recognizing that a trial court’s determination on the third prong of Batson— whether defendant has met his burden to show that the State purposefully discriminated in exercising peremptory challenges—should be upheld “unless we are - 13 - STATE V. HOBBS Newby, J., dissenting convinced it is clearly erroneous” (citing State v. Kandies, 342 N.C. 419 , 434–35, 467 S.E.2d 67, 75 , cert. denied, 519 U.S. 894 , 117 S. Ct. 237 (1996))
How later courts described this case
- recognizing that a trial court’s determination on the third prong of Batson— whether defendant has met his burden to show that the State purposefully discriminated in exercising peremptory challenges—should be upheld “unless we are - 13 - STATE V. HOBBS Newby, J., dissenting convinced it is clearly erroneous” (citing State v. Kandies, 342 N.C. 419 , 434–35, 467 S.E.2d 67, 75 , cert. denied, 519 U.S. 894 , 117 S. Ct. 237 (1996))
- concluding that the defendant’s failure to object to the admission of evidence after the denial of the defendant’s motion to suppress that same evidence constituted a waiver of the defendant’s “right to have this issue reviewed on appeal”
- holding that a capital defendant’s argument was waived when it was not preserved under N.C. R. App. P. 10(b)(1) and defendant did not “specifically and distinctly” assign plain error as required by N.C. R. App. P. 10(c)(4)
- concluding that the defendants' challenge to the jury empaneling procedure on the grounds that it was not random as required by N.C.G.S. § 15A-1214(a) (1999) was preserved even though defendants did not follow the procedure contained in N.C.G.S. § 15A-1211(c
Written by the judges who cited it.
The opinion
WAINWRIGHT, Justice.
On 1 December 1997, indictments were handed down charging defendants Kevin Salvador Golphin (Kevin) and Tilmon Charles Golphin, Jr. (Tilmon), each with two counts of first-degree murder, two counts of robbery with a dangerous weapon, one count of assault with a deadly weapon with intent to kill, one count of discharging a firearm into occupied property, and one count of possession of a stolen vehicle. Defendants, who are brothers, were tried jointly in a capital proceeding at the 23 February 1998 Criminal Session of Superior Court, Cumberland County. Defendants were tried before a jury drawn from a special venire selected in Johnston County. The jury found defendants guilty on all charges. After a capital sentencing proceeding, the jury recommended a sentence of death in each murder for both defendants. On 13 May 1998, the trial court entered judgments against defendants in accordance with the jury’s recommendations. In addition, the trial court sentenced each defendant to the following consecutive terms of imprisonment: (1) for possession of a stolen vehicle, a minimum of six months and a maximum of eight months; (2) for assault with a deadly weapon with intent to kill, a minimum of thirty-one months and a maximum of forty-seven months; (3) for discharging a firearm into occupied property, a minimum of thirty-one months and a maximum of forty-seven months; and (4) for each count of robbery with a dangerous weapon, a minimum of eighty months and a maximum of one hundred five months. Defendants appeal to this Court as of right from the judgments imposing sentences of death. On 19 July 1999, this Court allowed defendants’ motions to bypass the Court of Appeals on the other convictions.
*380
The State presented evidence which tended to show that on 23 September 1997, Kevin, who was seventeen, and Tilmon, who was nineteen, were living with their grandparents in Greeleyville, South Carolina. That morning, defendants’ cousin, Demetric Mack, drove them to Kingstree, South Carolina, leaving them in a parking lot in the downtown area. During the ride into town, Mack noticed that Kevin was carrying a rifle that he had covered with a white towel and that TLlmon was carrying a book bag.
At about 10:00 a.m., defendants entered Financial Lenders, a finance company in downtown Kingstree. Two employees, Ava Rogers and Sandra Gaymon, were working that morning, and a customer, Earletha Mouzon, was also in the building. Gaymon and Mouzon were discussing business in a small office near the front of the building and saw defendants enter and walk toward the office where Rogers was working. Mouzon saw that one defendant was carrying a rifle. She immediately left the building and called the police. The taller defendant, later identified as Kevin, pointed the rifle at Rogers and demanded the keys to her car. She gave the keys to him. Defendants then ordered Rogers and Gaymon to go to the back of the building. Defendants then told the two women to go into the bathroom. The taller defendant told the women to stand with their backs toward defendants. While their backs were turned, both women heard clicking sounds made by the rifle. Defendants then left the bathroom, and the two women heard them moving things around and placing objects in front of the door. The women stayed in the bathroom for approximately five minutes. While they were in the bathroom, they heard a vehicle start and leave the parking lot behind the building. The women then left the bathroom and called 911. Rogers found that her purse had been opened and that her wallet had been stolen. She also found that her car, a dark green 1996 Toyota Camry with South Carolina license plate number CEL-269, had been stolen.
Lieutenant Michael Kirby of the Kingstree Police Department investigated the robbery at Financial Lenders. He arrived at the business shortly after the robbery and obtained a description of the suspects and the stolen vehicle. He then issued a “BOLO” advisory (“Be On the Look Out” for certain suspects or vehicles) to all law enforcement agencies in the area which contained the description of the suspects and the stolen vehicle. Lt. Kirby also entered the description of the stolen vehicle into the National Crime Information Center (NCIC) computer network. Later that morning, Lt. Kirby learned that the
*381
suspects were Kevin and Tilmon Golphin. He then went to their grandparents’ home but was unable to locate the suspects.
On that same day, Bobby Owens was on duty as a shift supervisor at the State Highway Patrol Communications Center in Elizabethtown, North Carolina. The Elizabethtown center provided communications support to state troopers in a region comprised of Cumberland, Harnett, Robeson, Onslow, Duplin, Pender, New Hanover, Brunswick, Bladen, and Columbus Counties. At approximately 12:25 p.m., Owens was communicating with troopers in Cumberland County. Trooper Lloyd E. Lowry of the North Carolina State Highway Patrol was on duty in Cumberland County. He was patrolling the northbound lanes on Interstate 95 (1-95). At 12:25 p.m., Owens received a radio call from Trooper Lowry asking for a check on South Carolina registration CEL-269. Owens performed the check on the NCIC computer, and the check indicated that the vehicle with that registration had been stolen in South Carolina. At 12:26 p.m., Owens asked Trooper Lowry whether he had the vehicle stopped, and Trooper Lowry responded that he did. Owens then advised Trooper Lowry, using code “signal three,” to turn off the speaker inside his vehicle so that anyone in the vehicle could not hear the communications and told Trooper Lowry that the vehicle was stolen. Trooper Lowry asked Owens to send him a backup unit. Owens requested Trooper Lowry’s location, and Trooper Lowry answered that he was near the intersection of 1-95 and N.C. Highway 24. At 12:27 p.m., Owens informed Trooper Lowry that there were no highway patrol units available to respond and that he would contact the Cumberland County Sheriff’s Department to request assistance. Owens called the sheriff’s department, and the dispatcher acknowledged the request and told Owens that a car would be dispatched to the scene. At 12:29:12 p.m., Owens called Trooper Lowry and informed him that a sheriff’s department unit was en route to assist. Trooper Lowry informed Owens that a subject was in his vehicle and that he was awaiting the backup unit. After this transmission, Owens called the highway patrol office in Fayetteville and informed Sergeant Bill Martin of Trooper Lowry’s situation. Sgt. Martin advised Owens that he would be en route to assist Trooper Lowry and asked Owens to attempt to contact Trooper Lowry again. At 12:32 p.m., Owens called Trooper Lowry to inform him that Sgt. Martin was en route to his location and to ask him to verify the description of the vehicle given by the NCIC computer as a dark green Toyota. At 12:32:22 p.m., Trooper Lowry confirmed the description of the vehicle. Owens did not receive any further communication from Trooper Lowry.
*382
On that same day, Susan Gillis was working as a dispatcher with the Cumberland County Sheriffs Department. At 12:28 p.m., she received a telephone call from Owens requesting assistance for Trooper Lowry. Gillis passed the request for assistance to Linda Zema, another dispatcher, who asked for available sheriffs department units in the area of 1-95 and N.C. Highway 24. Deputy David Hathcock responded to the call, and the dispatchers determined that he was the closest unit to the area where Trooper Lowry had requested assistance. Deputy Hathcock was sent to the scene at 12:30 p.m. At 12:33 p.m., Deputy Hathcock reported that he would be reaching the scene in approximately one minute. No further transmissions were received from Deputy Hathcock despite repeated attempts by the dispatchers to contact him.
At 12:38 p.m., Deputy Kelly Curtis of the Cumberland County Sheriffs Department advised the dispatchers that he had arrived at the scene. Seconds later, Deputy Curtis informed dispatchers, “Officers down. Officers down.” He requested immediate assistance. At 12:39 p.m., Deputy Curtis called and advised the dispatchers that two black male suspects were last seen headed northbound on 1-95 driving a dark green Toyota. Shortly thereafter, Deputy Curtis informed the dispatchers that both officers appeared to be dead.
The State presented a number of witnesses who testified regarding the events that occurred along the side of 1-95 near its intersection with N.C. Highway 24 at mile marker 52 in Cumberland County. James Patrick Rogers was driving along the exit ramp which led from westbound Highway 24 onto the service road which led to the northbound lanes of 1-95. As Rogers came down the ramp, he saw that a highway patrol vehicle and a sheriffs department vehicle were stopped in the grassy area between the service road and the northbound lanes of 1-95. The two police vehicles were parked parallel to one another on opposite sides of the grassy area facing northbound. A dark — colored car was pulled over in front of the highway patrol vehicle. Rogers testified that a black male was standing at the rear of the highway patrol vehicle with his hands on the trunk. A state trooper was standing behind him. A second black male was sitting in the front passenger seat of the dark-colored car. A sheriffs deputy was standing near the open door of that vehicle and appeared to be talking to the male seated in the car.
Walter Pearce was traveling on 1-95 north and saw the flashing blue lights of the highway patrol vehicle. As he got close to the vehi
*383
cíes, he saw a state trooper and a black male with braided hair scuffling on the ground at the back of the patrol car. Pearce saw a sheriff’s deputy standing between the police vehicles and a second black male sitting in the front seat of a Toyota Camry that was pulled over in front of the highway patrol vehicle. Pearce continued northbound, and a few minutes later, he saw the same two black males pass him in the Camry. A highway patrol vehicle passed him shortly afterwards, and Pearce saw both the Camry and the highway patrol vehicle leave 1-95 at exit 71.
Marla McDowell was traveling on 1-95 north and saw the police vehicles on the side of the road with a Toyota Camry pulled over in front of them. She saw an officer and a black male struggling on the ground behind the highway patrol vehicle, and another officer and a second black male struggling in the area between the police vehicles and the Camry. She also saw the second black male pull away from the officer and run back toward the Camry.
Janice Hocutt and her niece were traveling south on 1-95 as they approached the scene where two police vehicles and a bluish-green car were pulled over. Hocutt saw a black male, who was wearing an “orange-brownish” hooded sweatshirt, facing south between the green car and the police vehicles. An officer was standing in front of him facing north. Hocutt saw the black male moving toward the officer, and then she saw something brown being sprayed by the officer. The officer began backing away from the black male and then fell. She then saw the black male kick and punch the officer on the ground. She never saw the officer get up. Hocutt identified Tilmon as the black male she saw kicking and punching the officer on the ground.
Wilbur Brannan was traveling northbound on 1-95 and passed the scene. He saw the highway patrol vehicle with its blue lights flashing, and as he passed it, he saw a state trooper lying facedown on the ground near the back of his vehicle. A black male was bending over the trooper. Brannan saw the black male get up and turn around toward a dark green Toyota Camry parked in front of the highway patrol vehicle. Brannan continued driving northbound and saw the same Toyota Camry with two black occupants pass him a few miles further on 1-95.
Dana Blecke, a pharmacist and former emergency medical technician, was traveling south on 1-95 and saw the blue lights flashing from the highway patrol vehicle. As she passed by, she
*384
saw someone lying in the grass on the side of the road in front of the highway patrol vehicle. She also saw a black person running toward the driver’s side of a car that was parked in front of the highway patrol vehicle. Blecke slowed down and turned around through the median of the interstate and drove back toward the police vehicles. The car parked in front of the police vehicles was now gone. She parked her vehicle and went to the police officer lying in the grass. She could feel no pulse or respirations. She then walked to the state trooper who was lying facedown near the back of his vehicle. By this time, another state trooper who had arrived at the scene helped her roll the trooper’s body. They found no pulse or other signs of life.
Ronald Waters was driving north on 1-95 as he came over a hill and saw the flashing blue lights of the highway patrol vehicle. As he approached the scene, he saw two black males, one taller than the other, moving around in the area between the two police vehicles and the car parked in front of the highway patrol vehicle. He saw an officer wearing a gray shirt and dark pants lying facedown in the grass near the back of the highway patrol vehicle. As he drove almost parallel with the highway patrol vehicle in the right lane of 1-95, he saw that one of the black males had what appeared to be an “automatic” handgun in his hand. At that time, Waters, who had slowed down, accelerated quickly past the scene. He pulled off approximately two hundred yards further up the road, got out of his vehicle, and called 911 on his cellular phone. He looked back toward the scene and saw the taller black male shoot one of the officers four or five times. The two black males then got into the Toyota Camry and drove north on 1-95. Waters saw that other motorists had stopped, and he decided to follow the Camry. Waters remained on his cellular phone talking to the 911 operator while following the Camry. He followed the Camry until it left 1-95 at exit 55, Murphy Road. Waters saw the vehicle turn off onto a dirt road near the exit. Waters stopped his car and watched the subjects. A few minutes later, the subjects got back in the Camry and drove over the bridge to the other side of the interstate. Waters noted that the license plate had been removed from the Camry. Waters waited along the side of the ramp that led back to 1-95 north. He soon noticed the Camry come back over the top of the bridge and turn onto the ramp beside him. As the Camry pulled alongside Waters’ vehicle, Waters saw the barrel of a rifle being pointed out the window toward him. He leaned over in his seat and accelerated quickly. He heard three shots hit his vehicle, and subsequently, discovered the vehicle was disabled. Waters heard the other vehicle’s engine revving
*385
higher and thought it had left, so he raised his head to look out the window. He saw the Canary drawing almost parallel with his window just four to six feet away. Waters testified that the black male holding the rifle smiled at him and then pulled the trigger. The rifle clicked as if it were jammed or out of ammunition. The black male pulled the rifle back into the Camry, which sped north on 1-95. Waters identified the individual who pointed the rifle at him as Tilmon, and he identified the rifle pointed at him as the same Russian-made SKS 7.62-mil-limeter rifle seen by Demetric Mack, defendants’ cousin, in his car that morning.
