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State v. Golphin8/25/2000
m to a much later group, and if we don't get to him at all, it will be a moot issue." Kevin's counsel stated, "Whatever the Court decides is fine." The court then asked if they would agree to move Beasley to panel number twenty-five. Counsel for both Tilmon and Kevin agreed. Beasley was later called and did appear. Based on his responses to questioning, Tilmon's counsel challenged Beasley for cause, and counsel for Kevin joined the challenge. The trial court excused Beasley for cause.
There were also prospective jurors who had made written requests to be excused, some of which were denied. Those whose requests were denied were placed into a separate panel, number thirty-one. Reflecting the intent of the court, the judge stated:
Then it is then the intent of the court to draft a letter to be sent to the address of these jurors with the jury reporting instructions informing them that they are on panel thirty-one; that it -- that they are to call in each day after five; that if their panel is called in, they are to come at the appointed time at which time they will receive -- that they will go through the orientation procedure and then be considered for service in this case. That letter will go out over my signature to these jurors. We will simply mail them the letter since we're not going to need them any time soon. Does anyone object to that procedure?
Both defendants stated there was " o objection." Defendants now assign error to the placement of these prospective jurors into panel number thirty-one.
Defendants were not prejudiced by the use of panels in the jury selection process. Neither Tilmon nor Kevin objected when the trial court indicated its intention to use panels for jury selection or when the trial court stated how the prospective jurors were to be placed into panels. See State v. Lawrence, ___ N.C. ___, ___, ___ S.E.2d ___, ___, slip op. at 10 (June 16, 2000) (No. 585A97) (holding there was a statutory violation, but the defendant could not show he was prejudiced); State v. Hyde, ___ N.C. ___, ___, ___ S.E.2d ___, ___, slip op. at 14 (June 16, 2000) (No. 529A98) (holding the defendant requested and consented to any deviation in the statutory jury selection process).
In addition, defendants cannot show they were prejudiced by the trial court's placement of Beasley, Peedin, and Harris into specific panels. When the trial court was discussing Beasley with all parties, Tilmon's counsel suggested moving Beasley to a later panel, and Kevin's counsel stated he would agree with the court's decision. Regarding Peedin, both defendants replied "no" when the trial court asked if there was a problem moving Peedin into panel number thirty. Neither defendant objected when the trial court indicated its intention to move Harris into panel number thirty. See Lawrence, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at 10 (No. 585A97); Hyde, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at 14 (No. 529A98). Additionally, with regard to Beasley, Peedin, and Harris, defendants argue the trial court's only options were to excuse or defer them. However, Beasley was subsequently excused for cause on a challenge by defendants, and because Peedin and Harris were never called for questioning, it is inconsequential that the trial court did not excuse or defer Peedin and Harris. Thus, defendants were not prejudiced.
Moreover, defendants cannot show they were prejudiced by the trial court's placement of the prospective jurors whose written excuses were denied into panel number thirty-one. Although defendants argue the makeup of the jury might have differed if those prospective jurors had been randomly placed into panels, "defendant not entitled to any particular
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