State v. Bennett

313 S.E.2d 277, 67 N.C. App. 407, 1984 N.C. App. LEXIS 3073
CourtCourt of Appeals of North Carolina
DecidedApril 3, 1984
DocketNo. 8320SC1018
StatusPublished
Cited by1 cases

This text of 313 S.E.2d 277 (State v. Bennett) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bennett, 313 S.E.2d 277, 67 N.C. App. 407, 1984 N.C. App. LEXIS 3073 (N.C. Ct. App. 1984).

Opinion

HEDRICK, Judge.

Defendant first assigns error to the court’s refusal to instruct the jury “concerning a defendant’s lack of obligation to retreat when he is assaulted in his own home.” 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 “free from fault in bringing on a difficulty.” 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’s own testimony was that he responded to his daughter’s verbal aggression by attempting to slap her. Because defendant’s own evidence shows that he was the first person to resort to physical force, we cannot say the evidence shows that defendant “was free from fault in bringing on [the] difficulty.” It follows that he was not entitled to an instruction on his “lack of obligation to retreat when he is assaulted in his own home.” The assignment of error is overruled.

[410]*410Defendant next contends that the court erred in failing to instruct the jury “that it could find the defendant guilty of voluntary manslaughter on the basis of imperfect self-defense” where there was “substantial evidence from which the jury could infer that defendant used excessive force or that he was the initial aggressor.”

Before discussing the merits of defendant’s 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:

No 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. . . .

In the instant case, defendant submitted a handwritten list of requested instructions, Item No. 5 of which stated: “Instruct on voluntary manslaughter, involuntary manslaughter and self-defense.” The record shows that Judge Lamm “allowed” defendant’s 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 “specific requests or corrections or additions to the charge.” The record shows that defense counsel then asked “to preserve any differences” between the charge given and “the written request . . . previously submitted.” Defendant now concedes that “the instruction as requested could have been more clearly stated” but asks that this Court view the requested instruction and subsequent “preservation of differences” as sufficient compliance with Rule 10(b)(2). This we cannot do. Rule 10(b)(2) is clear in its requirement that counsel “stat[e] distinctly that to which he objects.” It is well acknowledged that the purpose of the Rule is “to 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.” 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 “allowed” defendant’s request for this in[411]*411struction, 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’s request to be one for instruction on imperfect self-defense as it relates to voluntary manslaughter.

Defendant asks in the alternative that we “find the failure of the trial court to give an instruction on imperfect self-defense to be plain error.” The so-called “plain .error” rule was adopted by our Supreme Court in State v. Odom, in acknowledgment of “the potential harshness of Rule 10(b)(2).” Id. “In deciding whether a defect in the jury instruction constitutes ‘plain error,’ the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury’s finding of guilt.” Id. at 661, 300 S.E. 2d at 378-79. We thus turn our attention to “the whole record.”

The 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.

Defendant 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’s 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 “paid the costs of court” 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 “had a probable impact on the jury’s finding of guilt.” This assignment of error is thus overruled.

By Assignment of Error No. 5 defendant contends:

[412]*412The court erred in excluding the testimony of Drs. Brad-bard and Rose concerning the existence and likely effect of defendant’s 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.

The 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 “not competent or relevant at the guilt phase of a trial of these matters.”

Defendant contends the offered evidence was both competent and relevant because it tends to show “that 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.” Defendant goes on to say:

Defendant’s position was not that his culpability should be reduced because he lacked the intelligence to fully appreciate the criminality of his act.

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Related

State v. Hearn
365 S.E.2d 206 (Court of Appeals of North Carolina, 1988)

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Bluebook (online)
313 S.E.2d 277, 67 N.C. App. 407, 1984 N.C. App. LEXIS 3073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bennett-ncctapp-1984.