State v. Golphin8/25/2000
tate v. Chapman, 342 N.C. 330, 338-39, 464 S.E.2d 661, 665-66 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996). We disagree.
Initially, we note the Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees all defendants the right to be present at every stage of their trial. See Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 356 (1970). Through the Due Process Clause of the Fourteenth Amendment, this right also applies to the states. See Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926 (1965); State v. Buchanan, 330 N.C. 202, 209, 410 S.E.2d 832, 836 (1991).
Similarly, in North Carolina, pursuant to the Confrontation Clause in Article I, Section 23 of the North Carolina Constitution, a defendant has a right to be present at every stage of his trial. See State v. Call, 349 N.C. 382, 397, 508 S.E.2d 496, 506 (1998); Chapman, 342 N.C. at 337, 464 S.E.2d at 665; State v. Daniels, 337 N.C. 243, 256, 446 S.E.2d 298, 307 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995); State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987). If the defendant is being tried capitally, this right cannot be waived. See State v. Buckner, 342 N.C. 198, 227, 464 S.E.2d 414, 430 (1995), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47 (1996). Generally, however, "this right does not arise prior to the commencement of trial." Call, 349 N.C. at 397, 508 S.E.2d at 506; see also Chapman, 342 N.C. at 338, 464 S.E.2d at 665; State v. Rannels, 333 N.C. 644, 653, 430 S.E.2d 254, 259 (1993).
In November 1997, defense counsel for both defendants informed the prosecution that they intended to file change of venue motions from Cumberland County. In meetings between the defense attorneys and the prosecutors to discuss change of venue, defendants were not present, and the meetings were not recorded. The prosecutors and defense attorneys then met with the presiding judge to discuss possible change of venue sites or special venire locations; defendants were not present at this meeting, and the meeting was not recorded.
Subsequently, on 5 January 1998, in the presence of Kevin, Tilmon, and their attorneys, the parties stipulated to a change of venue for purposes of jury selection. Thereafter, the trial court stated:
As to each Defendant, it would be my understanding that each Defendant is agreeing to a special venire for Johnston County for that Defendant's trial if the cases are joined or if that Defendant is chosen for the first trial, but that neither Defendant is waiving their right to make a Motion for a Change of Venue if there are separate trials and that particular Defendant's trial is not the first trial.
When the trial court asked both defendants if this was correct, they responded, through their attorneys, in the affirmative. Pretrial motions were later heard on 16 and 23 February 1998, and jury selection commenced in Johnston County on 26 February 1998.
The meetings at issue in this case took place prior to commencement of defendants' trial. Moreover, defendants were present at the hearing on change of venue at which defendants stipulated to a special venire from a county other than Cumberland; the trial court proposed a special venire from Johnston County; and both defendants agreed, through counsel, to the special venire from Johnston County. Thus, no error, constitutional or otherwise, was committed. See Buckner, 342 N.C. at 228, 464 S.E.2d at 431 (holding there was no constitutional violation because the pretrial conference took place prior to commencement of the defendant's trial); Rannels, 333 N.C. at 652, 430 S.E.2d at 258 (holding it was not error to conduct private, unrecor
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