Trooper Kenneth Morgan heard a radio transmission that a trooper was down and proceeded south on 1-95 from exit 72 in Harnett County. As he drove south, he obtained a description of the Toyota Camry and its occupants. At exit 65, just inside the Cumberland County line, Trooper Morgan waited on an exit ramp facing south. Just after 12:52 p.m., Trooper Morgan observed a green Toyota Camry driving north on 1-95. Trooper Morgan drove down the northbound exit ramp to attempt to overtake the Camry. He noted that there was no license plate on the vehicle and that it swerved quickly from the left lane over to the emergency lane on the far right and began accelerating rapidly. Trooper Morgan pursued the vehicle at speeds up to 120 miles per hour as the Camry veered from lane to lane heading north. At exit 71, the Camry drove up the ramp but failed to make the turn. It rolled at least once down an embankment and came to rest on its wheels. Trooper Morgan saw the two suspects run from the vehicle toward a group of tractor-trailers that were parked near a tire repair shop.
Police officers from the Harnett County Sheriff’s Department, the Cumberland County Sheriff’s Department, the Dunn Police Department, and the State Highway Patrol searched the area and apprehended Tilmon and Kevin. A Glock 9-millimeter handgun, later identified as Deputy Hathcock’s weapon, was found beside Tilmon as he was arrested, and a Beretta .40-caliber handgun, identified as Trooper Lowry’s weapon, was found under the steps of a home near where Kevin was captured. Deputy Hathcock’s Glock handgun was fully loaded and did not exhibit any signs of being fired. Trooper Lowry’s Beretta handgun was found in a cocked position, ready to fire. Only five cartridges remained in the weapon, indicating that if the weapon had been fully loaded when taken, six cartridges were missing. The SKS rifle was recovered from the wrecked Camry. The top cartridge in the magazine had misfed, causing the
*386
rifle to jam. Tilmon and Kevin were transported by the State Highway Patrol to the Cumberland County Sheriffs Department where they were questioned.
At the sheriffs department, Kevin waived his juvenile rights and gave a statement to Special Agent Jay Tilley of the State Bureau of Investigation (SBI). Agent Tilley and Detective Ray Wood of the Cumberland County Sheriffs Department interviewed Kevin. Kevin admitted that he and Tilmon stole the Camry in Kingstree that morning and headed north on 1-95, intending to drive to Richmond, Virginia. A state trooper pulled them over in North Carolina. The trooper asked Kevin for his license, and Kevin gave him Tilmon’s South Carolina license. The trooper told Kevin he was stopped for not wearing a seat belt and asked him to get out of the Camry and sit in the patrol vehicle. Kevin saw the trooper typing on his computer and talking into his telephone. Kevin heard the trooper ask for another car to come and assist him.
Kevin stated that he saw a different kind of police car drive up beside the trooper’s car and that a police officer wearing a different uniform got out and came over to the trooper’s car. The trooper got out of the car and told Kevin to “sit tight.” The trooper then came around to the passenger side where Kevin was sitting, pulled out his pistol, opened the door, and ordered Kevin out of the car. Kevin said that he got out and put his hands on the hood of the car. The trooper told the other police officer to “get the guy” in the Camry. Kevin asked why he was being arrested and was told to “shut up.” The trooper pushed Kevin’s head down and put him in an arm lock. Kevin stated that he resisted and tried to get free. The trooper pushed Kevin to the ground. The other officer brought Tilmon back toward the trooper’s car. The trooper told the other officer to spray Kevin with pepper spray. The other officer sprayed Kevin, and Kevin began screaming and kicking at the other officer. At that point, Kevin heard gunshots. His eyes began to clear, and he saw the two police officers on the ground. The trooper tried to grab Kevin, but he shook the trooper away. Kevin then took the trooper’s pistol.
At first, Kevin did not admit shooting the trooper’s pistol and claimed not to have shot any gun that day. After being told that .40-caliber shell casings had been found at the scene and that gunshot residue tests had been performed on his hands, Kevin admitted firing the trooper’s handgun. He said he did not know how many times he shot the gun, but it was pointed at the trooper when he did so.
*387
After he fired the gun, Kevin got into the passenger seat of the Camry, and he and Tilmon drove north on 1-95. He and Tilmon left the interstate at the next exit and stopped on top of a bridge where they switched places. Kevin continued driving north on 1-95, and they were chased by several police cars. Kevin said that he tried to get away, but wrecked the car when he attempted to exit the interstate. He and Tilmon ran from the car, but both were caught.
Later in the interview, Kevin admitted that Tilmon had shot at a Jeep that was following them on 1-95 and that had stopped at the same exit where they switched drivers. Kevin said that Tilmon told him he was trying to shoot at the tires of the vehicle. Kevin also admitted that Tilmon never shot the trooper’s handgun and that Tilmon never had the trooper’s handgun in his possession.
Tilmon was interviewed at the sheriff’s department by Special Agent Neil Godfrey of the SBI and Detective Mike Casey of the Cumberland County Sheriff’s Department. Agent Godfrey advised Tilmon of his rights, and Tilmon asked to speak with an attorney. Tilmon was informed that investigators could no longer talk with him because he had requested an attorney, but they asked him several biographical questions. After he answered the questions, Tilmon stated he wanted to tell the investigators what had happened.
Tilmon’s description of the events was very similar to Kevin’s. When the Camry was pulled over by the state trooper, the trooper told them he had pulled them over because Kevin was not wearing his seat belt. Kevin and the trooper went back to the trooper’s car while Tilmon waited in the Camry. Eventually, he saw another police car pull up beside them. He saw the other officer get out and walk toward the trooper’s car. He then saw Kevin and the trooper at the back of the trooper’s vehicle, and Kevin was pushed up against the vehicle. Tilmon got out of the Camry and walked back toward them. The other officer came toward him, pushed him up against the Camry, and patted him down. The officer then walked with him back toward the trooper’s car where Kevin and the trooper were on the ground struggling. Tilmon said he heard Kevin say that he could not breathe. The trooper then told the other officer to spray Kevin with pepper spray. The officer sprayed Kevin and then turned to spray Tilmon. Tilmon knocked the canister from the officer’s hand and ran back toward the Camry. He got the rifle from the backseat of the car. Tilmon said he pointed the rifle directly at the other officer who was about nine to twelve feet away; looked him right in the eyes; and shot him. Tilmon
*388
said the other officer appeared to be dead. He then walked over to where the trooper was on top of Kevin, aimed at the trooper’s side, and shot him. Tilmon said he aimed at the trooper’s side because he did not want to kill him. Tilmon then ran over to the other officer, took the handgun from his holster, and went to the driver’s side of the Camry. He and Kevin drove north on 1-95 for a few miles, then exited and switched places. Tilmon stated he shot at the tires of a vehicle that had been following them. He and Kevin then continued driving north on 1-95 and were captured a short while later after they were chased by other police cars.
Tilmon originally stated that he had not fired a gun that day but later admitted that he “probably had” shot a gun but could not remember doing so. Subsequently, Tilmon was able to recount how the rifle “jumped” as he shot the trooper. Tilmon also made no mention of the use of pepper spray by either officer but later remembered that the trooper told the other officer to spray Kevin. Additionally, Tilmon said nothing about his encounter with Waters during the first portion of his interview, but later described shooting at the tires of the Jeep in detail.
Autopsies were performed on the bodies of Trooper Lowry and Deputy Hathcock. Three .40-caliber bullets that were fired from Trooper Lowry’s handgun were recovered from his body along with a 7.62-millimeter bullet fired from the SKS rifle. An additional 7.62-millimeter bullet was found inside the body bag used to transport Trooper Lowry’s body. Trooper Lowry was shot at least seven and possibly eight times, with several gunshots coming from close range. Trooper Lowry suffered potentially fatal wounds from both weapons. One .40-caliber bullet fired from Trooper Lowry’s handgun and two 7.62-millimeter bullets fired from the SKS rifle were recovered from Deputy Hathcock’s body. Deputy Hathcock suffered four gunshot wounds to his chest and abdomen and one gunshot wound to his wrist. Any of the four wounds to his chest and abdomen would have been fatal. Those wounds were made by both .40-caliber and 7.62-millimeter bullets.
PRETRIAL ISSUES
By assignments of error, both Kevin and Tilmon argue the trial court violated their federal and state constitutional rights to be present at every stage of their capital trial when it ruled the jury would be drawn from a special venire from Johnston County Specifically, defendants claim they should have been present during out-of-court
*389
meetings relating to change of venue or a special venire. Defendants argue the right to be present includes the right to be present during the meetings concerning venue because the discussions were substantially related to the fullness of their rights to defend against the charges.
See United States v. Gagnon,
470 U.S. 522, 526 , 84 L. Ed. 2d 486, 490 (1985). Defendants further argue that because the meetings involved venue for jury selection and trial, they were particularly critical to defendants, and not merely administrative as in
State 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.
*390
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 [sic] 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, unrecorded 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 tri
*391
bunals 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),
*392
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 case, on 5 January 1998, there was a hearing at which both defendants, through counsel, stipulated to a transfer of venue to allow jury selection in a county other than Cumberland County with the trial to be held in Cumberland County. The trial court proposed changing venue for the limited purpose of jury selection from a special venire of Johnston County residents. The trial court asked both defendants if they agreed to the proposal, and both defendants, through counsel, answered in the affirmative. Thereafter, on 13 January 1998, the trial court entered an “ORDER FOR SPECIAL VENIRE” which provided that “venue . . . has been ordered changed to Johnston County as of February 26th, 1998 for the selection of a jury.” Additionally, the trial court stated “that. . . due to the number of defendants and the fact that the charges involve the first degree murders of two law enforcement officers, the jury selection process in these matters will require that a Special Venire of jurors be summoned.”
As Kevin never moved for a change of venue, N.C.G.S. § 15A-957 does not apply in the instant case. In addition, there is no violation of N.C.G.S. § 15A-133 as Kevin argues because there was a ruling by the trial court on the issue of venue for jury selection. Given the nature and circumstances of the alleged crimes against two law enforcement officers and defendants’ acquiescence to the stipulation and proposal at the hearing, the trial court had the inherent authority to order the change of venue for the limited purpose of jury selection from a special venire of Johnston County residents. Moreover, Kevin has not shown the trial court abused its discretion in ordering the limited change of venue. Kevin’s assignment of error has no merit.
By assignments of error, both defendants argue the trial court violated their federal and state constitutional rights to have a jury selected from a representative cross-section of the community in which the crime occurred. We disagree.
Initially, we address the State’s argument that defendants did not preserve this issue for appellate review. Generally, “[t]his Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.”
State v. Eason,
328 N.C. 409, 420 , 402 S.E.2d 809, 814 (1991);
see also
N.C. R. App. P. 10(b)(1). In this case,
*393
there is no indication from the record that defendants objected to the special venire from Johnston County. In fact, defendants, through counsel, agreed with the trial court’s proposal of a special venire from Johnston County. Thus, defendants waived appellate review of this assignment of error. Nevertheless, we elect, in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, to review these assignments of error.
See
N.C. R. App. P. 2.
The state and federal constitutional guarantees of a trial by a jury of the accused’s peers “assures that members of a defendant’s ‘own race have not been systematically and arbitrarily excluded from the jury pool which is to decide [his] guilt or innocence.’ ”
State v.
Bowman, 349 N.C. 459, 467 , 509 S.E.2d 428, 434 (1998) (quoting
State v. McNeill,
326 N.C. 712, 718 , 392 S.E.2d 78, 81 (1990)) (alteration in original),
cert. denied,
— U.S. —, 144 L. Ed. 2d 802 (1999). In
Duren v. Missouri,
439 U.S. 357, 364 , 58 L. Ed. 2d 579, 587 (1979), the United States Supreme Court established a three-prong test to determine whether the right to a fair cross-section in the jury venire had been violated. To establish a
prima facie
case of disproportionate representation in the jury venire, a defendant must show:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Id., quoted in Bowman,
349 N.C. at 468, 509 S.E.2d at 434 .
In the instant case, defendants claim, according to the 1990 Census data, 60% of the residents of Cumberland County are Caucasian, and 31.8% are African-American; and 80% of the residents of Johnston County are Caucasian, and 17.5% are African-American. Thus, defendants contend, African-Americans were underrepresented in the jury pool by 45%.
There is no question in the instant case that defendants satisfied the first prong of the
Duren
test because African-Americans are unquestionably a “distinct” group for purposes of the
Duren
analysis.
See Peters v. Kiff
407 U.S. 493, 498-99 , 33 L. Ed. 2d 83, 91 (1972).
In determining whether there is disproportionate representation under the second prong of
Duren ,
this Court considers absolute disparity figures on a case-by-case basis.
See State v. Hough,
299 N.C.
*394
245, 252, 262 S.E.2d 268, 273 (1980). “Absolute disparity” in the instant case is the percentage of African-Americans in Cumberland County minus the percentage of African-Americans in Johnston County.
See id.
at 251, 262 S.E.2d at 272 . Defendants, however, calculated the comparative disparity, or the percentage of absolute disparity between the counties divided by the percentage of African-Americans in Cumberland County.
See id.
at 251-52, 262 S.E.2d at 272 . To calculate the absolute disparity, we subtract 17.5% (the percentage of African-Americans in Johnston County) from 31.8% (the percentage of African-Americans in Cumberland County); thus, the absolute disparity is 14.3%, much lower than the 45% comparative disparity reported by defendants.
