# State v. Benson

> Supreme Court of North Carolina · October 6, 1988 · 323 N.C. 318

URL: https://www.frixlaw.com/law-library/cases/9567511

## Case

- **Full name:** State of North Carolina v. Jon Lee Benson
- **Court:** Supreme Court of North Carolina
- **Decided:** October 6, 1988
- **Citations:** 323 N.C. 318; 372 S.E.2d 517; 1988 N.C. LEXIS 612
- **Precedential status:** Published
- **Opinion:** Concurrence by Frye
- **Judges:** Martin, Frye, Exum
- **Cited by:** 338 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated in part, on other grounds by State v. Hooper, 358 N.C. 122 (2004).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567511

## How later opinions describe it (automated extraction)

- concluding that when the defendant moved to suppress his confession on several grounds and the trial judge denied the motion solely “upon the voluntariness theory,” the defendant could not argue for the first time on appeal the new basis that his arrest had been unlawful
- holding defendant waived argument where defendant relied on one theory before trial as basis for written motion to suppress and then asserted another theory on appeal
- holding that where [the] defendant relied on one theory at trial as basis for written motion to suppress and then asserted another theory on appeal, “no swapping horses” rule applied
- holding that where defendant relied on one theory at trial as basis for written motion to suppress and then asserted another theory on appeal, “no swapping horses” rule applied
- holding that constitutional issues not raised and passed on at trial will not be considered for the first time on appeal

## Opinion text

*330 Justice FRYE
concurring in result.
The Court rejects defendant’s 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’s decision in McKoy and I believe that it was wrongly decided. I therefore do not agree with the majority’s rejection of defendant’s argument based on the Mills issues for “the reasons expressed in State v. McKoy.” I do agree with the Court’s 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.
Chief Justice EXUM joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567511. Public record. Not legal advice.