I.C. NO. TA-13866. NORWOOD FENNELL and ANNIE FENNELL, Administrators of the Estate of KENNETH B. FENNELL, Deceased, Plaintiffs v. OFFICE OF CHIEF MEDICAL EXAMINER, DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES; GUILFORD COUNTY MEDICAL EXAMINER; N.C. DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY; STATE BUREAU OF INVESTIGATION; and N.C. DEPARTMENT OF REVENUE, SELF-INSURED, Defendants. DECISION AND ORDER Written by GEORGE T. GLENN, II, Deputy Commissioner. Filed 30 June 1998.

 

 

NORTH CAROLINA INDUSTRIAL COMMISSION

I.C. NO. TA-13866

NORWOOD FENNELL AND )
ANNIE FENNELL, Administrators of the )
Estate of KENNETH B. FENNELL, )
Deceased, )
Plaintiffs,)
)
vs. ) DECISION AND ORDER
)
OFFICE OF CHIEF MEDICAL ) B Y
EXAMINER, DEPARTMENT OF )
ENVIRONMENT, HEALTH AND ) GEORGE T. GLENN II
NATURAL RESOURCES; GUILFORD ) DEPUTY COMMISSIONER
COUNTY MEDICAL EXAMINER; NC )
DEPARTMENT OF CRIME CONTROL )
AND PUBLIC SAFETY; STATE )
BUREAU OF INVESTIGATION; AND )
NC DEPARTMENT OF REVENUE, )
Self-Insured, )
Defendants.)
FILED: 30 June 1998

This case was heard by the undersigned in High Point on July 15-18, 1997 and September 8-9, 1997. At the conclusion of plaintiffs' evidence, upon defendants motion, the claims against the Office of Chief Medical Examiner, Department of Environment, Health and Natural Resources, Guilford County Medical Examiner, State Bureau of Investigation and Department of Revenue, were dismissed. The parties have now submitted their contentions and this matter is now ready for entry of judgment.

A P P E A R A N C E S

Plaintiffs: McSurely, Dorosin & Osment, Attorneys, Chapel Hill, North Carolina; Alan McSurely, Counsel of Record.

Earl Whitted, Jr., Attorney, Goldsboro, North Carolina; Counsel of Record.

Defendants: The Honorable Michael F. Easley, Attorney General for the State of North Carolina, Raleigh, North Carolina; Carol Barnhill, D. Sigsbee Miller, and Jonathan Babb, Counsel of Record.

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The undersigned finds as facts and concludes as matters of law the following, which were entered into by the parties as an executed Pre-Trial Agreement, as

STIPULATIONS

1. That all the parties are properly before the Industrial Commission, and the Industrial Commission has jurisdiction over the parties and this claim. The parties are subject to and bound by the provisions of the North Carolina Tort Claims Act.

2. That Norwood F. Fennell and Annie B. Fennell are the duly designated administrators of the estate of their late son, Kenneth B. Fennell.

3. That on August 30, 1993, Trooper Richard L. Stephenson shot and killed Kenneth B. Fennell.

4. That the issues to be determined from this hearing are as follows:

     a) Whether Trooper Richard L. Stephenson was negligent in the shooting of Kenneth B. Fennell?

     b) If so, what if any, damages are plaintiffs entitled to recover?

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The Pre-Trial Agreement, along with its attachments, and any stipulations that have been submitted by the parties, are hereby incorporated by reference as though they were fully set out herein.

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Based upon all of the competent evidence adduced at the hearing and from the record, the undersigned makes the following

FINDINGS OF FACT

1. On Monday, August 30, 1993, at approximately 7:05 p.m. Trooper Richard L. Stephenson (hereafter Stephenson) was on duty on I-85 in Randolph County, North Carolina near the Guilford County line. Stephenson was employed by the North Carolina State Highway Patrol and had been since January 11, 1986.

2. Stephenson was conducting radar surveillance of vehicular traffic traveling northbound on I-85. His vehicle was stationary in the median beneath the Highway 311 bridge.