This Court has held various percentages of absolute disparity, standing alone, are not unfair and unreasonable.
See Bowman,
349 N.C. at 468 , 509 S.E.2d at 434 (absolute disparity of 16.17%);
State v. Price,
301 N.C. 437, 447 , 272 S.E.2d 103, 110 (1980) (absolute disparity of 14%). The reasoning is that a defendant is “ ‘not entitled to a jury of any particular composition,... [or to] a jury which mirrors the presence of various and distinctive groups within the community.’ ”
Bowman,
349 N.C. at 468 , 509 S.E.2d at 434 (quoting
Price,
301 N.C. at 448 , 272 S.E.2d at 110-11 );
see also Apodaca v. Oregon,
406 U.S. 404 , 32 L. Ed. 2d 184 (1972). In addition, the trial by jury right “ ‘carries with it the right to be tried before a body which is selected in such a manner that competing and divergent interests and perspectives in the community are reflected rather than reproduced absolutely.’ ”
Bowman,
349 N.C. at 468-69 , 509 S.E.2d at 434 (quoting
Price,
301 N.C. at 448 , 272 S.E.2d at 111 );
see also Taylor v. Louisiana,
419 U.S. 522 , 42 L. Ed. 2d 690 (1975).
As we stated in
Bowman
and
Price ,
defendants are not entitled to a special venire from the population of a county which exactly mirrors the population of Cumberland County as long as the venire was selected in a manner in which various interests were represented. While the population of Johnston County is not the mirror image of the population of Cumberland County, African-Americans were represented in Johnston County, and there is only a 14.3% absolute disparity. Therefore, we cannot say the absolute disparity between Cumberland County and Johnston County, standing alone, is unfair or unreasonable.
As to the third prong of
Duren ,
this Court has held “[t]he fact that a particular jury or series of juries does not statistically reflect the
*395
racial composition of the community does not in itself make out an invidious discrimination forbidden by the [Equal Protection] Clause.”
Washington v. Davis,
426 U.S. 229, 239 , 48 L. Ed. 2d 597, 607 (1976),
quoted in State v. Avery,
299 N.C. 126, 130 , 261 S.E.2d 803, 806 (1980);
see also Bowman,
349 N.C. at 469 , 509 S.E.2d at 434-35 (holding the defendant “failed to present any evidence showing that the jury-selection process was tainted by the systematic exclusion of African-Americans from the jury pool”). Moreover, “[statistics concerning one jury pool, standing alone, are insufficient to meet the third prong of
Duren.” Bowman,
349 N.C. at 469, 509 S.E.2d at 435 .
Likewise, in the instant case, the fact that the racial composition of Johnston County differs from that of Cumberland County is not sufficient to show “systematic exclusion.” The statistics concerning this one jury pool cannot satisfy the “systematic exclusion” requirement of the third prong of
Duren. See id.
Therefore, defendants have failed to establish
aprima facie case
of disproportionate representation, and these assignments of error are overruled.
By assignments of error, both defendants challenge the sufficiency of the short-form murder indictments. Kevin argues the trial court committed constitutional error by entering judgment on his first-degree murder convictions where the indictments were insufficient to charge this offense. Tilmon argues the trial court erred in denying his motion to dismiss the murder indictments. Both defendants contend the short-form indictments do not allege the specific elements of first-degree murder that defendants acted with premeditation and deliberation in violation of their federal constitutional rights.
We recently addressed this issue in
State v. Wallace,
351 N.C. 481 , 528 S.E.2d 326 (2000), and
State v. Braxton,
352 N.C. 158 , - S.E.2d - (2000), and we decline to revisit the issue in the instant case. Defendants’ arguments that the short-form murder indictments were insufficient are overruled.
By assignments of error, both defendants argue the trial court erred by failing to require the State to disclose the aggravating circumstances on which it intended to rely at sentencing. Defendants contend the indictment should have contained the aggravating circumstances, and the trial court erred in denying their pretrial motions for disclosure of aggravating and mitigating circumstances. Specifically, defendants rely on
Jones v. United States,
526 U.S. 227 , 143 L. Ed. 2d 311 (1999), and argue that because aggravating circum
*396
stances may increase the penalty for first-degree murder from life imprisonment to death, defendants are entitled to pretrial notice, within the indictment or other binding instrument, of the aggravating circumstances the State intends to use at sentencing. We disagree.
The United States Supreme Court has previously held an indictment “need not set forth facts relevant only to the sentencing of an offender found guilty of the charged crime.”
Almendarez-Torres v. United States,
523 U.S. 224, 228 , 140 L. Ed. 2d 350, 358 (1998). In
Jones ,
the Supreme Court recognized the difference between elements of an offense and sentencing factors when it stated, “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that
elements
must be charged in the indictment.”
Jones,
526 U.S. at 232 , 143 L. Ed. 2d at 319 (emphasis added).
On the same issue, this Court has held “the State need not set forth in an indictment the aggravating circumstances upon which it will rely in seeking a sentence of death.”
State v. Young,
312 N.C. 669, 675 , 325 S.E.2d 181, 185 (1985). In
State v. Williams,
304 N.C. 394, 422 , 284 S.E.2d 437, 454 (1981),
cert. denied,
456 U.S. 932 , 72 L. Ed. 2d 450 (1982), we held N.C.G.S. § 15A-2000(e), which sets forth the aggravating circumstances the jury may consider, made the defendant fully aware of what the State had to prove before a death sentence could be imposed.
As to defendants’ motions to disclose the aggravating circumstances, this Court has held a trial court may not require the State to disclose which aggravating circumstances it intends to rely on at the sentencing phase.
See State v. McKoy,
323 N.C. 1, 44 , 372 S.E.2d 12, 36 (1988),
sentence vacated on other grounds,
494 U.S. 433 , 108 L. Ed. 2d 369 (1990);
State v. Holden,
321 N.C. 125, 153 , 362 S.E.2d 513, 531 (1987),
cert. denied,
486 U.S. 1061 , 100 L. Ed. 2d 935 (1988). In addition, we have stated that N.C.G.S. § 15A-2000(e) sets forth the only aggravating circumstances upon which the State may rely in seeking the death penalty, and the “notice provided by this statute is sufficient to satisfy the constitutional requirements of due process.”
Holden,
321 N.C. at 154 , 362 S.E.2d at 531 .
The United States Supreme Court’s recent opinion in
Apprendi v. New
Jersey, - U.S. -, - L. Ed. 2d -, 68 U.S.L.W. 4576 (2000), does not affect our prior holdings regarding the inclusion of aggravating circumstances in an indictment. The Supreme Court cites its previous holding in
Almendarez-Torres
that differentiates aggravat
*397
ing circumstances from elements of a crime and notes that it “has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes.”
Apprendi ,
— U.S. at —, — L. Ed. 2d at —, 68 U.S.L.W. at 4584-85;
see also Almendarez-Torres,
523 U.S. at 228 , 140 L. Ed. 2d at 358 .
Considering the Supreme Court’s continued recognition of the •difference between elements of a crime and the aggravating circumstances in a capital sentencing procedure,
see Walton v. Arizona,
497 U.S. 639 , 111 L. Ed. 2d 511 (1990), our prior holdings are consistent with the decisions in
Jones
and
Apprendi .
Therefore, as we stated previously, an indictment need not contain the aggravating circumstances the State will use to seek the death penalty,
see Young,
312 N.C. at 675 , 325 S.E.2d at 185 , and the trial court may not order the State to disclose the aggravating circumstances upon which it intends to rely,
see Holden,
321 N.C. at 153 , 362 S.E.2d at 531 . Thus, in the instant case, the lack of aggravating circumstances on the indictment did not create error, and the trial court did not err in denying defendants’ motions to order disclosure of the aggravating circumstances. Accordingly, these assignments of error are overruled.
By assignment of error, Tilmon argues the trial court committed error and denied him due process of law when it denied his pretrial motion to sever the cases and overruled his objections to improper joinder. We disagree.
The facts show that on 10 February 1998, Tilmon moved for severance of his case from that of Kevin to allow the pursuit of antagonistic defenses, to promote a fair determination of guilt or innocence, and to prevent a prejudicial outcome. Citing
Bruton v. United States,
391 U.S. 123 , 20 L. Ed. 2d 476 (1968), Tilmon contended each defendant made out-of-court statements regarding the other defendant; and citing
State v. Marlow,
310 N.C. 507 , 313 S.E.2d 532 (1984), Tilmon argued he and Kevin had irreconcilable differences. Subsequently, on 16 February 1998, the State made a motion to join the cases on the grounds the several offenses charged were part of a common scheme or plan; were part of the same act or transaction; and were so closely connected in time, place, and occasion that it would be difficult to separate one charge from proof of the others.
At a pretrial hearing, Tilmon requested an
ex parte, in camera
hearing regarding severance on the ground he needed to divulge his
*398
defense to the trial court in order to fully and effectively argue this motion. Tilmon also argued there were antagonistic defenses with Kevin. Over the State’s objection, the trial court allowed his request. Thereafter, all persons left the courtroom except Tilmon, his counsel, security personnel, the clerk, the judge, and the court reporter.
After the excluded parties were returned to the courtroom, Tilmon argued the cases should be separated because the conflict between his and Kevin’s respective positions was such that he would be denied a fair trial. Additionally, Tilmon argued, pursuant to
State v. Nelson,
298 N.C. 573 , 260 S.E.2d 629 (1979),
cert. denied,
446 U.S. 929 , 64 L. Ed. 2d 282 (1980), that evidence concerning Kevin’s seized luggage
1
should be held to conflict with Tilmon’s defense and/or alleged motive. The trial court denied Tilmon’s motion for severance and allowed the State’s motion for joinder.
The North Carolina General Statutes provide for joinder of defendants subject to the following provisions:
(b) Separate Pleadings for Each Defendant and Joinder of Defendants for Trial.
(1) Each defendant must be charged in a separate pleading.
(2) Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial:
a. When each of the defendants is charged with accountability for each offense; or
b. When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction; or
*399
3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
N.C.G.S. § 15A-926(b) (1999). “The propriety of joinder depends upon the circumstances of each case and is within the sound discretion of the trial judge.”
State v.
Pickens, 335 N.C. 717, 724 , 440 S.E.2d 552, 556 (1994). The trial court’s discretionary ruling will not be disturbed on appeal absent a showing that joinder deprived the defendant of a fair trial.
See id.; State v.
Evans, 346 N.C. 221, 232 , 485 S.E.2d 271, 277 (1997),
cert. denied,
522 U.S. 1057 , 139 L. Ed. 2d 653 (1998);
Nelson,
298 N.C. at 586 , 260 S.E.2d at 640 .
Motions for severance and objections to joinder are governed by N.C.G.S. § 15A-927(c), which provides:
(c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.
(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses:
a. A joint trial at which the statement is not admitted into evidence; or
b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or
c. A separate trial of the objecting defendant.
(2) The court, on motion of the prosecutor, or on motion of the defendant other than under subdivision (1) above must deny a joinder for trial or grant a severance of defendants whenever:
a. If before trial, it is found necessary to protect a defendant’s right to a speedy trial, or it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants; or
*400
b. If during trial, upon motion of the defendant whose trial is to be severed, or motion of the prosecutor with the consent of the defendant whose trial is to be severed, it is found necessary to achieve a fair determination of the guilt or innocence of that defendant.
(3) The court may order the prosecutor to disclose, out of the presence of the jurors, any statements made by the defendants which he intends to introduce in evidence at the trial when that information would assist the court in ruling on an objection to joinder of defendants for trial or a motion for severance of defendants.
N.C.G.S. § 15A-927(c) (1999). Thus, “the trial court must deny joinder for trial or grant a severance of defendants whenever it is necessary to promote a fair determination of the guilt or innocence of one or more defendants.”
Pickens,
335 N.C. at 724 , 440 S.E.2d at 556 .
We have said the presence of antagonistic defenses does not, standing alone, warrant severance.
Id.
at 725 , 440 S.E.2d at 556 . Additionally, “ ‘[t]he test is whether the conflict in defendants’ respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial.’ ”
State v. Lowery,
318 N.C. 54, 59 , 347 S.E.2d 729, 734 (1986) (quoting
Nelson,
298 N.C. at 587 , 260 S.E.2d at 640 );
see also Pickens,
335 N.C. at 725 , 440 S.E.2d at 556 . To determine whether the positions of the defendants are so antagonistic, or conflicting, as to be prejudicial, this Court has stated the trial court should grant severance when necessary to avoid an evidentiary battle between the defendants “where the state simply stands by and witnesses ‘a combat in which the defendants [attempt] to destroy each other.’ ”
Nelson,
298 N.C. at 587 , 260 S.E.2d at 640 (quoting
People v. Braune,
363 Ill. 551, 557 , 2 N.E.2d 839, 842 (1936)) (alteration in original).
The State in the instant case did not stand by and rely on Kevin’s statement to prove its case.
See State v. Green,
321 N.C. 594, 601 , 365 S.E.2d 587, 591-92 (holding the State did not rely on the codefendant’s testimony, but was able to show independent evidence of defendant’s guilt),
cert. denied,
488 U.S. 900 , 102 L. Ed. 2d 235 (1988). In his statement, Kevin claimed he was debilitated by pepper spray, and while in this condition, he heard gunshots. To rebut Kevin’s claim, the State offered contrary evidence on the effects of pepper spray. Contrary to
*401
Tilmon’s argument and to his benefit, the State’s rebuttal evidence actually disproves Kevin’s statement. Moreover, there was overwhelming evidence, including the testimony of several eyewitnesses, of Tilmon’s involvement in the crimes.
See Evans,
346 N.C. at 232 , 485 S.E.2d at 277 (holding there was plenary evidence, irrespective of the codefendant’s statement, that defendant was involved). This rebuttal evidence, along with the direct evidence of Tilmon’s involvement in the crimes, shows the State was not a mere witness to an evidentiary battle between Kevin and Tilmon.
