{ "id": 2566216, "name": "STATE OF NORTH CAROLINA v. JON LEE BENSON", "name_abbreviation": "State v. Benson", "decision_date": "1988-10-06", "docket_number": "No. 124A86", "first_page": "318", "last_page": "330", "citations": [ { "type": "official", "cite": "323 N.C. 318" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "opinion_index": -1, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "78 L.Ed. 2d 704", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 1004", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6493174 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/1004-01" ] }, { "cite": "78 L.Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "301 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4709664 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0047-01" ] }, { "cite": "305 S.E. 2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763650 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0026-01" ] }, { "cite": "86 L.Ed. 2d 267", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6387653, 6387846, 6387984, 6387541, 6387381 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1120-03", "/us/471/1120-04", "/us/471/1120-05", "/us/471/1120-02", "/us/471/1120-01" ] }, { "cite": "314 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395675 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0632-01" ] }, { "cite": "372 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560587 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0001-01" ] }, { "cite": "100 L.Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217594 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/0367-01" ] }, { "cite": "272 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568158 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0508-01" ] }, { "cite": "259 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "74 L.Ed. 2d 1031", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "459 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6541568, 6541613, 6541774, 6541520 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1189-02", "/us/459/1189-03", "/us/459/1189-04", "/us/459/1189-01" ] }, { "cite": "74 L.Ed. 2d 622", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "367 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "438 U.S. 586", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769215 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/438/0586-01" ] }, { "cite": "84 L.Ed. 2d 369", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "469 U.S. 1230", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12108826, 12108839 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/1230-01", "/us/469/1230-02" ] }, { "cite": "319 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680504 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0489-01" ] }, { "cite": "357 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "313 S.E. 2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2399311 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0608-01" ] }, { "cite": "98 L.Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "358 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "90 L.Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "337 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "286 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "442 U.S. 200", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531819 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0200-01" ] }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "372 S.E. 2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "323 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560587 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/323/0001-01" ] }, { "cite": "100 L.Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217594 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/us/486/0367-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 28439, "ocr_confidence": 0.795, "pagerank": { "raw": 1.7842231219654741e-06, "percentile": 0.9939121933363683 }, "sha256": "70bb37cec0c82137898be48fe1a61b5942d5fc1d2a354f745022416e6af69a0d", "simhash": "1:3229c43b3468ccf7", "word_count": 4717 }, "last_updated": "2023-07-14T15:25:25.148086+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice EXUM joins in this concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JON LEE BENSON" ], "opinions": [ { "text": "MARTIN, Justice.\nDefendant 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.\nThe evidence, stated in summary, showed that on 20 August 1985, Melvin Richard LaVecchia worked as the kitchen manager at Po\u2019 Folks Restaurant in Jacksonville. He was required to make the night deposit of the day\u2019s 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\u2019s 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.