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State v. Golphin8/25/2000
case, on 5 January 1998, there was a hearing at which both defendants, through counsel, stipulated to a transfer of venue to allow jury selection in a county other than Cumberland County with the trial to be held in Cumberland County. The trial court proposed changing venue for the limited purpose of jury selection from a special venire of Johnston County residents. The trial court asked both defendants if they agreed to the proposal, and both defendants, through counsel, answered in the affirmative. Thereafter, on 13 January 1998, the trial court entered an "ORDER FOR SPECIAL VENIRE" which provided that "venue . . . has been ordered changed to Johnston County as of February 26th, 1998 for the selection of a jury." Additionally, the trial court stated "that . . . due to the number of defendant s and the fact that the charges involve the first degree murders of two law enforcement officers, the jury selection process in these matters will require that a Special Venire of jurors be summoned."
As Kevin never moved for a change of venue, N.C.G.S. § 15A-957 does not apply in the instant case. In addition, there is no violation of N.C.G.S. § 15A-133 as Kevin argues because there was a ruling by the trial court on the issue of venue for jury selection. Given the nature and circumstances of the alleged crimes against two law enforcement officers and defendants' acquiescence to the stipulation and proposal at the hearing, the trial court had the inherent authority to order the change of venue for the limited purpose of jury selection from a special venire of Johnston County residents. Moreover, Kevin has not shown the trial court abused its discretion in ordering the limited change of venue. Kevin's assignment of error has no merit.
By assignments of error, both defendants argue the trial court violated their federal and state constitutional rights to have a jury selected from a representative cross-section of the community in which the crime occurred. We disagree.
Initially, we address the State's argument that defendants did not preserve this issue for appellate review. Generally, " his Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(b)(1). In this case, there is no indication from the record that defendants objected to the special venire from Johnston County. In fact, defendants, through counsel, agreed with the trial court's proposal of a special venire from Johnston County. Thus, defendants waived appellate review of this assignment of error. Nevertheless, we elect, in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, to review these assignments of error. See N.C. R. App. P. 2.
The state and federal constitutional guarantees of a trial by a jury of the accused's peers "assures that members of a defendant's `own race have not been systematically and arbitrarily excluded from the jury pool which is to decide guilt or innocence.'" State v. Bowman, 349 N.C. 459, 467, 509 S.E.2d 428, 434 (1998) (quoting State v. McNeill, 326 N.C. 712, 718, 392 S.E.2d 78, 81 (1990)) (alteration in original), cert. denied, ___ U.S. ___, 144 L. Ed. 2d 802 (1999). In Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587 (1979), the United States Supreme Court established a three-prong test to determine whether the right to a fair cross-section in the jury venire had been violated. To establish a prima facie case of disproportionate representation in the jury venire, a defendant must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the represent
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