Tilmon also argues the trial court should have severed defendants’ trials because Kevin’s out-of-court statement to police could not be adequately “sanitized” so as to avoid violating
Bruton .
In
Bruton ,
the United States Supreme Court held admission of a statement by a nontestifying codefendant, which incriminates the other defendant, at a joint trial, violated that defendant’s Sixth Amendment right to confront the witnesses against him.
See Evans,
346 N.C. at 231 , 485 S.E.2d at 277 .
Bruton
applies to the states by way of the Fourteenth Amendment.
See Pointer,
380 U.S. at 403 , 13 L. Ed. 2d at 926 ;
State v. Parrish,
275 N.C. 69, 73-74 , 165 S.E.2d 230, 234 (1969).
“The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant. . ., and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation.”
State v. Tucker,
331 N.C. 12, 23-24 , 414 S.E.2d 548, 554 (1992) (quoting
State v. Fox,
274 N.C. 277, 291 , 163 S.E.2d 492, 502 (1968)) (alteration in original).
Tilmon, however, waived any
Bruton
objection by signing the “Notice of Waiver of Right” in which he explicitly “waive[d] any constitutional or statutory objection that [he] may have under
[Bruton]
and N.C.G.S. § 15A-927 regarding the redaction and/or admission of the statement of a nontestifying co-defendant.” Additionally, Tilmon’s attorney stated in open court there was “no objection to the intro
*402
duction of the statement of Kevin Golphin [taken by the agents on the date of his arrest] as it relates to Tilmon Golphin.”
See United States v. Flaherty,
76 F.3d 967, 971 (8th Cir. 1996) (holding the defendant waived
a Bruton
challenge when he did not mention
Bruton
when the codefendant’s statements were admitted and the trial court gave the cautionary instruction requested by defendant);
State v. Hutchins,
303 N.C. 321, 341-42 , 279 S.E.2d 788, 801 (1981) (holding constitutional guarantees are not absolute as defendants “may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it”). Therefore, we conclude Tilmon waived appellate review of severance based on a
Bruton
violation.
Tilmon further contends, pursuant to
State v. Boykin, 307
N.C. 87, 296 S.E.2d 258 (1982), and State
v. Alford,
289 N.C. 372 , 222 S.E.2d 222 ,
death sentence vacated sub nom. Carter v. North Carolina,
429 U.S. 809 , 50 L. Ed. 2d 69 (1976), that severance was appropriate because he was precluded from offering exculpatory evidence that would have been available if the cases had not been joined. However, contrary to Tilmon’s argument, this case is distinguishable from
Boykin
and
Alford.
In
Boykin ,
this Court held the defendant “was prejudiced by the court’s consolidation of cases because he was prevented from testifying as to his motive in making his ‘false confessions.’ ”
Boykin,
307 N.C. at 91 , 296 S.E.2d at 260 . The trial court allowed the State to introduce the admission, but because of the joint trial, the trial court did not permit the defendant to explain that the “confessions” were intended to protect the codefendant, who had previously been convicted of murder.
Id.
This Court also held the defendant was prevented from eliciting testimony that the codefendant had also confessed to the crime.
Id.
The instant case is distinguishable in that Tilmon was not prevented from providing a motive for his own statements as was the case in
Boykin .
Tilmon contends other witnesses did not wish to testify because of the negative effect on Kevin. Tilmon’s inability to elicit information about a possible motive Kevin may have had is also dissimilar from the situation in
Boykin
where the defendant was prevented from actually testifying about his own motive for giving false confessions.
In
Alford,
this Court held the defendant was entitled to a separate trial where the codefendant’s statement could have corroborated the defendant’s alibi, but neither the State nor the defendant offered the statement into evidence, and the defendant could not force the codefendant to testify because of the codefendant’s Fifth Amendment
*403
right against self-incrimination.
Alford,
289 N.C. at 387-88 , 222 S.E.2d at 232 . In the instant case, unlike in
Alford,
Tilmon was not prevented from offering evidence which would support an alibi. Tilmon merely contends some witnesses would not testify because of the negative statements they would have to make about Kevin; however, contrary to
Alford
where the defendant could not force the codefendant to testify,
see id.,
Tilmon could have subpoenaed the witnesses to testify for him. Tilmon also states he was prevented from asking questions about Kevin’s motive to kill both victims. Such questioning would not exculpate Tilmon, or clear him from guilt, as would the alibi evidence in
Alford. See id.
Therefore, the instant case is distinguishable from both
Boykin
and
Alford.
Additionally, the evidence in the instant case clearly supports consolidation of defendants’ trials and the trial court’s grant of the State’s motion for joinder. Kevin and Tilmon were both charged with two counts of first-degree murder; two counts of robbery with a dangerous weapon; and one count each of assault with a deadly weapon with intent to kill, discharging a firearm into occupied property, and possession of a stolen vehicle. The evidence tended to show the offenses arose out of a common scheme and were part of the same transaction.
See
N.C.G.S. § 15A-926(b)(2). Therefore, the trial court did not err in denying Tilmon’s motion for severance and granting the State’s motion for joinder.
In another assignment of error, Tilmon argues the trial court erred in denying his pretrial motion for discovery of Trooper Lowry’s and Deputy Hathcock’s personnel files. Tilmon relies on his federal constitutional right to material evidence which is in the hands of the prosecution. Additionally, Tilmon relies on the rules of evidence pertaining to the admissibility of relevant evidence in arguing he was entitled to the personnel files. Tilmon further argues the files may have shown prior acts of lethal force which might have impacted the jury on the issue of whether Tilmon had a reasonable belief that Kevin was the victim of excessive force by the law enforcement officers on the day in question. We disagree.
Initially, we note Tilmon claims the denial of this requested discovery violated his state and federal constitutional rights. However, Tilmon’s motion for discovery of the personnel files did not allege any constitutional violations. As such, the trial court did not rule upon any possible constitutional violations. “ ‘This Court is not required to pass upon a constitutional issue unless it affirmatively appears that
*404
the issue was raised and determined in the trial court.’ ”
State v. Nobles,
350 N.C. 483, 495 , 515 S.E.2d 885, 893 (1999) (quoting
State v. Creason,
313 N.C. 122, 127 , 326 S.E.2d 24, 27 (1985)). Therefore, we need not address Tilmon’s allegation that the denial of his motion was a violation of his state and federal constitutional rights.
See also
N.C. R. App. P. 10(b)(1).
Furthermore, discovery in the superior court is governed by chapter 15A, article 48 of the North Carolina General Statutes. N.C.G.S. § 15A-903 specifically governs disclosure of evidence by the State and provides in pertinent part:
(d) Documents and Tangible Objects. — Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof which are
within the possession, custody, or control of the State
and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.
N.C.G.S. § 15A-903(d) (1999) (emphasis added). We have previously held “ ‘[w]ithin the possession, custody, or control of the State’ as used in th[is] provision[] means within the possession, custody or control of the prosecutor or those working in conjunction with him and his office.”
State v. Crews,
296 N.C. 607, 616 , 252 S.E.2d 745, 751-52 (1979);
see also State v. Pigott,
320 N.C. 96, 102 , 357 S.E.2d 631, 635 (1987).
In the instant case, on 10 February 1998, Tilmon filed a motion for discovery of personnel files in which he requested that the trial court conduct an
in camera
review and then provide defendant any evidence deemed exculpatory as part of discovery. In the motion, Tilmon referred to newspaper articles published after the crimes which concerned an incident involving disciplinary action against Trooper Lowry two years prior to the crimes. At a pretrial hearing, the trial court denied the motion stating there was no justification for an
in camera
examination at that time, but the trial court reserved the right to order the files’ production at a later time.
There was no violation of this discovery statute in the instant case. The list of discoverable items in the statute does not include
*405
victims’ personnel files,
see
N.C.G.S. § 15A-903(d), and the personnel files were not in the possession, custody, or control of the prosecutor in this case,
see id. See also State v. Cunningham,
344 N.C. 341, 352-53 , 474 S.E.2d 772, 776 (1996) (holding regardless of whether the defendant had a right to an
in camera
inspection of the personnel file, he was not prejudiced by the trial court’s refusal to allow it because the victim’s conduct as a police officer would have no relevance to the question at issue in that case). Therefore, the trial court did not err in denying Tilmon’s motion to discovery of the victims’ personnel files.
By assignments of error, both Kevin and Tilmon argue the trial court erred in denying Tilmon’s pretrial motion to suppress the incriminating statement Tilmon made to law enforcement officers after his arrest. Tilmon argues the police continued the custodial interrogation of him after he had invoked his right to counsel. Based upon this alleged violation, Tilmon contends the trial court should have granted his motion to suppress and the trial court’s error in admitting the statement entitles him to a new trial. Kevin concedes he has no standing to assert Tilmon’s constitutional rights but claims he was prejudiced by the erroneous admission of Tilmon’s statement. Kevin argues Tilmon’s confession directly incriminated Kevin because of the acting in concert theory submitted to the jury, and the jury could have drawn inferences regarding Kevin’s participation in Deputy Hathcock’s murder from omissions in Tilmon’s statement. We disagree.
As to Tilmon’s argument on this issue, we have previously stated that a motion
in limine
was not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.
See State v. Hayes,
350 N.C. 79, 80 , 511 S.E.2d 302, 303 (1999) (per curiam). As a pretrial motion to suppress is a type of motion
in limine,
Tilmon’s pretrial motion to suppress is not sufficient to preserve for appeal the question of the admissibility of his statement because he did not object at the time the statement was offered into evidence.
See id.
In addition, while Tilmon’s assignment of error includes plain error as an alternative, his brief contains no specific argument that there is plain error in the instant case. Accordingly, Tilmon’s argument is not properly before this Court.
See
N.C. R. App. P. 10(c)(4);
State v. McNeil,
350 N.C. 657, 681 , 518 S.E.2d 486, 501 (1999),
cert.
denied, - U.S. —, 146 L. Ed. 2d 321 (2000);
State v. Frye,
341 N.C. 470, 496 , 461 S.E.2d 664, 677 (1995),
cert. denied,
517 U.S. 1123 , 134 L. Ed. 2d 526 (1996).
*406
However, given the constitutional nature of Tilmon’s argument, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we will address the merits of Tilmon’s argument.
Both the United States Supreme Court and this Court have held that during a custodial interrogation, if the accused invokes his right to counsel, the interrogation must cease and cannot be resumed without an attorney being present
“unless the accused himself initiates further communication, exchanges, or conversations with the
police.”
Edwards v. Arizona,
451 U.S. 477, 485 , 68 L. Ed. 2d 378, 386 (1981) (emphasis added);
see also Miranda v. Arizona,
384 U.S. 436 , 16 L. Ed. 2d 694 (1966);
State v. Warren,
348 N.C. 80, 97 , 499 S.E.2d 431, 440 ,
cert. denied,
525 U.S. 915 , 142 L. Ed. 2d 216 (1998);
State v. Jackson,
348 N.C. 52, 55 , 497 S.E.2d 409, 411 ,
cert. denied,
525 U.S. 943 , 142 L. Ed. 2d 301 (1998);
State v. Lang,
309 N.C. 512, 521 , 308 S.E.2d 317, 321 (1983).
The term “interrogation” is not limited to express questioning by law enforcement officers, but also includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”
Rhode Island v. Innis,
446 U.S. 291, 302 , 64 L. Ed. 2d 297, 308 (1980);
see also State v. Coffey,
345 N.C. 389, 400 , 480 S.E.2d 664, 670 (1997);
State v. DeCastro,
342 N.C. 667, 684 , 467 S.E.2d 653, 661 ,
cert. denied,
519 U.S. 896 , 136 L. Ed. 2d 170 (1996). The focus of the definition is on the suspect’s perceptions, rather than on the intent of the law enforcement officer, because
Miranda
protects suspects from police coercion regardless of the intent of police officers.
See Innis,
446 U.S. at 301 , 64 L. Ed. 2d at 308 . However, because “the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words' or actions on the part of police officers that they
should have known
were reasonably likely to elicit an incriminating response.”
Id.
at 301-02 , 64 L. Ed. 2d at 308 .
Based on the Supreme Court’s definition of interrogation in
Innis ,
there is a limited exception to
Miranda
for routine questions asked during the booking process.
See Pennsylvania v. Muniz,
496 U.S. 582, 601 , 110 L. Ed. 2d 528, 552 (1990) (plurality opinion) (where the accused made an incriminating statement prior to being read his
Miranda
rights, the Supreme Court held questions regarding a suspect’s name, address, physical characteristics, date of birth, and current age constituted custodial interrogation, but were “nonetheless
*407
admissible because the questions [fell] within a ‘routine booking question’ exception which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services’ ”) (quoting
United States v. Horton,
873 F.2d 180 , 181 n.2 (8th Cir. 1989));
Clayton v.
Gibson, 199 F.3d 1162 (10th Cir. 1999) (where the suspect had been given his
Miranda
rights and had invoked his right to counsel, the Tenth Circuit Court of Appeals relied on
Muniz,
496 U.S. at 601 , 110 L. Ed. 2d at 552 , in holding there was no constitutional violation because the questions asked fell within the booking exception);
State v. Ladd,
308 N.C. 272, 286 , 302 S.E.2d 164, 173 (1983) (where the suspect had been given his
Miranda
rights and had invoked his right to counsel, this Court relied on the language of
Innis,
446 U.S. at 301 , 64 L. Ed. 2d at 308 , to find an exception to “interrogation” for questions related to the booking process). This exception is consistent with
Innis
because the Supreme Court stated that interrogation includes express questioning as well as “ ‘any words or actions on the part of the police
(other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ”
Ladd,
308 N.C. at 286 , 302 S.E.2d at 173 (quoting
Innis,
446 U.S. at 301 , 64 L. Ed. 2d at 308 ) (alteration in original). In an effort not to infringe upon an accused’s constitutional rights, however, the exception is limited “to
routine informational
questions necessary to complete the booking process that are
not
‘reasonably likely to elicit an incriminating response’ from the accused.”
