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State v. Golphin8/25/2000
ased on our review of the transcript in the instant case, we note that Tilmon did not request from the trial court an opportunity to ask Parker more questions. Although Tilmon states that both he and Kevin requested such an opportunity, the transcript reveals that Kevin's counsel indicated a desire to ask more questions, but Tilmon's counsel stated, "I have nothing to add." The statement by Tilmon's counsel does not express an intent to join the request made by Kevin's counsel. Therefore, Tilmon has not preserved appellate review of this argument pursuant to N.C. R. App. P. 10(b)(1). Moreover, as Tilmon claims the trial court's excusal of Parker violates his constitutional rights, we note that this Court is not required to rule on a constitutional issue unless it was raised and determined by the trial court. See Nobles, 350 N.C. at 495, 515 S.E.2d at 893. Tilmon's counsel did not raise a constitutional issue with the trial court concerning the trial court's decision to excuse Parker, and the trial court did not have an opportunity to rule on any constitutional issue. Therefore, we need not address Tilmon's argument as to the trial court's decision to exclude Parker for cause. As Kevin did request an opportunity to ask Parker further questions, we address his argument.
Parker initially indicated that she could be fair and impartial but then expressed some doubt. The trial court asked Parker more than once whether she doubted her ability to be impartial. In each instance, Parker indicated either that she felt her concerns would interfere with her ability to be fair and impartial or that she doubted her ability to be fair and impartial. Based on the voir dire of Parker, the trial court correctly concluded that she could not render a fair and impartial decision. See Sokolowski, 351 N.C. at 148, 522 S.E.2d at 72. In addition, there was no showing that further questioning by Kevin's counsel would have produced different answers. See Oliver, 302 N.C. at 40, 274 S.E.2d at 191. Kevin has not shown that the trial court abused its discretion in refusing to allow him to further question Parker and in excusing Parker for cause. Kevin's assignment of error is overruled.
By assignment of error, Tilmon argues the trial court erred in excusing prospective juror Belinda Smith as not qualified. Tilmon specifically argues that because more than two years had elapsed between the end of Smith's prior jury service and the time she would have been empaneled in the instant case, she was "qualified" to serve as a juror, and the trial court's actions in excusing her violated his state and federal constitutional rights. We disagree.
The transcript reveals that at the time jury selection commenced, Smith had previously served on a federal jury within two years and was not immediately qualified to serve in the instant case. In addition, Tilmon suggested that the trial court excuse her from service. Tilmon cannot now complain that the trial court's excusal of Smith violated his constitutional rights. As we have previously stated, this Court will not ordinarily consider constitutional questions not raised and passed on by the trial court. See Wallace, 351 N.C. at 503, 528 S.E.2d at 340-41. Therefore, Tilmon has failed to preserve this question for appellate review.
Assuming arguendo that the question was preserved for appellate review, Tilmon's argument must fail.
All persons are qualified to serve as jurors and to be included on the jury list who are citizens of the State and residents of the county, who have not served as jurors during the preceding two years . . . . Persons not qualified under this section are subject to challenge for cause. N.C.G.S. § 9-3 (1999) (emphasis added).
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