3. Stephenson observed a blue Pontiac Grand Am headed northbound on I-85, he estimated the vehicle traveling at 70 mph. He clocked the vehicle traveling 70 mph. The speed limit on this portion of I-85 was 65 mph. He observed the driver being a young Black male between the ages of 20 and 30. Stephenson pulled from his position with the intent to stop the vehicle and give the driver only a warning ticket.

4. Stephenson caught up with the vehicle and activated his blue light. The vehicle pulled to the right shoulder of I-85 and stopped. Stephenson stopped his vehicle behind the blue Pontiac at an angle.

5. The driver of the blue Pontiac got out of the vehicle and was walking back to Stephenson's vehicle before Stephenson was able to position his vehicle where he would have liked. Stephenson exited his vehicle and walked to the motorist. The motorist asked why he had been stopped and Stephenson indicated for speeding.

6. Trooper Stephenson asked the motorist to have a seat in the right front passenger seat of his patrol vehicle. The motorist followed Trooper Stephenson's request and had a seat in the patrol vehicle along with Trooper Stephenson.

7. Stephenson asked the motorist for his operator's license and the motorist produced a student ID indicating that he was Kenneth B. Fennell, (hereafter Fennell). Stephenson again asked Fennell for his operating license, and Fennell told him that he had a New York operating license and presented the same to Stephenson. Stephenson contacted dispatch to determine if Fennell had a North Carolina operator's license or a valid New York operator's license. Stephenson was advised that Fennell did not have a valid North Carolina operator's license, and they were unable to determine whether he had a valid New York operator's license.

8. The vehicle that Fennell was driving was rented and Stephenson asked him how he had rented the same. Fennell told him that his girlfriend had rented the vehicle and showed him the rental agreement.

9. Stephenson issued Fennell a citation for no operator's license. Thereafter, Stephenson asked Fennell if he had any illegal drugs, contraband or weapons in the vehicle. Fennell told him that he did not. Stephenson then asked if he could search the vehicle and Fennell told him yes. Stephenson had written consent forms in his vehicle that he normally has motorists to sign, but he did not ask or otherwise have Fennell sign the consent form.

10. Stephenson asked Fennell to pull his vehicle farther off the right side of the highway because it was too close to the traveled portion of the highway. Fennell pulled his vehicle farther off the right side of the travel portion of the highway, and as he exited the vehicle he opened the trunk lid. Stephenson decided that there was not any reason for him to search the trunk of the vehicle.

11. Stephenson proceeded to the passenger compartment of the vehicle and started his search. He first attempted to look into the glovebox but could not get it opened; Fennell opened it for him. Stephenson looked through some items that were on the front seat. He then placed his left hand under the passenger side of the front seat where he felt something. While he was searching the vehicle he had asked Fennell to stand up next to the front right side of the vehicle.

12. Stephenson pulled a black bag from under the front seat. He began to unzip it and when he had gotten it approximately half open he noticed the barrel of a gun. He asked Fennell what was this and at about the same time Fennell hit him between the eyes with his fist. When Stephenson was initially struck he was in the area between the vehicle and the opened right door. When Stephenson was hit, he dropped the black bag and he and Fennell began to struggle. During the struggle, Fennell got on Stephenson's back and Stephenson was able to get Fennell off his back. Stephenson then pulled his convoy and swung it at Fennnell, Fennell stepped back and the convoy flew out of Stephenson's hand. Stephenson next pulled his mace out and Fennell knocked it out of his hand.