Id.
at 287, 302 S.E.2d at 173 .
In addition, responses to generalized questions by law enforcement officers, which are not reasonably likely to elicit incriminating responses, are admissible.
See State v. Gray,
347 N.C. 143, 171 , 491 S.E.2d 538, 549 (1997) (asking whether the defendant needed anything was not designed to elicit an incriminating response),
cert. denied,
523 U.S. 1031 , 140 L. Ed. 2d 486 (1998);
State v. Vick,
341 N.C. 569, 581 , 461 S.E.2d 655, 662 (1995) (police captain’s statements during the fingerprinting process that he would talk with the defendant later and answer any of the defendant’s questions at that time were not intended or expected to elicit an incriminating response). Moreover, law enforcement officers can respond to questions posed by a defendant without violating
Innis
or
Edwards. See State v. McQueen,
324 N.C. 118, 132 , 377 S.E.2d 38, 46-47 (1989) (holding the law enforcement officer’s willingness to respond to the defendant’s questions and the actual answers given were not “words or actions . . . [the law enforcement officer]
should have known
were
*408
reasonably likely to elicit an incriminating response” pursuant to
Innis,
446 U.S. 291 , 64 L. Ed. 2d 297 , and the defendant’s statements and questions were voluntary pursuant to
Edwards,
451 U.S. 477 , 68 L. Ed. 2d 378 ).
In the instant case, the transcript of the pretrial hearing concerning Tilmon’s motion to suppress reveals that Agent Godfrey and Detective Casey questioned Tilmon on 23 September 1997. Agent Godfrey advised Tilmon of his constitutional rights. Tilmon stated he wanted to talk with a lawyer. Thereafter, Agent Godfrey informed Tilmon they could not ask Tilmon about his involvement in the shootings of Trooper Lowry and Deputy Hathcock because he had requested to speak with an attorney, but Agent Godfrey told Tilmon they did need to obtain biographical information and background data for the arrest report. Subsequently, Agent Godfrey asked Tilmon for his full name, address, height, weight, next of kin, place of employment, and grade of education he had completed. Then Tilmon asked Agent Godfrey where he would be kept until his trial. Agent Godfrey responded that he would be kept in the Cumberland County jail. Tilmon then informed Agent Godfrey that he was a vegetarian and that his religion allowed him to eat only fish and prohibited anyone from cutting his hair or taking anything from his body. Agent Godfrey asked the name of Tilmon’s religion so he could inform jail management in order to justify Tilmon’s request. In response, Tilmon stated he was a member of the Rastafarian religion. Next, based on the belief that a video camera in Trooper Lowry’s car had recorded the incident, Tilmon asked Agent Godfrey and Detective Casey why they wanted to talk about what had happened because it should have been videotaped. Agent Godfrey responded that he still needed to know why it happened. Agent Godfrey testified that at the time he made this statement, he knew there was no videotape and that neither he nor Detective Casey ever indicated to Tilmon there was a videotape. Tilmon then stated he would tell Agent Godfrey and Detective Casey why it happened. Tilmon proceeded, over a lengthy interview process which included several breaks, to make a statement concerning the shooting incident.
After reviewing the motion, hearing the evidence offered by the State, and giving Tilmon an opportunity to present evidence, the trial court made findings of fact consistent with the above recitation of facts. Thereafter, the trial court concluded as a matter of law:
Tilmon Golphin made a statement to law enforcement officers freely voluntarily and understandingly, after being fully
*409
advised by law enforcement officers of all appropriate constitutional and state statutory rights and federal statutory rights related to the right to counsel and related to rights concerning self-incrimination.
Two, Tilmon Golphin’s motion to suppress his statement of the — on the twenty-third day of September, 1997, should be denied.
Based on the findings of fact and conclusions of law, the trial court denied Tilmon’s motion to suppress.
A trial court is to make an initial determination as to whether a defendant waived his/her right to counsel. Those findings of fact “ ‘are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.’ ”
State v. Peterson,
347 N.C. 253, 255 , 491 S.E.2d 223, 224 (1997) (quoting
State v. Eason,
336 N.C. 730, 745 , 445 S.E.2d 917, 926 (1994),
cert. denied,
513 U.S. 1096 , 130 L. Ed. 2d 661 (1995)). Conclusions of law which are supported by findings of fact are binding on appeal.
Id.
“Further, the trial court’s conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.”
State v. Fernandez,
346 N.C. 1, 11 , 484 S.E.2d 350, 357 (1997).
We conclude the trial court’s findings of fact are supported by competent evidence and are, therefore, binding on appeal.
See Coffey,
345 N.C. 389 , 480 S.E.2d 664 (holding the Court was bound by the trial court’s findings because, assuming
arguendo
there was an interrogation, there was competent evidence in the record to support the trial court’s finding that the defendant initiated the conversation with police after invoking his right to counsel). In addition, the findings of fact support the conclusions of law.
This Court must also determine if the trial court’s conclusions are legally correct. We conclude they are. Although Tilmon asserted his right to counsel and the police continued to ask Tilmon questions,
see Innis,
446 U.S. at 302 , 64 L. Ed. 2d at 308 , the questions were included in the exception for questions used to elicit biographical information,
see Ladd,
308 N.C. at 286 , 302 S.E.2d at 172-73 . In addition, it is unreasonable to say Agent Godfrey should have known his questions concerning Tilmon’s biographical information were reasonably likely to elicit an incriminating response, and there was no reason Agent Godfrey should have known his response to Tilmon’s questions about where he would be housed until the time of trial would elicit an
*410
incriminating response.
See Innis,
446 U.S. at 301-02 , 64 L. Ed. 2d at 308 ;
McQueen,
324 N.C. at 132 , 377 S.E.2d at 46 . Moreover, Tilmon initiated the further discussion when he asked why Agent Godfrey and Detective Casey wanted to talk about the incident when it had been videotaped.
See Edwards,
451 U.S. at 484-85 , 68 L. Ed. 2d at 386 . Agent Godfrey merely responded to Tilmon’s question that they needed to know why it happened. Nothing should have led Agent Godfrey to believe his response to the question would elicit an incriminating response.
See Innis,
446 U.S. at 301-02 , 64 L. Ed. 2d at 308 .
As we have concluded that the trial court’s findings of fact are supported by competent evidence, that the findings of fact support the conclusions of law, and that the conclusions of law are legally correct, we hold Tilmon’s constitutional rights were not violated by the trial court’s denial of his motion to suppress his statement to police. Therefore, this assignment of error is overruled.
Concerning Kevin’s assignment of error, it is well settled that “a defendant’s right to counsel is personal” to the defendant.
State v. Peterson,
344 N.C. 172, 179 , 472 S.E.2d 730, 733 (1996). Kevin concedes he has no standing to assert Tilmon’s constitutional right to counsel. Nevertheless, Kevin argues he was prejudiced by the erroneous admission of the allegedly unconstitutional confession.
Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a party to present a timely request, objection, or motion to the trial court to preserve a question for appellate review.
See
N.C. R. App. P. 10(b)(1). However, Kevin did not make a motion
in limine
to suppress Tilmon’s statement on the basis that both the state and federal constitutions require its exclusion. Nor did Kevin object at the time the statement was offered into evidence at trial. Thus, this issue was not properly preserved. Although Kevin’s assignment of error includes plain error as an alternative, he does not argue specifically and distinctly, pursuant to N.C. R. App. P. 10(c)(4), that there was plain error. Therefore, this assignment of error is not properly before this Court.
JURY SELECTION ISSUES
By assignments of error, both defendants argue, pursuant to N.C.G.S. § 15A-1214(a), the trial court violated its statutory duty to ensure jury selection was conducted in a random manner. Specifically, defendants contend both the trial court’s use of panels
*411
for jury selection and the trial court’s placement of certain prospective jurors into particular jury panels violated the randomness requirement of jury selection, the purpose of which is to protect a defendant’s state and federal constitutional rights to a fair and impartial jury.
Constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.
See Wallace,
351 N.C. at 503 , 528 S.E.2d at 340-41 ;
Nobles,
350 N.C. at 495 , 515 S.E.2d at 893 . However, statutory violations, regardless of objections at the trial court, are reviewable. “When a trial court acts contrary to a statutory mandate, the right to appeal the court’s action is preserved, notwithstanding the failure of the appealing party to object at trial.”
State v. Jones,
336 N.C. 490, 497 , 445 S.E.2d 23, 26 (1994).
In the instant case, defendants cite
Gray v. Mississippi,
481 U.S. 648, 660 , 95 L. Ed. 2d 622, 634 (1987) (holding the improper removal of prospective jurors for cause was a type of constitutional error which was not susceptible to harmless error analysis), and contend their constitutional rights to a fair and impartial jury were violated. However, defendants never objected, on constitutional grounds or otherwise, to the use of panels for jury selection or the manner in which the trial court placed prospective jurors into panels. Thus, defendants have waived review of the constitutionality of the trial court’s actions.
See Nobles,
350 N.C. at 495 , 515 S.E.2d at 893 .
Although defendants failed to object at trial, we review the alleged statutory violation. N.C.G.S. § 15A-1214(a) provides: “The clerk, under the supervision of the presiding judge, must call jurors from the panel by a system of random selection which precludes advance knowledge of the identity of the next juror to be called.” N.C.G.S. § 15A-1214(a) (1999). A challenge to a jury panel: (1) “May be made only on the ground that the jurors were not selected or drawn according to law”; (2) “Must be in writing”; (3) “Must specify the facts constituting the ground of challenge”; and (4) “Must be made and decided before any juror is examined.” N.C.G.S. § 15A-1211(c) (1999);
see also State v. Workman,
344 N.C. 482, 498-99 , 476 S.E.2d 301, 310 (1996) (where this Court found no merit in the defendant’s assignment of error “[i]n light of the fact that defendant failed to follow the procedures clearly set out for jury panel challenges and further failed, in any manner, to alert the trial court to the alleged improprieties”). Defendants in the instant case failed to comply with N.C.G.S. § 15A-1211(c) to challenge the panels; therefore, as
*412
this Court found in
Workman ,
defendants have waived review of their assignments of error.
However, assuming, without deciding, that the trial court violated N.C.G.S. § 15A-1214(a), defendants cannot show prejudicial error. The facts surrounding this issue tended to show that the trial court informed both Kevin and Tilmon of its intention to place the prospective jurors into panels for jury selection. The trial court stated:
I will hear from the state and the defendants as to each of the [hardship] requests, will rule on those. Then from those left, the court — the clerk will draw names and put them into panels. There will be thirty panels. The panels probably will not be of equal number. But the jurors will be randomly drawn and put into the thirty panels.
During jury selection, there were three prospective jurors whose hardship excuses were denied or who did not appear when called and who were placed into specific panels by the trial court. Defendants assigned error to such placement.
First, prospective juror Lance Peedin requested a hardship excuse because he did not have transportation to the courthouse. The trial court suggested placing Peedin in panel number thirty “because if worse came to absolute worse, we could provide him transportation.” The trial court asked if anyone had a problem with placing Peedin in panel number thirty; counsel for both defendants responded, “No, sir.” Peedin was never called to be questioned for inclusion on the jury.
Second, prospective juror Ronald Harris requested a hardship excuse because he was starting a new job as a deputy sheriff and would have to take unpaid days off to serve. The trial court denied the request and placed Harris into panel number thirty. After some courtroom discussion, Kevin’s counsel stated, “We could be out of peremptories by group thirty.” Harris was never called to be questioned for inclusion on the jury.
Lastly, prospective juror Jeffrey Beasley, who was selected to be in panel number two, did not appear in court when called. Beasley later informed the court that his work obligations prevented him from coming. The court listed the alternatives of how to respond to Beasley’s absence: “move him to a later panel” or “go get him.” Tilmon’s counsel stated, “I guess on behalf of Tilmon Golphin, we’re
*413
satisfied if you move him 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 “[n]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,
352 N.C. 1, 13 , 530 S.E.2d 807, 815 (2000) (holding there was a statutory violation, but the defendant could not show he was prejudiced);
State v. Hyde,
352 N.C. 37, 49 , 530 S.E.2d 281, 290 (2000) (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.
*414
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,
352 N.C. at 13 , 530 S.E.2d at 815 ;
Hyde,
352 N.C. at 49 , 530 S.E.2d at 290 . 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[s] [are] not entitled to any particular juror. [The] 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, “evidencing] 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,
352 N.C. at 13 , 530 S.E.2d at 815 (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 injury selection or the trial court’s placement of particular jurors into specific panels.
By assignments of error, both TLlmon 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
*415
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 (1999), the defendant argued the clerk’s
ex parte
contact with jurors violated his right to presence because there was no record of the clerk’s contact with the jurors, and there was no showing the clerk’s contact was limited to the jury questionnaire inquiry. This Court held there was no violation of the defendant’s constitutional rights because “[i]n distributing and gathering the questionnaires, the clerk merely sought to carry out the administrative duties which the trial court had requested,” and the defend
*416
ant failed to show “ ‘how his presence would have been useful to his defense.’ ”
Id.
at 348, 501 S.E.2d at 317 (quoting
Bacon,
337 N.C. at 86 , 446 S.E.2d at 551-52 ); see
also State v. Gay,
334 N.C. 467, 482-83 , 434 S.E.2d 840, 848 (1993) (holding the trial court’s order to the bailiff to remind jurors to follow the court’s instructions is not an instruction as to the law, and such communications do not relate to the defendant’s guilt or innocence because the defendant’s right to presence would not have been useful to his defense as demonstrated by the fact that defendant’s attorney had no objection; thus, while the trial court’s order to the bailiff “may run the risk of violating defendant’s right to be present,” there was no reversible error in the case).
In another case, the defendant argued his right to be present was violated when the bailiff, pursuant to the trial court’s instructions, told the jurors to take a fifteen minute break.
