State v. Golphin8/25/2000
nis, 446 U.S. at 301-02, 64 L. Ed. 2d at 308; McQueen, 324 N.C. at 132, 377 S.E.2d at 46. Moreover, Tilmon initiated the further discussion when he asked why Agent Godfrey and Detective Casey wanted to talk about the incident when it had been videotaped. See Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386. Agent Godfrey merely responded to Tilmon's question that they needed to know why it happened. Nothing should have led Agent Godfrey to believe his response to the question would elicit an incriminating response. See Innis, 446 U.S. at 301-02, 64 L. Ed. 2d at 308.
As we have concluded that the trial court's findings of fact are supported by competent evidence, that the findings of fact support the conclusions of law, and that the conclusions of law are legally correct, we hold Tilmon's constitutional rights were not violated by the trial court's denial of his motion to suppress his statement to police. Therefore, this assignment of error is overruled.
Concerning Kevin's assignment of error, it is well settled that "a defendant's right to counsel is personal" to the defendant. State v. Peterson, 344 N.C. 172, 179, 472 S.E.2d 730, 733 (1996). Kevin concedes he has no standing to assert Tilmon's constitutional right to counsel. Nevertheless, Kevin argues he was prejudiced by the erroneous admission of the allegedly unconstitutional confession.
Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a party to present a timely request, objection, or motion to the trial court to preserve a question for appellate review. See N.C. R. App. P. 10(b)(1). However, Kevin did not make a motion in limine to suppress Tilmon's statement on the basis that both the state and federal constitutions require its exclusion. Nor did Kevin object at the time the statement was offered into evidence at trial. Thus, this issue was not properly preserved. Although Kevin's assignment of error includes plain error as an alternative, he does not argue specifically and distinctly, pursuant to N.C. R. App. P. 10(c)(4), that there was plain error. Therefore, this assignment of error is not properly before this Court.
JURY SELECTION ISSUES
By assignments of error, both defendants argue, pursuant to N.C.G.S. § 15A-1214(a), the trial court violated its statutory duty to ensure jury selection was conducted in a random manner. Specifically, defendants contend both the trial court's use of panels for jury selection and the trial court's placement of certain prospective jurors into particular jury panels violated the randomness requirement of jury selection, the purpose of which is to protect a defendant's state and federal constitutional rights to a fair and impartial jury.
Constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal. See Wallace, 351 N.C. at 503, 528 S.E.2d at 340-41; Nobles, 350 N.C. at 495, 515 S.E.2d at 893. However, statutory violations, regardless of objections at the trial court, are reviewable. "When a trial court acts contrary to a statutory mandate, the right to appeal the court's action is preserved, notwithstanding the failure of the appealing party to object at trial." State v. Jones, 336 N.C. 490, 497, 445 S.E.2d 23, 26 (1994).
In the instant case, defendants cite Gray v. Mississippi, 481 U.S. 648, 660, 95 L. Ed. 2d 622, 634 (1987) (holding the improper removal of prospective jurors for cause was a type of constitutional error which was not susceptible to harmless error analysis), and contend their constitutional rights to a fair and impartial jury were violated. However, defendants never objected, on constitutional grounds or otherwise, to the use of panels for jury
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