13. Stephenson then grabbed Fennell in a bearhug and threw him onto the ground with him landing on top of Fennell. Stephenson was attempting to gain control of Fennell while they were on the ground by pushing down on Fennell's throat with his right arm and at the same time, he was attempting to maneuver down Fennell's body so that Fennell could not reach his gun. Stephenson could feel Fennell's hand going up and down his back in what he thought was an attempt to get his gun. Stephenson realized that he was not able to gain control of Fennell and he got off of Fennell, at which point Stephenson indicated that Fennell ran and picked up the black bag and started to unzip it in what appeared to be an effort to get to the gun inside. After picking up the black bag, Fennell got down on his knees with the black bag between his knees. Fennell began to shuffle backwards while on his knees. Stephenson stated that he, Stephenson, was at the front right of the Fennell vehicle when Fennell got to the location of the black bag. Stephenson stated that he pulled his gun out when Fennell picked up the black bag, he told Fennell not to pick up the black bag, that he saw the gun coming out of the black bag and he fired once at Fennell without aiming but shot at center mass. Stephenson stated that after the first shot Fennell stopped and looked at him, then Fennell pulled the gun out of the black bag and Stephenson fired the second time, Fennell was at an angle to him when the first two shots were fired. Stephenson stated that at this point Fennell had cleared the gun from the black bag and was coming around with the gun towards him, at which point he fired twice more, back to back. These shots spun Fennell around to his right with Fennell falling face down on the ground. Stephenson stated that Fennell never did completely face him and that Fennell was in an upright position on his knees when he was shot. Stephenson stated that when he first fired his gun at Fennell, he, Stephenson, was located at the right front of the Fennell vehicle and Fennell was located straight out from the right rear wheel of the Fennell vehicle.

14. Stephenson stated that he told Fennell that if he continued to attempt to get the gun out of the black bag that he would shoot him. Fennell ignored him and continued in his attempt to get the gun out of the black bag. Stephenson stated that he saw the butt of the gun in Fennell's right hand, this is when he shot at center mass of Fennell's body. Stephenson did not know whether he had hit Fennell. He stopped after the first shot to determine what Fennell was doing. When he determined that Fennell was still attempting to gain control of the gun, he told Fennell again, not to attempt to take the gun out of the black bag. Fennell continued to ignore him and continued his attempt to take the gun out of the black bag, at this point he shot again at Fennell's center mass. It needs to be noted that Stephenson stated that when he discharged his firearm the first two times, Fennell was on his knees in an erect position with his right side towards Stephenson. Also, it should be noted that Stephenson stated that he was at or near the front right of the blue Pontiac and Fennell was located straight out from the right rear wheel of the blue Pontiac when he, Stephenson, pulled his firearm, and that he was continuing to back away from Fennell from the time he got off Fennell until he discharged his firearm. Fennell was also backing away from him and backing away from the vehicle and the travel portion of the highway from the point Stephenson had gotten off of him. Stephenson stated that when Fennell got the black bag in his possession that he had it on the ground at his knees while he was opening and reaching into it.

15. Stephenson stated that Fennell took the gun out of the black bag with his right hand, and began to turn the gun towards him, and this is when he shot the third and fourth time. These shots caused Fennell to spin to Fennell's right with the gun flying out of his hand and Fennell falling onto the ground face down. A gun was found approximately twelve feet from the location of Fennell's body.

16. Stephenson has given statements wherein he has stated that Fennell kept coming towards him after he had been shot twice. During the hearing of this matter, Stephenson stated that after the first two shots, Fennell acted as if he had not been shot and continued to pull the weapon out of the black bag and turning in an effort to point the gun towards Stephenson. Also, note that Stephenson stated that Fennell was on his knees and did not get off of his knees from the time he got possession of the black bag until he was spun around by the third and fourth shots.

17. In his video deposition of February 5, 1997, Stephenson stated that after he jumped off of Fennell, "He (Fennell) jumps up, he grabs the bag. He's on his knees. He's not standing up. He grabs the bag right here and he starts trotting - - he starts he's on - he's not on his knees, his knees are not touching the ground. He scuffling…. He's kind of in a bent form, on his feet…. He never stands up completely. And he's running back towards the ditch bank, running backwards, stepping backwards. Shuffling his feet going back. I in turn start backing up toward the front of the car to have some protection there. I've got my weapon pulled out at that time. He's down, he goes down on his knees in the grass at that time. I pulled my weapon; out and I pointed it at him and I said, "Don't do it. Don't pull the gun."