See State v. May,
334 N.C. 609, 614 , 434 S.E.2d 180, 183 (1993),
cert. denied,
510 U.S. 1198 , 127 L. Ed. 2d 661 (1994). The defendant contended that because there was no record of the bailiff’s conversation with the jury, this Court could not know the nature of the conversation, and it would be impossible to reconstruct.
See id.
at 614-15, 434 S.E.2d at 183. This Court held:
Without anything in the record to show something else happened, we will assume the bailiff followed the court’s instructions. ... It would impose a heavy burden on our courts if a court reporter were required to accompany a bailiff every time he is with a jury in order to make a record of what was said.
Id.
at 615, 434 S.E.2d at 183.
In the instant case, after the first three jurors were selected, the trial court instructed the jurors on several matters, including:
Now, in all candor, I anticipate that that is going to take between another three and four weeks to complete it. And I think from your standpoint, having participated in the jury selection process this week, in projecting it out over the selection of basically an additional thirteen jurors, you can believe that that’s probably a fair estimate. Now, I’m not going to ask you to wait, as I promised you in the beginning, in the jury deliberation room while we do this. You will be placed on telephone standby.
When court is recessed, please go to the jury room. The courtroom clerk and the trial court administrator from Cumberland County who are coordinating aspects relating to the
*417
jury will come into the jury deliberation room to talk with you and to get some information from you. The information that they will want will include telephone numbers where you can be reached during the day or in the evening. We need them. And they may ask questions about the best times to reach you and the best numbers to do that. So they will want some fairly complete information about places that we can reach you.
And it may be that if you know between now and then there will be, you know, a couple days where you may be out of town and be at a different number, that will be fine if we can know where to reach you. So they will be trying — they will be getting more information about how to get up with you than we have been getting from the jury generally because you have been selected as jurors in this case.
They will also be giving you some information about the transportation procedure and about the lunch procedure during the trial, including the menu that you will be able to choose from during the trial and the menu selection sheets. So I would ask that you cooperate with them in furnishing the information that they have requested, and if you have questions about the logistics of reporting, you may ask them and they will probably have the answers.
One thing we do not know at this point is exactly the precise location here at the courthouse where you will report. We will have a place and there will be parking provided at that place, but we cannot tell you right now the precise location. When you are called and told to come in, you will be told specifically when to report. The reporting time will be 8:15. That is on the sheet. That will be basically the reporting time each day unless there is something unusual for that day about the court schedule. So the reporting time here at the courthouse in Johnston County or some location near this will be 8:15 in the morning.
The court schedule again 10:00 to 4:00 with an hour for lunch probably from 12:30 to 1:30. There will be a short break in the middle of the morning, short break in the middle of the afternoon. And then at 4:00 go back to the bus, take you back to the same place — well, the place where your car is here in Johnston County. If somebody is driving you here, that is fine. You should be back at the same place. The bus will leave from the same place and come back to the same place which is near where the cars
*418
will be parked. So if somebody is going to pick you up, they could do so at that location.
The trial court gave similar instructions after each of the remaining nine jurors and four alternate jurors were selected.
Defendants argue the clerk’s communication with selected jurors was not merely administrative in nature in that there is a possibility the jurors asked the clerk substantive questions. In support of this argument, defendants point out that, in its instructions to jurors Kirsti Lovette Kearney, Sharon Seals Waugh, and Alice Rayne Stephenson, the trial court added:
If you have questions about the logistics of when you report, where you report — no one can answer or would answer any questions about any other aspect of the trial — but if you have questions about those kind of logistical matters that [the clerk] may be able to answer those questions for you.
Defendants argue this additional instruction indicates there was a problem limiting jurors’ questions to those concerning logistical matters. Defendants also state the trial court did not give this additional instruction to any other group of selected jurors.
The clerk of court’s contact with the selected jurors in the instant case is similar to that in
Bacon, Lemons,
and
May .
The clerk was performing an administrative duty in providing logistical information to newly selected jurors. The clerk obtained telephone numbers of the selected jurors, who were placed on telephone standby and were provided information about where to park and the lunch menu during trial. While the trial court did instruct three jurors with the additional statements as defendants indicated, the trial court also made a similar statement when instructing juror Timothy Hugh Renfrew, but to no other jurors. Later, however, when the trial court instructed alternate juror Audrey Pittman, it stated:
if you will go to the jury deliberation room and wait there for the courtroom clerk, she will come there with the instruction material, with the menu, with the order sheets for the first couple of days, to get your telephone numbers and then
answer any other questions that you have.
Contrary to defendants’ contentions, the trial court’s failure to make a statement to the jurors that followed, similar to the one made to jurors Kearney, Waugh, Stephenson, and Renfrew, and the one given
*419
to alternate juror Pittman, shows there was no such concern that the jurors were asking the clerk inappropriate questions. Moreover, as there is nothing in the record to suggest that anything other than logistics was discussed, and the fact that defendants failed to object, we assume the clerk engaged only in the administrative duties assigned.
See
May, 334 N.C. at 615 , 434 S.E.2d at 183 .
Defendants also argue the trial court indicated the clerk would be discussing transportation procedures, which defendants contend was a substantive issue. Defendants made pretrial motions concerning the route jurors would take to Cumberland County and requested that jurors not be driven by the scene of the crime. These motions were allowed. Defendants contend any discussion of transportation with the clerk could have generated questions about the route and time required to travel from one county to the other.
Defendants speculate that discussion may have arisen about the bus route to Cumberland County. Regarding the subject of transportation, the record indicates the clerk was to inform the jurors where to park their cars in the morning and where the bus would drop them off in the evening. Defendants can focus only on what jurors
may
have asked the clerk about the transportation route and the time necessary to travel from Johnston County to Cumberland County. Based on defendants’ failure to object and because the record contains nothing to suggest the clerk spoke with jurors about the bus route or any other substantive issue, we assume the clerk limited any conversation to the logistics of jury service and any other administrative matters.
See id.
at 614-15 , 434 S.E.2d at 183. Therefore, we conclude defendants’ assignments of error are without merit and are overruled.
By assignments of error, both defendants contend the trial court erred by excusing for cause prospective jurors Timothy Ray, Sandra Parker, Jarrell Etheridge, Pamela Sessions, Lester Brown, Michael Hood, Richard Coppedge, Brenda Pone, Paquita Raynor, Edward Blackmon, Robert Batts, and Clifton Cooley because they were qualified to serve and could be fair and impartial. In their briefs, however, defendants argue only that the trial court erred in excusing prospective juror Sandra Parker. As to the remaining prospective jurors defendants included in their assignments of error, any claims are deemed abandoned pursuant to N.C. R. App. P. 28(b)(5).
In his brief, Tilmon argues the trial court erred in excusing prospective juror Parker for cause without allowing an opportunity
*420
to ask further questions. Tilmon contends this error stripped him of his constitutional rights by precluding him from making a full and fair inquiry during the jury selection process. Kevin incorporates Tilmon’s argument and contends the trial court erred in excusing Parker for cause in violation of his constitutional rights. Specifically, Kevin argues the trial court’s inquiry into Parker’s state of mind was cursory, overly general, and not adequate to demonstrate Parker lacked the ability to be fair and impartial.
A defendant’s due process rights guarantee the right to a trial by a fair and impartial jury.
See State v. Boykin,
291 N.C. 264, 269 , 229 S.E.2d 914, 917 (1976). Either party may challenge an individual juror for cause if the juror is “unable to render a fair and impartial verdict.” N.C.G.S. § 15A-1212(9) (1999). “It has long been held that the ‘granting of a challenge for cause rests in the sound discretion of the trial court.’ ”
State v. Hartman,
344 N.C. 445, 458 , 476 S.E.2d 328, 335 (1996) (quoting
State v. Cunningham,
333 N.C. 744, 753 , 429 S.E.2d 718, 723 (1993)),
cert. denied,
520 U.S. 1201 , 137 L. Ed. 2d 708 (1997);
see also State v. Burrus,
344 N.C. 79, 88 , 472 S.E.2d 867, 874 (1996);
State
v.
Jaynes,
342 N.C. 249, 270 , 464 S.E.2d 448, 461 (1995),
cert. denied,
518 U.S. 1024 , 135 L. Ed. 2d 1080 (1996). Therefore, absent a showing of abuse of discretion, we will not disturb the trial court’s ruling on a challenge for cause.
See Hartman,
344 N.C. at 458 , 476 S.E.2d at 335 .
To determine whether a prospective juror is able to render a fair and impartial verdict, the trial court must be able to “ ‘reasonably conclude from the
voir dire ...
that a prospective juror can disregard prior knowledge and impressions, follow the trial court’s instructions on the law, and render an impartial, independent decision based on the evidence.’ ”
State v. Sokolowski,
351 N.C. 137, 148 , 522 S.E.2d 65, 72 (1999) (quoting
Jaynes,
342 N.C. at 270 , 464 S.E.2d at 461 ). In the context of excusing jurors for cause because their views on the death penalty would substantially impair the performance of their duties as a juror, this Court has held:
When challenges for cause are supported by prospective jurors’ answers to questions propounded by the prosecutor and by the court, the court does not abuse its discretion, at least in the absence of a showing that further questioning by defendant would likely have produced different answers, by refusing to allow the defendant to question the juror challenged.
State v. Oliver,
302 N.C. 28, 40 , 274 S.E.2d 183, 191 (1981).
*421
In the instant case, Parker indicated to the prosecutor she could find defendants guilty, the relatively young ages of defendants would not cause her any problem, she could fairly evaluate the evidence despite having family members in law enforcement, she could consider both possible punishments, she could impose a sentence of life imprisonment without the possibility of parole for someone convicted of first-degree murder, she could recommend the death penalty if she felt it was the appropriate punishment, and she could be fair. The prosecutor accepted Parker.
Tilmon’s counsel then questioned Parker. Parker indicated she could render a fair judgment from the facts presented; she could maintain impartiality despite seeing the photographs and other evidence; she could maintain impartiality regardless of defendants’ or the victims’ race or defendants’ religion; and she could weigh the aggravating and mitigating circumstances, follow the trial court’s instructions, and fairly consider both life imprisonment without parole and the death penalty. Tilmon’s counsel accepted Parker.
When Kevin’s counsel questioned Parker, however, she became emotional and began to doubt her impartiality.
[Counsel For Kevin]: ... Do you think your — let’s go to that, do you think your nerves might cause you some problems in this trial? Do you think — I mean do you think there might be something about this trial that will cause you to be so emotional or so distraught that you just won’t be able to give it your full attention and be a fair and impartial juror?
[Prospective Juror Parker]: At the beginning of the week, I probably would have said no, but it seems like the closer it gets, the longer it goes, the more it weighs on my mind, what is actually happening here.
[Counsel For Kevin]: You understand this is a serious charge obviously and this is serious business that we’re here about. Do you mind expanding on that a little? I mean do you think there is something about the trial that may be so emotionally trying for you or so devastating that you wouldn’t be able to give it your full attention or that you wouldn’t be able to render a fair and impartial verdict or consider the evidence fairly and consider the defendants guilty — innocent until proven guilty, weigh the death penalty and life imprisonment without parole? Do you think some
*422
of that might be a problem because of emotions? Tell us now. Now is the time.
[Prospective Juror Parker]: Like I said, I have a daughter. She’s eight years old. And it weighs on my mind that one day she’s going to be a teenager and that she may — something may happen where she gets in trouble and I may be sitting behind her in the courtroom and I don’t think I can pass a judgment on another person’s child. I can’t do that. (Juror crying.)
The trial court then intervened and asked questions of Parker.
The Court: Ma’am, let me ask you this. Do you feel that the concern that you just raised would interfere substantially with your ability to be fair and impartial to all the parties in this case?
[Prospective Juror Parker]: (Nodding head.)
The Court: Now, let me ask you this. Understanding that it would be hard for you, understanding that you would give it your best efforts, right now, those are not really the questions, whether it would be hard because it may very well be hard to do, you know. And I recognize that you would absolutely give it your best effort. Given that, do you have a question about your ability to be fair to everyone involved in this case?
[Prospective Juror Parker]: I have doubts.
The Court: Well, there’s a way that I have asked this to some other jurors that have gone on, so I’m going to ask you, are you confident — are you confident of your ability to be fair and impartial to everyone involved in this case or do you have a serious doubt, a substantial doubt concerning your ability to be fair and impartial?
[Prospective Juror Parker]: I have a substantial doubt.
The trial court then excused Parker to return to the jury deliberation room. Parker left the courtroom, and the attorneys for all parties discussed her responses.
The Court: Anybody got anything?
[Counsel For Kevin]: Nothing from us.
[Prosecutor]: Yes, sir, Judge. The state would challenge her for cause based on her remarks, if I understand her correctly—
*423
The Court: Okay.
[Prosecutor]: —as to what she said.
The Court: I will hear from the defendant Kevin Golphin.
[Counsel For Kevin]: Well, Your Honor, I guess I would like to ask her a few more questions if I could. I’m not sure she has exactly said she couldn’t render a fair and impartial verdict in weighing the evidence and after hearing the evidence.
The Court: Mr. Parish?
[Counsel For Tilmon]: I have nothing to add.
The trial court then issued its ruling on the State’s motion to excuse Parker for cause and Kevin’s request to ask additional questions, saying:
The question of the ability to be fair and having substantial doubt, concerning the ability to be fair has sort of been my litany in this case throughout and it has been my inclination to allow that to be the standard, and it would be my intent when we come down with the question of any juror to keep that as the standard. Therefore, in the Court’s discretion, I’m going to decline the permitting of additional questions and excuse the juror for cause.
Based 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
*424
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, Tllmon’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
*425
years .... Persons not qualified under this section are subject to challenge for cause.
N.C.G.S. § 9-3 (1999) (emphasis added). Additionally, “[t]he clerk
shall, at the beginning of court,
swear all jurors who have not been selected as grand jurors.” N.C.G.S. § 9-14 (1999) (emphasis added). In the context of swearing in prospective jurors, we have previously defined the phrase “at the beginning of court” as “the beginning of the [session] of court.”