\nAbout 9:00 p.m. on 21 August, defendant was arrested on a 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.\nDefendant 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 \u201cfruit of the poisonous tree\u201d under Dunaway v. New York, 442 U.S. 200, 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.\nDuring 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\u2019s order is based upon the voluntariness theory, without mention of the legality of defendant\u2019s arrest.\nNow, 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:\nThe 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. . . .\n... 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.\nId. at 112, 286 S.E. 2d at 539.\nDefendant 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.\nDefendant next argues that the trial judge erred in allowing the state\u2019s challenge for cause of juror Taylor. There is no merit in defendant\u2019s argument. A portion of the voir dire of Mrs. Taylor follows:\nMr. 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?\nMRS. TAYLOR: No, I don\u2019t think so.\nMr. HUDSON: Mrs. Taylor, let me see if I understand you. You\u2019re 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?\nMRS. Taylor: (Indicates negative response.) No.\nMr. HUDSON: You indicated earlier that you could not\u2014 when I asked you, you said you could not come back in the courtroom with a verdict of death.\nMRS. TAYLOR: I did say that. I still feel that way. I just\u2014\nThe 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\u2019ll be able to follow my instructions?\nMrs. Taylor: No, sir.\nThe COURT: And that is because of your personal belief with regard to the death penalty. Is that correct?\nMrs. TAYLOR: Unh-hunh.\nThe COURT: Motion for cause is allowed. Objection is overruled.\nThe above portion of the voir dire is sufficient to sustain the trial judge\u2019s excusal of the juror for cause. Wainwright v. Witt, 469 U.S. 412, 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, 90 L.Ed. 2d 733 (1986). Mrs. Taylor\u2019s 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, --- U.S. ---, 98 L.Ed. 2d 406 (1987).\nLikewise, defendant\u2019s 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\u2019s ruling erroneous. See State v. Whitfield, 310 N.C. 608, 313 S.E. 2d 790 (1984).\nUpon review of the prosecutor\u2019s 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.\nAlthough defendant did not object to any of the prosecutor\u2019s 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.\nThe challenged statement reads:\nUnder 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\u2019s 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 \u2014 getting money. His reason for committing this was to get money. I am sure you can understand why the Legislature sets that out.\nI 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 if a killing occurs; for example, a lot of times it\u2019s in a bank robbery. For example, you shoot somebody. You\u2019re a store clerk; you shoot somebody, or in this case where Mr. LaVecchia went to make this night deposit and he shot him and he was killed, that that can be sufficient to justify the death penalty.\nWe do not find the statement to be so egregious as to require the judge on his own motion to interrupt counsel. The statement was a shorthand statement of the sentencing procedure in a capital case and was basically accurate, although certainly incomplete. One aggravating circumstance can be sufficient to support a recommendation of the death sentence. State v. Zuniga, 320 N.C. 233, 357 S.E. 2d 898 (1987). The statement that the state\u2019s evidence would show that the crime was committed for pecuniary gain was an accurate contention of the state. The reference to killings in barroom brawls and in self-defense, although not pertinent to this case, does not rise to the level that requires the trial judge to address them absent an objection. Last, the reference to armed robbery cases supporting the death penalty is not incorrect. See State v. Gardner, 311 N.C. 489, 319 S.E. 2d 591 (1984), cert. denied, 469 U.S. 1230, 84 L.Ed. 2d 369 (1985). Defendant\u2019s assignment of error is overruled.