At that time I see him messing with the bag. I guess he's finishing unzipping it, because I didn't never get to unzip it all the way. At that time I see he grabs the gun. He starts pulling the gun out. I can see the gun in his right hand, just the butt of it…. At which time I fired one shot… I'm stooped down by the front of the car… He's probably 20 feet from me, 25 feet."

18. Vicki L. Turner was in a vehicle being operated by Willis Ray Jones. Mr. Jones was travelling in a northerly direction on I-85 at the time of the incident that was unfolding between Stephenson and Fennell. Ms. Turner stated that as they came upon the vehicles she "noticed the lights flashing and then the patrolman and the other man, not actually fighting, more pushing and shoving. The patrolman stepped backwards and the other man hit him in the head. As we were coming up beside the blue car, they were actually fighting and on the ground… I heard a gunshot and stopped, turned around and saw the patrolman standing at the front left corner of the blue car with his gun drawn and pointed at the man… I heard 2 more gunshots and looked to see where the other man was. I saw him raise his arms towards his chest and fall backwards." Note that Stephenson stated that when he shot Fennell the last two times that Fennell spun to the right with the gun flying out of his right hand. And Ms. Turner saw Fennell raise his hands to his chest after being shot the last two times. Also note that she saw a gun in Stephenson's hand but did not notice a gun in Funnell's hand, although she did see him raise his hands to his chest.

19. Sergeant E. E. VunCannon took a statement from Stephenson on August 31, 1993, shortly after the incident herein had transpired. Sgt. VunCannon noted in his report that Stephenson told him that as he was unzipping the black bag, " he observed the handle of a semi-automatic pistol… At this investigative stage, he came under physical attack from Mr. Fennell who struck him repeatedly with closed fists about the forehead. Trooper Stephenson dropped the bag at his feet, spilling its contents, a small set of scales and a bag of white powder, believed to be cocaine onto the ground. He struggled with Mr. Fennell, grabbing him by his shirt in the right chest area, and simultaneously pulled his convoy from its pocket. He attempted to strike Mr. Fennell with the convoy, but lost control of it as it flew from his hand. Mr. Fennell continued the physical attack. He grabbed Mr. Fennell in a bear hug and at the same time secured his capsicum spray from its carrier but had it knocked from his hand immediately. Again he grabbed Mr. Fennell in a bear hug and as their struggled continued, they both fell to the ground. His primary goal at this point was to effect an arrest. He told Mr. Fennell to give up to avoid being injured. Mr. Fennell continued to fight, commenting "Fuck you", in a response to Trooper Stephenson's request that he submit to arrest. At his stage of the struggle, he observed Mr. Fennell reach for the bag, which contained the pistol. Concluding Mr. Fennell was going to gain possession of the pistol, Stephenson disengaged from the struggle with him to attain a defensive position. He concluded Mr. Fennell was about to introduce the weapon into the conflict as he positioned himself on the left front side of the rental car.

As he moved to the left front of the rental vehicle, Trooper Stephenson checked to ensure he still had his service pistol.. Just as he reached the left front of the rental vehicle, he observed Mr. Fennell obtain possession of the bag containing the weapon. At this point, he drew his service weapon from its holster just as Mr. Fennell was completing the unzipping of the bag containing the weapon. Trooper Stephenson directed him not to introduce the weapon telling him that if he did it would be necessary to shoot him. Mr. Fennell did not heed this warning, continued instead to acquire the weapon, stating as he opened the black bag, I'll kill you!" Again, Trooper Stephenson advised it would be necessary to shoot him (Mr. Fennell) if he persisted in his present course of actions.