State v. McNeill,
349 N.C. 634, 643 , 509 S.E.2d 415, 420 (1998),
cert.
denied, - U.S. -, 145 L. Ed. 2d 87 (1999).
In the instant case, Tilmon argues the trial court should have moved Smith to a later panel and then sworn her in at the time she was called, which would have been two years after her prior jury service. However, N.C.G.S. § 9-14 mandates that prospective jurors be sworn in at the beginning of court, which we have held refers to the beginning of the session of court.
See
N.C.G.S. § 9-14;
McNeill,
349 N.C. at 643 , 509 S.E.2d at 420 . Therefore, the trial court did not have the authority to swear Smith in at a later time. Because Smith could not be sworn in at the beginning of the session of court as the statute requires, the trial court did not err in excusing her for cause. Tilmon’s assignment of error is overruled.
By assignments of error, both Kevin and Tilmon argue the trial court erred by allowing the State to exercise peremptory challenges in a racially discriminatory manner in violation of their state and federal constitutional rights. Specifically, defendants contend the State’s reasons for excusing prospective jurors Deadra Holder and John Murray were pretextual, and the trial court did not conduct an adequate inquiry. We disagree.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the Constitution of North Carolina forbid the use of peremptory challenges for a racially discriminatory purpose.
See Batson v. Kentucky,
476 U.S. 79, 86 , 90 L. Ed. 2d 69, 80 (1986);
State v. White,
349 N.C. 535, 547 , 508 S.E.2d 253, 262 (1998),
cert. denied,
527 U.S. 1026 , 144 L. Ed. 2d 779 (1999). “In
Batson
the United States Supreme Court set out a three-pronged test to determine whether a prosecutor impermissibly excluded prospective jurors on the basis of their race.”
State v. Bonnett,
348 N.C. 417, 433 , 502 S.E.2d 563, 574 (1998) (citing
Hernandez v. New York,
500 U.S. 352, 358-59 , 114 L. Ed. 2d 395, 405 (1991)),
cert. denied,
525 U.S. 1124 , 142 L. Ed. 2d 907 (1999).
*426
In the first prong of the
Batson
test, a criminal defendant must establish a
prima facie
case that a peremptory challenge was exercised on the basis of race.
Hernandez,
500 U.S. at 358 , 114 L. Ed. 2d at 405 . All relevant circumstances are considered, including the “defendant’s race, the victim’s race, the race of key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, a pattern of strikes against minorities, or the State’s acceptance rate of prospective minority jurors.”
White,
349 N.C. at 548 , 508 S.E.2d at 262 ;
see also State v. Hoffman,
348 N.C. 548, 550 , 500 S.E.2d 718, 720 (1998).
In the second prong, the burden shifts to the State to articulate a race-neutral reason for striking the particular juror.
Hernandez,
500 U.S. at 358-59 , 114 L. Ed. 2d at 405 ;
Bonnett,
348 N.C. at 433 , 502 S.E.2d at 574 . The State’s explanation must be clear and reasonably specific, but does not have to rise to the level of justifying a challenge for cause.
See Bonnett,
348 N.C. at 433 , 502 S.E.2d at 574 ;
State v. Porter,
326 N.C. 489, 498 , 391 S.E.2d 144, 151 (1990). Moreover, “ ‘[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ ”
Bonnett,
348 N.C. at 433 , 502 S.E.2d at 574 -75 (quoting
Hernandez,
500 U.S. at 360 , 114 L. Ed. 2d at 406 );
see also Purkett v. Elem,
514 U.S. 765, 768-69 , 131 L. Ed. 2d 834, 839-40 (1995);
State v. Barnes,
345 N.C. 184, 209-10 , 481 S.E.2d 44, 57 ,
cert. denied,
522 U.S. 876 , 139 L. Ed. 2d 134 (1997),
and cert. denied,
523 U.S. 1024 , 140 L. Ed. 2d 473 (1998). In addition, the second prong provides the defendant an opportunity for surrebuttal to show the State’s explanations for the challenge are merely pretextual.
See State v. Gaines,
345 N.C. 647, 668 , 483 S.E.2d 396, 408 ,
cert. denied,
522 U.S. 900 , 139 L. Ed. 2d 177 (1997);
State v. Robinson,
330 N.C. 1, 16 , 409 S.E.2d 288, 296 (1991).
When the trial court explicitly rules that a defendant failed to make out a
prima facie
case, review by this Court is limited to whether the trial court’s finding was error.
See State v. Fletcher,
348 N.C. 292, 320 , 500 S.E.2d 668, 684-85 (1998),
cert. denied,
525 U.S. 1180 , 143 L. Ed. 2d 113 (1999). However, when the trial court does not explicitly rule on whether the defendant made a
prima facie
case, and where the State proceeds to the second prong of
Batson
by articulating its explanation for the challenge, the question of whether the defendant established
aprima facie
case becomes moot.
See State v. Williams,
343 N.C. 345, 359 , 471 S.E.2d 379, 386 (1996),
cert. denied,
519 U.S. 1061 , 136 L. Ed. 2d 618 (1997);
State v. Lyons,
343 N.C. 1 ,
*427
11-12, 468 S.E.2d 204, 208 ,
cert. denied,
519 U.S. 894 , 136 L. Ed. 2d 167 (1996).
In the third prong of
Batson ,
“the trial court must determine whether the defendant has satisfied his burden of proving purposeful discrimination.”
Bonnett,
348 N.C. at 433 , 502 S.E.2d at 575 (citing
Hernandez, 500
U.S. at 359, 114 L. Ed. 2d at 405 ). In determining the presence or absence of intentional discrimination, this Court will consider various factors including the “susceptibility of the particular case to racial discrimination, whether the State used all of its peremptory challenges, the race of witnesses in the case, questions and statements by the prosecutor during jury selection which tend to support or refute an inference of discrimination, and whether the State has accepted any African-American jurors.”
White,
349 N.C. at 548-49 , 508 S.E.2d at 262 . A trial court’s rulings regarding race neutrality and purposeful discrimination are largely based on evaluations of credibility and. should be given great deference.
See Batson,
476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21;
Bonnett,
348 N.C. at 433 , 502 S.E.2d at 575 . We will uphold the trial court’s determination unless we are convinced it is clearly erroneous.
See State v. Kandies,
342 N.C. 419, 434-35 , 467 S.E.2d 67, 75 ,
cert. denied,
519 U.S. 894 , 136 L. Ed. 2d 167 (1996).
In the instant case, the State peremptorily challenged Holder. Tilmon’s counsel contended the challenge was not race-neutral, stating it was impermissible pursuant to
Batson
because Holder appeared to be African-American, she gave no inappropriate responses, she had no prior criminal record, she was gainfully employed, and there were no criminals in her family. Kevin’s counsel also noted that Holder appeared to be African-American and that
Batson
was controlling unless the State could provide race-neutral reasons for the challenge.
Without ruling, the trial court stated it would hear from the State. The following dialogue took place:
[Prosecutor]: Judge, our first contention would be that that doesn’t rise to the level of prima facie showing. However, if the state — if the Court would allow me to and thinks it’s appropriate at this time, I would be glad if the Court sees fit to state my reasons for excusing that juror.
The Court: If you will proceed.
*428
[Prosecutor]: Yes, sir. One — I have several reasons for that excuse, Your Honor, and one of [] them is that as I talked to Ms. Holder, I attempted to draw her out and to engage her in more than one-word answers or simply short-phrased answers in a number of ways, not only with the questions that were in the pool of questions I was asking, but also questions that related to her and her family relationship and so on.
She — she did not respond to that. I frankly don’t know if that’s because she’s shy or because she didn’t want to tell us or perceived it as her personal business or whatever. But I never was able to draw her out in that manner.
. . . And so that was one of the reasons that the state considered excusing Ms. Holder. Another is the age of Ms. Holder. She indicated that she is 22 and that she has a sister who is 18. The relative ages of those individuals and the fact that they still live together in view in particular, Your Honor, of what the state perceives the defendants] to be questioning jurors about and the state’s perception of what the defendants] [are] likely to assert as a defense or as an argument in this case, the defendants] [have] consistently asked jurors about their brothers and their sisters and the age differences between them and the relationships, how close they were, how close they were growing up, those sorts of things.
The Court: You — you’re contending here that this individual has a brother the approximate age range of these defendants?
[Prosecutor]: She said she has a sister who is 18 and she is 22. They both still live at home with their parents. They both work in the same place.
The Court: That she has a sibling in the age range of the defendants?
[Prosecutor]: Yes, sir. And in view of what the state perceives and has gathered from the line of questioning — consistent line of questioning of the defense attorneys of the prospective jurors to this point, the state felt that this juror was one that we wanted to consider and think about in terms of what we perceive the defendants’] defense to be.
*429
Also I noted in my notes and I remember at the time when I asked her about the death penalty, she paused and she said, well, I guess if someone found — and then she said reasonable doubt, the death penalty might be — is appropriate. Then I see nothing wrong with it. She had a pause there that also we had some concern about. And the — but mainly the concerns that we had regarding what the state perceives the defense to be proceeding on is our concern.
The trial court then gave Tilmon’s counsel an opportunity to respond. Tilmon’s counsel stated that the State had not asked other prospective jurors whether they had siblings in this age group; that Holder answered the closed-ended questions posed to her with “yes, ma’am,” and “no, ma’am,” answers; and that Holder did not hesitate when answering the State’s questions regarding the death penalty, to which she indicated she could vote for the death penalty if someone was proven guilty beyond a reasonable doubt. Kevin’s counsel reiterated Tilmon’s counsel’s comments and noted that he had not heard the State ask other prospective jurors about their siblings, the State asked nothing but yes or no questions, and Holder answered the death penalty questions appropriately.
The trial court then ruled:
It is the Court’s belief that the articulated reason that the juror was relatively young and close to the age range of the defendants and that the juror had a sibling at approximately the age range of the defendants constitutes an articulable race neutral reason for exercising a peremptory challenge, and so the motion is, therefore, denied.
The following day, the State peremptorily challenged Murray Kevin’s counsel challenged the State’s peremptory challenge of Murray based on
Batson .
Kevin’s counsel indicated there was no articulable basis for the challenge; both Murray and Kevin were black males; and over one-quarter, and almost one-third, of the State’s peremptory challenges were against African-Americans. Tilmon’s counsel joined the motion and stated the State had passed only one minority juror at that point. The trial court then indicated that because it had required an articulable reason for the previous
Batson
challenge, it was going to require an articulable reason for each
Batson
challenge thereafter.
The State then provided the following reasons for its peremptory challenge:
*430
[Prosecutor]: . . . Your Honor, we would challenge Mr. Murray on the cumulative effect of three things. One, he has a prior conviction himself for driving while impaired. Two, his father has a prior conviction for robbery for which he served, if I remember correctly, six years in the Department of Corrections. And three, Mr. Murray’s statement that he attributed to a male and a female white juror in the courtroom with respect to what he viewed as a challenge to the due process rights of the defendants. The cumulative effect of that we contend makes him challengeable by the state from our point of view peremptorily.
I would also note that during the course of his answers at no time other than answering the questions and facing the person that was asking him the questions, while I certainly don’t expect to be afforded any courtesy or recognition of authority because I don’t have any authority, so to speak, but I noticed that when he spoke, he did not refer to the Court with any deferential statement other than saying “yes” or “no” in answering your questions when you asked them.
In addition, in my view with respect to his demeanor, I noted that he had a gold earring in his left ear. I also noted and perceived from my point of view a rather militant animus with respect to some of his answers. He elaborated on some things. Other things, he gave very short, what I viewed as sharp answers and also noted that when he spoke to the Court, that he did not defer, at least in his language, to the Court’s authority, did not refer to the Court in answering yes, sir or no, sir. Did not address the Court as Your Honor. He just simply gave rather short, cryptic answers.
The trial court then allowed defendants an opportunity to respond. Kevin’s counsel stated: the State’s argument relying on comments of others was unfair in our system of justice; a prospective juror who was Caucasian had convictions for breaking and entering and trespassing but had not been challenged by the State; Murray stated the situation with his father would not affect him as a juror; and because there were fewer than ten percent minority members of prospective jurors to be chosen in this case, with this challenge, the State had challenged one-third of the prospective minority jurors. Tilmon’s counsel noted: the State accepted another prospective Caucasian juror with a driving while impaired conviction; Murray indicated to the State and to the trial court that the conversation he
*431
overheard would not impact his ability to be fair; and the State did not ask questions which would show the impact of Murray’s father’s conviction, such as whether his father was treated fairly and whether the conviction affected Murray.
The trial court then held: “The Court determines that the state has established a non-racial basis for the peremptory challenge and the objection to that peremptory challenge based on
Batson
is overruled and denied.” Following defendants’ objections, the trial court stated:
I would just note for the record that I did not perceive — since this has been raised, I did not perceive any conduct of the juror to be less than deferential to the Court. I think that the juror did demonstrate a consistent reticence to elaborate on questions, but all of his responses were appropriate to the specific questions asked. And probably that — there was a substantial degree of clarity and thoughtfulness in the juror’s responses.
And the Court will note for the record that it is primarily relying upon the defendant’s prior record, specifically which it involved an interaction with a traffic law enforcement officer, and the potential empathy that might be engendered from a father who was a criminal defendant as the basis for the exercise of the peremptory challenge.
I would note further I am not relying upon the impact of the incident in the courtroom as providing a basis for this and frankly is not — I do not consider it to be appropriate for even the exercise for a peremptory challenge.
The State in the instant case gave reasons for peremptorily challenging both Holder and Murray. Therefore, “ ‘we need not address the question of whether defendants] met [their] initial burden of showing discrimination],] and [they] may proceed as if a
prima facie
case had been established.’ ”
Bonnett,
348 N.C. at 434 , 502 S.E.2d at 575 (quoting
State v. Harden,
344 N.C. 542, 557 , 476 S.E.2d 658, 665 (1996),
cert. denied,
520 U.S. 1147 , 137 L. Ed. 2d 483 (1997)).
As to the second prong of
Batson ,
the State provided race-neutral reasons for the peremptory challenges of both Holder and Murray. With regard to Holder, we perceive no inherent discriminatory intent in the State’s explanation that Holder was young, within the age range of defendants, and had a sister who was also within the age range of defendants.