\nDefendant requested that several nonstatutory mitigating circumstances be submitted to the jury and argues that the denial of his requests was error. We are not persuaded. In order for defendant to succeed on this assignment, he must establish that (1) the nonstatutory mitigating circumstance is one which the jury could reasonably find had mitigating value, and (2) there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury. Upon such showing by the defendant, the failure by the trial judge to submit such nonstatutory mitigating circumstance to the jury for its determination raises federal constitutional issues. Lockett v. Ohio, 438 U.S. 586, 57 L.Ed. 2d 973 (1978). See State v. Wilson, 322 N.C. 117, 367 S.E. 2d 589 (1988). Whether a violation of a defendant\u2019s federal constitutional rights is prejudicial is controlled by N.C.G.S. \u00a7 15A-1443(b). Such violation is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. N.C.G.S. \u00a7 15A-1443(b) (1983). The burden is upon the state to so prove. State v. Wilson, 322 N.C. 117, 367 S.E. 2d 589. Insofar as State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056, 74 L.Ed. 2d 622 (1982), reh'g denied, 459 U.S. 1189, 74 L.Ed. 2d 1031 (1983), is in conflict with the standard we adopt today for the review of the failure of the trial judge to submit nonstatutory mitigating circumstances, it is overruled.\nIn applying this standard to defendant\u2019s request, we find no error. Briefly, the record shows that the evidence did not support the circumstance that defendant had no prior history of assaultive behavior. To the contrary, it disclosed that defendant had been engaged in prior assaultive actions. With respect to the circumstance of no violence toward others since his arrest, defendant failed to produce sufficient evidence to support this circumstance. Defendant\u2019s witness Dr. Stack only testified as to defendant\u2019s behavior during his four visits with defendant in jail. Defendant was in jail for about five months.\nDefendant failed to produce any evidence that he had not fired a gun at anyone prior to the murder. Defendant\u2019s evidence was that he was \u201cvery gentle,\u201d had \u201cno meanness in him,\u201d and was never involved in fights (there was contra evidence). One who is \u201cvery gentle,\u201d \u201chas no meanness,\u201d and never fights could still discharge a firearm at another person under any number of varying circumstances.\nThe trial judge properly refused to submit as a mitigating circumstance that the crime was out of character for defendant. The evidence that might support this circumstance did not include defendant\u2019s character and behavior between 1980, when he joined the Marines, and 1985, when the offenses occurred.\nThe trial judge properly refused to submit the mitigating circumstance that defendant had adjusted well to jail life. The trial judge noted that there was no evidence to support the proposed circumstance and called upon defendant\u2019s counsel to point out the evidence supporting it. Defendant\u2019s counsel replied that he did not want to be heard.\nThe refusal of the trial judge to submit as a mitigating circumstance that defendant did not resist arrest was not error. The trial judge submitted as mitigating circumstances that defendant cooperated with the police upon his arrest, that he voluntarily confessed, and that he voluntarily agreed to searches of his car, motel room, home, and storage bin. The proposed circumstance was subsumed in these mitigating circumstances.\nNext, defendant argues that the prosecutor\u2019s closing argument was improper. Defendant made no objection to this argument. We have carefully examined the challenged argument, and especially the five specific portions raised in defendant\u2019s brief, and do not find that the argument was so grossly egregious that the trial judge was required to interrupt counsel absent an appropriate objection. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).\nDefendant\u2019s argument that the trial judge failed to exercise his discretion in denying the jury\u2019s request for portions of the transcript is without merit. The transcript reveals that three times the trial judge stated he was denying the request in the exercise of his discretion. He even referred to the appropriate statute, N.C.G.S. \u00a7 15A-1233. See State v. Lang, 301 N.C. 508, 272 S.E. 2d 123 (1980).\nDefendant also raises for \u201cpreservation\u201d the following nine issues: (1) constitutionality of pecuniary gain as an aggravating circumstance, (2) unanimity of jury verdict, form and weighing of issues, (3) constitutionality of N.C.G.S. \u00a7 15A-2000, (4) denial of defendant\u2019s motion for bill of particulars requesting state to specify aggravating circumstances it intends to rely upon, (5) lack of cross-section of community on trial jury, (6) state\u2019s challenge to juror because she was not a citizen, (7) denial of defendant\u2019s request to instruct jury that defendant will receive life if jury is unable to agree, (8) requiring defendant to prove existence of mitigating circumstances, and (9) requirement of unanimity of the jury in finding mitigating circumstances. Defendant concedes that each of these issues has been resolved by this Court contrary to defendant\u2019s arguments. Defendant has failed to persuade us that we should abandon our prior holdings as to the first eight of these issues and further discussion of them is not required.