Mr. Fennell reached into the bag, ignoring Trooper Stephenson's directions, proceeded to produce the weapon, …At this time one of his hands was inside the bag… fearing for his safety… He (Stephenson) fired his weapon once toward center mass…. He paused, ordered Mr. Fennell again to stop his course of action. At this point, Mr. Fennell withdrew the weapon from the bag, which compelled Trooper Stephenson to fire three (3) additional rounds in the direction of Mr. Fennell. Mr. Fennell, at this time, spun into a counter clockwise rotation and fell face down onto the ground. As he turned, the weapon flew from his hand." This interview was done at 3:10 a.m. on August 31, 1993.

20. On August 31, 1993, at approximately 6:14 a.m., Sergt. D. G. Crawford and Sergt. D. H. Call interviewed Stephenson concerning the events leading up to the shooting of Fennell. Their report indicates that Stephenson advised them that " He did not have time to get Fennell to sign a search release form…. told the suspect to go and stand beside the right front fender area of the suspect vehicle…." He stated he then reached under the front passenger seat and pulled out a black leather bag that felt heavy.

He stated when he was unzipping the leather bag, he saw a black pistol semiautomatic type handgun in the bag and at that time, suspect Fennell hit him twice in the head with his fist and the black bag fell to the ground beside the right front passenger door. He stated he then grabbed suspect Fennel with his left hand and reached for his issued convoy and tried to hit the suspect and the convoy flew out of his hand. He stated he then grabbed the suspect and tried to get his issued capstine [capsicum] container (Pepper Gas) and attempted to spray suspect Fennell and the container was knocked out of his hand. He stated he then grabbed the suspect in a bear hug and both of them fell to the ground and he was on top of suspect Fennell, with his right forearm down against the suspect's neck. He stated he said to the suspect, "Give up or I will have to hurt you" and suspect Fennell responded by saying, "Fuck you." He stated the suspect was lying on his back on the ground and the suspect was reaching for the black bag that was also on the ground and had the gun in it.

He stated he was trying to keep the suspect from getting to the gun because the suspect was scooting towards the bag. He stated he realized that the suspect was going to get the bag with the gun, so he got off the suspect and moved toward the left front fender of the rental car and at the same time, he drew his patrol issued handgun. He stated the suspect had gotten the bag and all the time the suspect was unzipping the bag and sticking his right hand down in the bag.

He stated during this time, the suspect never got off his knees. He stated he said to suspect Fennell, "Don't do that, or I will have to shoot you." … He stated the suspect continued with his right hand, attempting to pull the gun out… He stated the suspect then pulled out the gun and he fired the first shot at the suspect and the suspect kept coming and he fired the second shot from his patrol weapon. He stated the suspect cleared the gun from the bag and was turning towards him and he fired two quick shots and the suspect flung around and the suspect's gun went out of his hand onto the ground.

21. John William Lovings, Jr., came upon the scene of this incident while it was still unfolding. Mr. Lovings was traveling south on I-85 when he noticed the blue Pontiac and the patrol Mustang setting off to the side of the north bound lanes of I-85. As he passed the two vehicles he noticed that the trooper and a black person were fighting to the right of the blue Pontiac near the front right door. Mr. Loving stopped on the side of the road and got out of his truck and started across the highway and median to the location of the trooper and black person. When Mr. Loving got across the median to the edge of the north bound lane of I-85 he noticed that the trooper was standing at the front left corner of the blue Pontiac. "The trooper was crouched and had both his hands on his weapon pointed straight out in front of him. The trooper had his weapon pointed down towards the bank where Fennell had disappeared out of sight before… I heard the first shot and then one to two seconds later I heard three more shots. On the last three shots it seemed like one was just right after another." Thereafter, Mr. Lovings walked with Stephenson up to the location of Fennell's body. Mr. Lovings indicated that it was his opinion that Fennell's body was laying approximately 20 to 30 feet below the passenger door of the blue Pontiac.

22. After the shooting Stephenson contacted the communications center and informed them that he had been involved in a shooting and he needed assistance. Following the call other law enforcement officers came to the scene of this incident. Upon taking an inventory of the area the officers found the following items; a black bag, convoy, nail clippers, a AA battery, pepper mace, set of small scales, plastic bag with an off-white substance, two rubbers, nylon bag with mirror and calculator, clear plastic bag with US currency in the amount of $1,200.00, shell casings, set of keys, assorted coins and a KBI, Inc. pistol.

