch my momma.\u201d Defendant then \u201cstarted at\u201d her and, when Clissie pushed him away, told Carol he was going to \u201cblow [her] brain out\u201d and left the room. When defendant returned, he carried a .22 caliber rifle, pointed it at his daughters and began to fire. Carol, hit in the upper lip by the second shot, was pushed out the door by her sister and ran to a neighbor\u2019s house. As Carol left the house, she heard a third shot and saw Clissie fall. Seven shots were fired in all. When police arrived at the scene, they found the bodies of Clissie Gaddy and Maggie Bennett. Clissie had been shot twice and Maggie three times.\nDefendant offered evidence tending to show that he had \u201cdiscipline problems\u201d with Carol, that his sixteen-year-old daughter was difficult to control and subject to \u201cspells [when] she was just like the devil,\u201d and that Carol had threatened him with a knife approximately two weeks prior to the incident. On 4 October 1981 Carol became upset when her father told her not to \u201cmess with [his] food,\u201d and an argument ensued. Defendant \u201cslapped at\u201d Carol, who then went into her bedroom. Carol came back into the room holding a knife and told defendant she was going to kill him. As she approached, defendant picked up a rifle and fired. Defendant testified that he acted in fear of Carol, that he had no intention of shooting Maggie or Clissie, and that he did not know how many times he fired or what he hit. He also testified that his daughter Carol was strong, that he was disabled by asthma and hypertension, and that he was afraid of her.\nDefendant was found guilty of the second degree murders of Maggie Bennett and Clissie Gaddy and of assault with a deadly weapon inflicting serious injury on Carol Bennett. After a sentencing hearing the trial judge found aggravating and mitigating factors and, upon a finding that factors in mitigation outweighed factors in aggravation, imposed prison sentences of 2 years in the case wherein defendant was found guilty of assault with a deadly weapon inflicting serious injury, 13 years in the case wherein defendant was found guilty of the second degree murder of his daughter, and 13 years in the case wherein defendant was found guilty of the second degree murder of his wife, the sentences to run consecutively. The sentence imposed in each case was less than the statutory presumptive term. Defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Richard H. Carlton and Associate Attorney Victor H. E. Morgan, Jr., for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender David W. Dorey, for defendant, appellant."
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