\nHowever, as to the requirement of unanimity of the jury in finding mitigating circumstances, defendant contends that the recent decision of the United States Supreme Court in Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), entitles him to at least a new sentencing hearing. This Court, in conference, determined that there should be additional briefing and argument in this case and all other cases presently before this Court with respect to the issues raised by Mills v. Maryland. Oral argument was heard on 22 August 1988. For the reasons expressed in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988), we reject defendant\u2019s argument based upon Mills v. Maryland.\nWhile we find that the recommendation of the death sentence by the jury was not arbitrary or capricious, we do conclude the death sentence to be disproportionate under all the facts and circumstances of this case. The process that this Court follows in carrying out its statutorily mandated duty on proportionality review is now well settled in the law and it would serve no useful purpose to repeat it here. See generally State v. Lawson, 310 N.C. 632, 314 S.E. 2d 493 (1984), cert. denied, 471 U.S. 1120, 86 L.Ed. 2d 267 (1985); State v. Jackson, 309 N.C. 26, 305 S.E. 2d 703 (1983); State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh\u2019g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983).\nThe murder in this case does not rise to the level of those murder cases in which we have approved the death sentence upon proportionality review. This case is distinguished by the following: the conviction is based solely upon the felony murder theory; it has only one aggravating circumstance, pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6); the jury found as mitigating circumstances that defendant had no significant history of prior criminal activity, N.C.G.S. \u00a7 15A-2000(f)(l), that defendant was under the influence of mental or emotional disturbance, N.C.G.S. \u00a7 15A-2000 (f)(2), that he confessed and cooperated upon arrest, that he voluntarily consented to a search of his motel room, car, home, and storage bin, and that he was abandoned by his natural mother at an early age. Defendant also pleaded guilty during the trial and acknowledged his wrongdoing before the jury.\nApproximately fifty-one robbery-murder cases are in the pool. Of these, life sentences have been imposed in forty-four cases and death sentences in seven. In five of these robbery-murder cases, the only aggravating circumstance was pecuniary gain. Life sentences were imposed in four of the five. The fifth case, State v. Jackson, 309 N.C. 26, 305 S.E. 2d 703, is the single case, other than the present appeal, in which the jury returned a death recommendation where the only aggravating circumstance was pecuniary gain. On appeal that death sentence was found to be disproportionate. Here, the mitigating circumstances are stronger than in Jackson, where only \u201cno significant history of prior criminal activity\u201d was found.\nIn the robbery-murder cases where the death sentence has been upheld, all but two involved multiple killings. Of those two, one involved the shooting of a second victim and one involved the kidnapping of the female victim. The case at issue cannot be equated with the robbery-murder convictions where the death sentence was upheld. From the evidence it appears that Benson intended only to rob; he fired at Mr. LaVecchia\u2019s legs rather than a more vital part of his body.\nCertainly, this murder for profit was an outrageous crime, but when compared to the other similar cases in the proportionality pool, we cannot say that this death sentence is not disproportionate. We therefore hold as a matter of law that the death sentence imposed in this case is disproportionate within the meaning of N.C.G.S. \u00a7 15A-2000(d)(2). Upon this holding, the statute requires that this Court sentence defendant to life imprisonment in lieu of the death sentence. The language of the statute is mandatory. This Court has no discretion in determining whether a death sentence should be vacated. State v. Jackson, 309 N.C. 26, 305 S.E. 2d 703. The death sentence is vacated and defendant is hereby sentenced to imprisonment in the state\u2019s prison for the remainder of his natural life. The defendant is entitled to credit for days spent in confinement prior to the date of this opinion. The Clerk of the Superior Court of Onslow County shall issue a commitment accordingly.