23. The pistol and scales were sent to the laboratory for a determination of whether there were any finger prints. The laboratory indicated that there were no latent prints on either the pistol or scales. It should be noted that on the date of this incident it was a hot and humid day, and Fennell and Stephenson had engaged in a struggle for a period of time prior to Fennell allegedly placing his hands on the KBI pistol causing his body temperature to raise. It is the undersigned's understanding that when one is hot and sweaty they are more likely to leave their fingerprints on items they touch. It should be noted that if the gun belonged to Fennell, that he would have handled it on other occasions other than on the date and time of this incident, increasing the likelihood that his fingerprints would have been on the pistol. The fact that Fennell's finger prints were not found on the KBI pistol, coupled with the fact that none of the eye witnesses to this incident saw a gun in the possession of Fennell although they clearly saw his hands, leaves the undersigned with the fact that Fennell did not have a gun nor did he attempt to enter a gun into this situation.

24. Fennell's body was sent to the Office of the Chief Medical Examiner. The autopsy report revealed Fennell sustained either 4 or 5 gunshots, along with an abrasion on the posterior surface of the right arm and a small abrasion with a tread pattern over the left anterior hip made by and individual's shoe, indicating that Fennell had been kicked or stomped. The examiner was unable to determine the order of the gunshot wounds. Gunshot wound #1 consists largely of a graze wound on the right upper chest … showing the direction of travel to be downward. Gunshot wound #1 likely continues as gunshot #4. Gunshot wound #2 has an entrance in the right lower chest; it tracks to the left, backwards and up. Gunshot wound #3 has an entrance in the left upper abdomen, stippling surrounds this wound over an area approximately 2" x 3", the track passes backward, downward and to the left. Gunshot wound #4 is located on the right side of the abdomen, it tracks downward, slightly backward and slightly to the left, and it is most likely a continuation of gunshot wound #1. Gunshot wound #5 enters the top of the left shoulder, it tracks downward and to the right; there is stippling located on the left side of the head, above the left ear, over an area approximately 1" x ½". Gunshot wounds #2 and #5 had the potential to be rapidly fatal. Gunshot wounds #3 and #4 had the potential to be fatal but not rapidly fatal. It is noted that Stephenson indicated that Fennell was scooting across the ground in an attempt to get to the hand gun while Stephenson was on top of him and his back was on the ground, there were not abrasions found on his back, nor were there any abrasions or marks found on Fennell's neck to support Stephenson's statement that he was pushing down on Fennell's neck in an attempt the gain control of him.

25. When looking at the gunshot wounds and the testimony of Stephenson, the physical findings of the Medical Examiner do not support the testimony of Stephenson but rather contradict it. The most obvious contradiction is that Stephenson testified that he was 20 to 25 feet from Fennell when he discharged his firearm the first time and this distance increased prior to him discharging his firearm again. The stippling found on the body of Fennell indicate, according to Dr. John D. Butts, the Chief Medical Examiner for the State of North Carolina, that the firearm used to shoot Fennell was within three (3) feet or less of Fennell's body at the time of its discharge. Dr. Butts stated that stippling (powder burn) is particles that are discharged by a gun when it is fired and if an object or person is within three (3) feet or less from the barrel of the firearm when it is discharged the particles will be visible to the eye upon examination. Fennell's body had stippling on the left side of his head above his left ear, Dr. Butts indicated this stippling was consistent with gunshot #5 which entered Fennell's body from the top of his left shoulder and gunshot #3 on the left upper abdomen. It needs to be noted that Stephenson stated that Fennell was in an erect position on his knees when he shot Fennell, and that Fennell did not move from this position from the time he was shot the first time until the last two shots spun him around to the right. Also, Stephenson stated that Fennell never did completely face him. If Fennell's right side was to Stephenson when he shot all four or five shots then the entry wound for each of the shots should be on the right side of Fennell's body, they are not, and when you add in that Fennell was approximately six feet one inch tall and Stephenson is approximately five feet seven inches tall, it is impossible for Stephenson to have shot Fennell in the top of the left shoulder while Fennell's right side was to Stephenson and Fennell was in an erect position on his knees. It also needs to be noted that this wound goes from the left to the right and not from the right to the left, with the later being the path the bullet should have taken based upon Stephenson's statement that Fennell's right side was to him.

