State v. Golphin8/25/2000
juror. right to challenge is not a right to select but to reject a juror." State v. Harris, 338 N.C. 211, 227, 449 S.E.2d 462, 470 (1994). In Harris, this Court noted that the defendant conceded that neither he nor the State exhausted their peremptory challenges, "evidenc satisfaction with the jury which was empaneled." Id. In the instant case, neither defendant exhausted the statutory number of peremptory challenges. See N.C.G.S. § 15A-1217(a) (1999). Thus, neither defendant can show he was prejudiced because neither was forced to accept a juror he felt was undesirable. See Lawrence, ___ N.C. at ___, ___ S.E.2d at ___, slip op. at 10 (No. 585A97) (noting that the defendant did not exhaust his peremptory challenges and was not forced to accept an undesirable juror); see also Harris, 338 N.C. at 227, 449 S.E.2d at 470.
Therefore, we conclude defendants failed to preserve any arguments as to a constitutional violation or a statutory violation. Nevertheless, assuming arguendo there was error, defendants have failed to show they were prejudiced by the trial court's use of panels in jury selection or the trial court's placement of particular jurors into specific panels.
By assignments of error, both Tilmon and Kevin argue the trial court violated their state and federal constitutional rights to be present at every stage of their capital trial. Defendants contend the trial court's direction to the clerk of court to meet privately with jurors about transportation and other logistical matters violated their constitutional rights because transportation was a substantive issue which was not "merely administrative" in nature. We disagree.
As we noted above, defendants are guaranteed the right to be present at every stage of their trial by the Confrontation Clause of the Sixth Amendment to the United States Constitution. See Allen, 397 U.S. at 338, 25 L. Ed. 2d at 356. Similarly, the Confrontation Clause in Article I, Section 23 of the North Carolina Constitution provides defendants the right to be present at every stage of the trial. See Call, 349 N.C. at 397, 508 S.E.2d at 506; Chapman, 342 N.C. at 337, 464 S.E.2d at 665; Payne, 320 N.C. at 139, 357 S.E.2d at 612. This right cannot be waived when a defendant is being tried capitally, see Buckner, 342 N.C. at 227, 464 S.E.2d at 430, and extends to jury selection, see State v. McCarver, 329 N.C. 259, 261, 404 S.E.2d 821, 822 (1991); State v. Smith, 326 N.C. 792, 794, 392 S.E.2d 362, 363 (1990).
While this Court has held a "trial court's ex parte admonitions to the jury amounted to error requiring a new trial," Payne, 320 N.C. at 140, 357 S.E.2d at 613, this Court has also held a defendant's right to presence is not violated when a clerk communicates with a jury about administrative matters, see State v. Bacon, 337 N.C. 66, 86, 446 S.E.2d 542, 551 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). In Bacon, the defendant argued his right to presence was violated by the trial court's instructions to the bailiff to "`put the jurors in the jury room on break'" and "`have them to return back to the jury room' at some specific time," as well as the administrative duties of the clerk of calling jury roll and informing jurors what time they needed to arrive at court. Id. This Court concluded "that these challenged communications were of an administrative nature and did not relate to the consideration of defendant's guilt or innocence." Id. This Court held the defendant's presence would not have had a reasonably substantial relation to his opportunity to defend. Id.
Similarly, in State v. Lemons, 348 N.C. 335, 346, 501 S.E.2d 309, 316 (1998), sentence vacated on other grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 North Carolina DUI Attorneys
DUI Lawyers
|