\nDeath sentence vacated and sentence of life imprisonment imposed.\n. This Court abandoned the Pinch test with respect to statutory mitigating circumstances because due process constitutional issues are involved and, as to constitutional issues, the Pinch test impermissibly shifts the burden of proof to the defendant. State v. Wilson, 322 N.C. 117, 367 S.E. 2d 589 (1988).", "type": "majority", "author": "MARTIN, Justice." }, { "text": "Justice FRYE\nconcurring in result.\nThe Court rejects defendant\u2019s argument based upon Mills v. Maryland, 486 U.S. ---, 100 L.Ed. 2d 384 (1988), for the reasons expressed by the majority of this Court in State v. McKoy, 323 N.C. 1, 372 S.E. 2d 12 (1988). I did not join the Court\u2019s decision in McKoy and I believe that it was wrongly decided. I therefore do not agree with the majority\u2019s rejection of defendant\u2019s argument based on the Mills issues for \u201cthe reasons expressed in State v. McKoy.\u201d I do agree with the Court\u2019s conclusion that this case does not rise to the level of those murder cases in which we have approved the death sentence upon proportionality review. Therefore, I concur with the majority in vacating the death sentence and sentencing defendant to life imprisonment.\nChief Justice EXUM joins in this concurring opinion.", "type": "concurrence", "author": "Justice FRYE" } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, Christopher P. Brewer, Special Deputy Attorney General, William P. Hart, Assistant Attorney General, James J. Coman, Senior Deputy Attorney General, William N. Farrell, Jr., Special Deputy Attorney General, Joan H. Byers, Special Deputy Attorney General, and Barry S. McNeill, Assistant Attorney General, for the state.", "Geoffrey C. Mangum, Malcolm Ray Hunter, Jr., Appellate Defender, and Louis D. Bilionis, Assistant Appellate Defender, for defendant.", "E. Ann Christian and Robert E. Zaytoun, for The North Carolina Academy of Trial Lawyers, and John A. Dusenbury, Jr., for the North Carolina Association of Black Lawyers, amici curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JON LEE BENSON\nNo. 124A86\n(Filed 6 October 1988)\n1. Criminal Law \u00a7 76.10\u2014 attack on'confession \u2014 theory not used at trial\nThe issue of illegal arrest was not timely raised in a first degree murder prosecution where defendant did not rely upon unlawful arrest as a basis for his motion at trial to suppress his confession, it was not mentioned or argued to the trial judge, and the trial judge\u2019s order is based upon the voluntariness theory without mention of the illegality of defendant\u2019s arrest; defendant may not swap horses after trial in order to obtain a thoroughbred on appeal.\n2. Jury 8 7.11\u2014 ambivalence toward death penalty \u2014 juror challenged for cause-no error\nThe trial judge did not err in allowing the State to challenge a juror for cause in a first degree murder prosecution where the juror\u2019s responses may have demonstrated an ambivalence toward the death penalty but also clearly indicated that she was unwilling or unable to follow the law and her oath.\n3. Jury 8 7.10\u2014 juror familiar with witnesses \u2014 denial of challenge for cause \u2014 no error\nThe trial court did not err in a prosecution for first degree murder by denying defendant\u2019s challenge for cause of a juror who knew four of the police officers who were prospective witnesses for the State where, although defendant searched diligently during voir dire to discover some indication that the juror would be partial to those witnesses, the juror unequivocally stated repeatedly that his acquaintance with the officers would not affect his verdict in any way, and there was no evidence to the contrary.\n4. Criminal Law 8 102.6\u2014 opening argument \u2014 no intervention ex mero motu \u2014 no error\nThe trial court did not err in a first degree murder prosecution by not intervening ex mero motu in the prosecutor's opening argument where the argument was a shorthand statement of the sentencing procedure in a capital case and was basically accurate, although incomplete.