26. It needs to be noted that Stephenson, immediately after the incident, stated that he was approximately 20 to 25 feet from Fennell when he shot the first time. During the hearing of this matter, Stephenson testified that he thinks he was five (5) to six (6) feet from Fennell when he discharged his gun the first time. Also, recalling the witnesses' testimony and statements, which did not change, placed Stephenson either at the right front corner of the Blue Pontiac or the left front corner of the Blue Pontiac at the time of his first shot. All of which are inconsistent with the Medical Examiner's findings.

27. Based upon the inconsistencies of Stephenson's testimony and its contradiction with the physical evidence, Stephenson's testimony cannot be accepted as being credible.

28. Stephenson has stated that he was attempting to gain control of the situation and place Fennell under arrest. Based upon the facts that I am left with, I find that Stephenson did not intend to use the amount of force he did in fact use, and his use of deadly force in this incident was unreasonable, excessive and unsupported by the believable facts. Therefore the use of deadly force was unjustified, excessive and negligent.

29. When Stephenson shot Fennell, if one believes what he stated immediately after the incident, he was at least 20 to 25 feet from Fennell and he had the vehicle between them. Lloyd R. Tremer, defendants' expert on the use of deadly force, was of the opinion that if Fennell was some 20 to 30 feet away from Stephenson and did not have a gun, that Stephenson's use of deadly force in that instance was unreasonable and excessive. It should be noted that Fennell did not have or introduce any weapon in this matter and the handgun that was found at the scene was placed there by someone other than Fennell.

30. As a sworn law enforcement officer, Stephenson has the duty of knowing what amount of force should be used in the performance of his duty as a law enforcement officer. His use of deadly force in this instance was greater than that which was reasonable and justified.

31. Fennell was a twenty-two year old honor student, who had enrolled in school on the date of his death for his junior year of college. His parents were both educators and I am left with the conclusion that he would have matched or exceeded his parents successes. Plaintiffs no longer have their son to enrich their lives, and Fennell's father's health has been in a decline since his death and he has become withdrawn from his family and friends.

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Based upon the foregoing stipulations and findings of fact, the undersigned makes the following

CONCLUSIONS OF LAW

1. Stephenson's use of deadly force in this matter was unreasonable, excessive and unjustified. Therefore his act of using deadly force was negligent, and this negligence was the proximate cause of plaintiff's death.

2. Plaintiffs have been damaged as a direct result of their son Kenneth B. Fennell's death and are entitled to recover damages of and from defendants.

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Considering the foregoing findings of fact and conclusions of law, the undersigned makes the following;

O R D E R

1. Subject to attorney's fees hereinafter awarded, plaintiffs shall have and recover of and from defendant the sum of $100,000.00 for the damages plaintiffs have sustained as a direct result of their son's death as a direct result of the negligence of Trooper Richard L. Stephenson while in the course and scope of his employment with the North Carolina State Highway Patrol.

2. An attorney's fee of $10,000.00 is hereby awarded to plaintiff's counsel and shall be deducted from the sum due plaintiff and paid directly to his attorney, based on their level of assistance given to the plaintiffs in the prosecution of this matter.

3. Defendant shall pay the costs of this action.

IT IS FURTHERMORE ORDERED that this case be REMOVED from the Guilford County hearing docket.

 

                                   S/                                   
GEORGE T. GLENN II
DEPUTY COMMISSIONER


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