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State v. Golphin8/25/2000
ded sidebar conferences with prospective jurors where conferences took place prior to calling the calendar for the session and the administration of the oath to the jurors). These assignments of error are overruled.
In another assignment of error, Kevin argues there was no filed court order changing venue for purposes of jury selection, and this violated his federal and state constitutional rights. However, the question presented in Kevin's brief relating to this assignment of error concerns whether the trial court erred by not following the statutory mandates in ordering the special venire from Johnston County. In his argument, Kevin does not address the trial court's failure to file a court order changing venue for that limited purpose. Rule 28(a) of the North Carolina Rules of Appellate Procedure provides: "Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief, are deemed abandoned." N.C. R. App. P. 28(a). Thus, Kevin abandoned this assignment of error. Nevertheless, in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we will address the merits of the question presented in Kevin's brief. See N.C. R. App. P. 2.
Kevin argues the trial court did not follow the statutory mandates in ordering the special venire from Johnston County, thereby entitling him to a new trial. Specifically, Kevin argues there are only two statutory mechanisms for changing venue -- by order of the court pursuant to N.C.G.S. §§ 15A-957 and -958, or by an agreement of the parties pursuant to N.C.G.S. § 15A-133. The trial court followed neither. We disagree.
Generally, venue for "trial proceedings in cases within the original jurisdiction of the superior court lies in the county where the charged offense occurred." N.C.G.S. § 15A-131(c) (1999). Parties may waive venue or defendants may move for a change of venue pursuant to N.C.G.S. § 15A-957. See N.C.G.S. § 15A-133 (1999). A waiver of venue must be in writing, must be signed by both parties, and must specify the stages of the proceedings affected by the waiver. See id. A defendant may move for a change of venue if the prejudice is so great that he/she cannot obtain a fair and impartial trial; the trial court can then move the proceeding or order a special venire. See N.C.G.S. § 15A-957 (1999). In addition, the trial court may, upon motion by the defendant or the State, or upon its own motion, "issue an order for a special venire of jurors from another county if in its discretion it determines the action to be necessary to insure a fair trial." N.C.G.S. § 15A-958 (1999).
"These statutory limitations on the power of a court to order a change of venue are preempted by the inherent authority of the superior court to order a change of venue in the interest of justice." State v. Chandler, 324 N.C. 172, 183, 376 S.E.2d 728, 735 (1989) (holding the trial court did not abuse its discretion in granting the State's motion for change of venue, despite the statute's granting only the defendant a right to move for a change of venue, because the findings supported the trial court's conclusion and resulting order); see also State v. Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524-25 (1979) (holding the superior court had the inherent power to move the proceedings to a county other than an adjoining county in the judicial district or a county in an adjoining judicial district as provided by the statute), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). Moreover, the trial court's ruling on a motion to change venue will not be disturbed absent a showing of abuse of discretion. Chandler, 324 N.C. at 183, 376 S.E.2d at 735.
In the instant
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