\n5. Criminal Law 8 135.9\u2014 nonstatutory mitigating factors \u2014 Pinch test abandoned \u2014failure to submit nonstatutory mitigating factors \u2014 no error\nIn order for a defendant to succeed upon an assignment of error as to the failure to submit nonstatutory mitigating factors, the defendant must establish that the nonstatutory mitigating circumstance is one which the jury could reasonably find had mitigating value and that there is sufficient evidence of the existence of the circumstance to require it to be submitted to the jury; the failure by the trial judge to submit such nonstatutory mitigating circumstance raises federal constitutional issues and the burden is upon the State to prove that such violation was harmless beyond a reasonable doubt. State v. Pinch, 306 N.C. 1, is overruled to the extent that it is in conflict with this standard. The trial court here did not err by failing to submit nonstatutory mitigating factors because the evidence did not support the factors or the factor was subsumed in mitigating circumstances which were submitted.\n6. Criminal Law \u00a7 102.6\u2014 first degree murder \u2014 prosecutor\u2019s closing argument\u2014 no intervention ex mero motu\nThe prosecutor\u2019s closing argument in a prosecution for first degree murder was not so grossly egregious that the trial judge was required to interrupt the counsel absent an appropriate objection.\n7. Criminal Law \u00a7 101.4\u2014 jury\u2019s request for transcript \u2014 denied\u2014no abuse of discretion\nThe trial judge did not abuse its discretion in a first degree murder prosecution by denying the jury\u2019s request for portions of the transcript. N.C.G.S. \u00a7 15A-1233.\n8. Criminal Law \u00a7\u00a7 135.7, 135.8\u2014 first degree murder \u2014 preservation of issues regarding aggravating circumstances\nThe Supreme Court in a first degree murder prosecution declined to abandon its prior holdings on the constitutionality of pecuniary gain as an aggravating circumstance; the denial of defendant\u2019s motion for a bill of particulars requesting the State to specify aggravating circumstances upon which it intended to rely; and the denial of defendant\u2019s request to instruct the jury that defendant would receive life if the jury was unable to agree.\n9. Criminal Law \u00a7 126; Jury \u00a7\u00a7 7.1, 7.8\u2014 first degree murder \u2014 preservation of jury issues\nThe Supreme Court in a first degree murder prosecution declined to abandon its prior holdings on unanimity of jury verdict, form, and weighing of issues; lack of a cross section of the community on the trial jury; and the State\u2019s challenge to a juror because she was not a citizen.\n10. Criminal Law \u00a7\u00a7 135, 135.9\u2014 first degree murder \u2014 preservation of issues\nThe Supreme Court, in a first degree murder prosecution, declined to abandon its prior holdings regarding the constitutionality of N.C.G.S. \u00a7 15A-2000 and on requiring defendant to prove the existence of mitigating circumstances.\n11. Criminal Law \u00a7 135.9\u2014 first degree murder \u2014 mitigating circumstances \u2014 Mills argument rejected\nDefendant\u2019s argument as to the requirement of unanimity of the jury in finding mitigating circumstances in a murder prosecution was rejected.\n12. Criminal Law \u00a7 135.10\u2014 first degree murder \u2014 death sentence \u2014 disproportionate\nAlthough the recommendation of the death sentence in a first degree murder prosecution was not arbitrary or capricious, it was disproportionate where the conviction was based solely on the felony murder theory; there was only one aggravating, factor, pecuniary gain; the jury found as mitigating factors that defendant had no significant history of prior criminal activity, that defendant was under the influence of mental or emotional disturbance, that defendant confessed and cooperated upon arrest, that he voluntarily consented to a search of his motel room, car, home, and storage bin, and that he was abandoned by his natural mother at an early age; and defendant pled guilty during the trial and acknowledged his wrongdoing to the jury. N.C.G.S. \u00a7 15A-2000(d)(2).\nJustice Frye concurring in the result.\nChief Justice Exum joins in this concurring opinion.\nAppeal by defendant from judgment of death on his plea of guilty of murder in the first degree, imposed by Watts, J., at the 6 January 1986 session of Superior Court, Onslow County. Heard in the Supreme Court 16 March 1988 and 22 August 1988.\nLacy H. Thornburg, Attorney General, Christopher P. Brewer, Special Deputy Attorney General, William P. Hart, Assistant Attorney General, James J. Coman, Senior Deputy Attorney General, William N. Farrell, Jr., Special Deputy Attorney General, Joan H. Byers, Special Deputy Attorney General, and Barry S. McNeill, Assistant Attorney General, for the state.\nGeoffrey C. Mangum, Malcolm Ray Hunter, Jr., Appellate Defender, and Louis D. Bilionis, Assistant Appellate Defender, for defendant.\nE. Ann Christian and Robert E. Zaytoun, for The North Carolina Academy of Trial Lawyers, and John A. Dusenbury, Jr., for the North Carolina Association of Black Lawyers, amici curiae." }, "file_name": "0318-01", "first_page_order": 350, "last_page_order": 362 }