See Bonnett,
348 N.C. at 433 , 502 S.E.2d at 574-75 .
*432
Defendants have failed to show the State’s reasoning was pretextual.
See Gaines,
345 N.C. at 668 , 483 S.E.2d at 408 . The State relied on previous questions by defense counsel to formulate what it believed to be the defense theory in this case and then proceeded to ask questions similar to those asked by defense counsel. There was no evidence of pretext, as the State sought to exclude Holder because she might be able to empathize with defendants because she and her sister were within the same age range as defendants. Therefore, the trial court did not err in concluding that the State’s reasoning was race-neutral.
With regard to Murray, we perceive no inherent discriminatory intent in the State’s explanation that Murray had been convicted of driving while impaired and that his father had a prior conviction for robbery for which he had served six years in the Department of Correction.
See Bonnett,
348 N.C. at 433 , 502 S.E.2d at 574-75 . Defendants did not show the State’s explanation to be pretextual.
See Gaines,
345 N.C. at 668 , 483 S.E.2d at 408 . While defendants pointed to two other Caucasian prospective jurors who had criminal convictions and were accepted by the State, those other prospective jurors did not also have a parent who was convicted of robbery for which he or she was incarcerated. There is no evidence of pretext, as the State sought to exclude Murray because he might empathize with defendants because of his own experience with traffic law enforcement and his father’s incarceration in the Department of Correction. Therefore, the trial court did not err in finding the State’s reasoning to be race-neutral.
As the State provided race-neutral reasons for its peremptory challenges of Holder and Murray, we move to the third prong of
Batson .
In light of the factors we consider in evaluating whether there is purposeful discrimination, we note that this case may be one susceptible to racial discrimination because defendants are African-Americans and the victims were Caucasian.
See White,
349 N.C. at 548-49 , 508 S.E.2d at 262 . However, the State did not exhaust the statutory number of peremptory challenges allowed for the first twelve jurors, nor did it exhaust its challenges in selecting the four alternate jurors.
See
N.C.G.S. § 15A-1217;
White,
349 N.C. at 548-49 , 508 S.E.2d at 262 . In addition, based on the discussion which occurred at the time the State challenged Holder, the State had exercised nine peremptory challenges, only three of which were against African-Americans; the next day, when Murray was challenged, the State had exercised eleven peremptory challenges, only four of which
*433
were against African-Americans, one being Holder. The State had accepted six prospective jurors, one of whom was African-American. This constituted a higher percentage of African-Americans accepted by the State than were in the jury pool. In selecting the twelve jurors and four alternates, the State exercised twenty-seven peremptory challenges, only four of which were against African-Americans. This ratio represents a percentage of African-Americans equivalent to the percentage of African-Americans in the jury pool. Moreover, during jury selection, the State made no comments which would support an inference of discrimination in the instant case.
From our review of the transcript in the instant case, it is apparent the trial court gave great consideration to the arguments by all parties with regard to these two
Batson
challenges before concluding the State did not purposefully discriminate against Holder or Murray. We give great deference to the trial court’s rulings.
See Bonnett,
348 N.C. at 433 , 502 S.E.2d at 575 . Given the foregoing, we are convinced the State did not discriminate on the basis of race in exercising its peremptory challenges against Holder and Murray.
See Kandies,
342 N.C. at 434-35 , 467 S.E.2d at 75 . Defendants’ assignments of error are overruled.
GUILT-INNOCENCE PHASE
By assignment of error, Kevin argues the trial court erred in allowing the State, during its presentation of rebuttal evidence, to demonstrate the effects of pepper spray in an experiment under circumstances dissimilar to those that actually occurred and with the use of law enforcement officers trained in the use of pepper spray. Kevin contends the experiment prejudiced his defense. We disagree.
This Court has recognized a distinction between demonstrations and experiments. An experiment is “ ‘a test made to demonstrate a known truth, to examine the validity of a hypothesis, or to determine the efficacy of something previously untried.’ ”
State v. Allen,
323 N.C. 208, 225 , 372 S.E.2d 855, 865 (1988) (quoting
State v. Hunt,
80 N.C. App. 190, 193 , 341 S.E.2d 350, 353 (1986)),
sentence vacated on other grounds,
494 U.S. 1021 , 108 L. Ed. 2d 601 (1990). “Experimental evidence is competent and admissible if the experiment is carried out under substantially similar circumstances to those which surrounded the original occurrence.”
State v. Locklear,
349 N.C. 118, 147 , 505 S.E.2d 277, 294 (1998),
cert. denied,
526 U.S. 1075 , 143 L. Ed. 2d 559 (1999); see
also State v. Jones,
287 N.C. 84, 97 , 214 S.E.2d 24 , 33
*434
(1975);
State v. Carter,
282 N.C. 297, 300 , 192 S.E.2d 279, 281 (1972). However, exclusion is not required when the conditions are not exactly similar; rather, it goes to the weight of the evidence with the jury.
See Locklear,
349 N.C. at 147 , 505 S.E.2d at 294 . Generally, the trial court is given broad discretion to determine if the conditions are sufficiently similar.
See id.; State v. Bondurant,
309 N.C. 674, 686 , 309 S.E.2d 170, 178 (1983).
A demonstration on the other hand is “ ‘an illustration or explanation, as of a theory or product, by exemplification or practical application.’ ”
Allen,
323 N.C. at 225 , 372 S.E.2d at 865 (quoting
Hunt,
80 N.C. App. at 193 , 341 S.E.2d at 353 ). The test for admissibility of evidence regarding a demonstration is whether, if relevant, the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.”
Id.; see also
N.C.G.S. § 8C-1, Rules 401, 403 (1999). In general, we note that all evidence offered by the State will have a prejudicial effect on a defendant; however, the prejudicial effect will vary in degree.
See State v. Hedgepeth,
350 N.C. 776, 785 , 517 S.E.2d 605, 611 (1999),
cert.
denied, - U.S. -, 146 L. Ed. 2d 223 , (2000);
State v. Wilson,
345 N.C. 119, 127 , 478 S.E.2d 507, 512-13 (1996);
State v. Weathers,
339 N.C. 441, 449 , 451 S.E.2d 266, 270 (1994). The determination of whether relevant evidence should be excluded pursuant to Rule 403 “is a matter left to the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion.”
Wallace,
351 N.C. at 523 , 528 S.E.2d at 352-53 ;
see also State v. Pierce,
346 N.C. 471, 490 , 488 S.E.2d 576, 587 (1997).
This issue originated when the prosecutor asked First Sergeant George Williamson, a training officer with the North Carolina State Highway Patrol, to spray the prosecutor’s arms with pepper spray. Kevin objected to the prosecutor being the subject of the demonstration because he would become a witness. Thereafter, during a lengthy discussion on the issue and after the trial court had indicated a willingness to allow the pepper spray demonstration with witnesses other than the prosecutor, Kevin again voiced an objection based on the use of law enforcement officers who have experience being sprayed with pepper spray because “[t]hat would skew the results, unless the demonstration — or the sample is sufficiently large that you would find some of these variable reactions in there.” The trial court overruled that objection. Kevin modified his objection and moved “that whoever the state uses to spray be a person who does not have
*435
prior experience with being sprayed.” The trial court overruled the objection and stated it would not limit either side as to who is sprayed because the opposing side could point out the prior experience to the jury during cross-examination. The trial court further limited the testimony to the subject’s reaction to being sprayed.
When the State presented six possible witnesses to be sprayed, Kevin objected to all six as they were all trained law enforcement officers and objected to the “demonstration in total as being inappropriate, improper and not a valid sampling of the general population as to the effects of pepper spray.” The trial court sustained the objection as to two Cumberland County sheriff’s deputies who had provided security to the jury, but overruled the objection as to four members of the State Highway Patrol.
Thereafter, Sgt. Williamson sprayed Troopers Raymond Battle and Curtis Toler with foam pepper spray. The State asked Sgt. Williamson to spray Trooper Battle in a manner so that some of the spray got on his face and in his ear but not in his eye. The State then asked Sgt. Williamson to spray Trooper Toler in a manner so that some spray got on his face, in his ear, and in his eye. Trooper Battle then testified that he felt no burning sensation on his face or in his ear. He further testified that in 1993, he was sprayed with stream pepper spray, rather than foam pepper spray, directly in his eyes. Trooper Battle indicated the prior spraying had been incapacitating and that it had taken approximately twenty-five minutes before he could see well enough to function.
Trooper Toler then testified to his reaction. He indicated that he felt an intense burning sensation when the spray hit his left eye, and he closed his eye. He stated he could still use his right eye and felt no burning sensation in the right eye. In 1993, Trooper Toler was sprayed in both eyes, and it had taken approximately twenty to twenty-five minutes for him to recover. Trooper Toler then stated that if he had been sprayed in both eyes, as he was in 1993, he would not have been able to walk to his chair unassisted as he was able to do following the instant demonstration. Trooper Toler also indicated that in 1993, a lot of pepper spray had gotten into his nose causing “material” to come out of his nose; however, during the instant demonstration, only a little spray got into his nose which caused him to have only a minor “sniffle.” Following the State’s demonstration, both defendants were given an opportunity to present additional witnesses to be sprayed with pepper spray and then to testify about their reaction. Neither
*436
defendant chose to present evidence in response to the State’s demonstration.
We hold the evidence at issue here was a demonstration. In arguing for the pepper spray demonstration, the State contended that “at this point all we’re trying to do is, first of all, explain to this jury what this stuff is. It’s not some fancy compound. It’s just, uh, cayenne peppers,” and that the jury “needs to have some reality to this issue.” The presentation by the State was to illustrate or explain to the jury the effects of pepper spray by practical application.
See Allen,
323 N.C. at 225 , 372 S.E.2d at 865 .
The evidence of the pepper spray demonstration was relevant as Kevin had made the effects of pepper spray an issue in the instant case.
See
N.C.G.S. § 8C-1, Rule 401. During the State’s presentation of evidence, Kevin repeatedly asked witnesses on cross-examination questions pertaining to pepper spray. On cross-examination of Sergeant Jimmie Turbeville of the State Highway Patrol, Kevin asked what the effects of being sprayed in the face with pepper spray would be, and Sgt. Turbeville responded that it was very painful and irritating to the eyes. On cross-examination of Sergeant Danny Williams of the Harnett County Sheriff’s Department, Kevin asked about the use of pepper spray and the varying reactions people with different sensitivities can have to being sprayed. Sgt. Williams also indicated that if someone was not sprayed in the eyes, the person might experience mild burning depending on the sensitivity of the individual’s skin. On cross-examination of Trooper Vincent Terry of the State Highway Patrol, Kevin asked whether Trooper Terry himself had been sprayed and whether he had ever used pepper spray on anyone else. Trooper Terry stated that when he was sprayed, he experienced a burning sensation in his eyes; and when he sprayed someone during a traffic stop, the person began crying and screaming, and he assumed she was feeling pain from being sprayed.
In addition, Kevin’s entire presentation of evidence related to the use of pepper spray. The sole focus of Kevin’s opening statement was pepper spray. Kevin’s counsel read the warning label from the container of pepper spray as well as instructions for use of the product. Thereafter, Kevin offered a pepper spray demonstration by a private investigator and then called Sergeant William Ellis of the Cumberland County Sheriff’s Department to testify about pepper spray. Kevin asked Sgt. Ellis several questions about the proper use of pepper spray and then asked him to read portions of the instructions for the use of pepper spray, which included: “Number six, extreme cau
*437
tion should be exercised when using an aerosol irritant projector against persons who have reduced sensitivity to pain. If such persons are not disabled with an aerosol irritant projector, they may react with violence.”
As Kevin continually asked questions on cross-examination of State witnesses about the effects of pepper spray, and on direct examination offered only evidence concerning the use of pepper spray, the effects of pepper spray, and the warnings for pepper spray, the State’s rebuttal demonstration showing the effects of pepper spray was relevant pursuant to N.C.G.S. § 8C-1, Rule 401.
Having determined the evidence of the demonstration was relevant, we must now determine whether the evidence should have been excluded because the probative value was substantially outweighed by the danger of unfair prejudice.
See
N.C.G.S. § 8C-I, Rule 403. Although Kevin argues the circumstances surrounding the demonstration were dissimilar to those surrounding the incident, that is not the focus of our review in the instant case. Kevin has not shown that the prejudicial effect of the demonstration substantially outweighed its probative value. Based on our review of the transcript, we cannot conclude the trial court abused its discretion in allowing the demonstration of the effects of pepper spray. Therefore, the trial court did not err in allowing the demonstration.
With regard to Kevin’s argument about the use of law enforcement officers for the demonstration, he cannot show prejudice. When the trial court decided to allow the State to present the demonstration, it informed Kevin he would also be given an opportunity to present witnesses to be sprayed and then to testify. Kevin even indicated to the court that he would call his own witnesses to be sprayed and to testify. However, at the conclusion of the State’s presentation, Kevin decided not to introduce alternative participants. In addition, the trial court stated, “Both sides may cross [-] examine each person as to their bias, and that they are, therefore, uh, not completely credible as to their description of their subjective experience.” With Kevin’s opportunity to offer alternative people to participate in the demonstration and his ability to cross-examine the law enforcement officers regarding their potential bias, he cannot show he was prejudiced by the use of law enforcement officers during this demonstration. This assignment of error is overruled.
By assignments of error, Kevin argues the trial court erred by admitting evidence offered, first, by the State and, second, by Tilmon
*438
regarding seizure of his luggage by the Fayetteville police a week prior to the murders. Kevin contends the evidence offered by the State concerning the alleged misconduct was hearsay, did not corroborate the witness’ testimony, was irrelevant as it showed only bad character, and violated his Confrontation Clause rights. He further contends the evidence offered by Tilmon concerning the alleged misconduct was irrelevant as it had no bearing on Tilmon’s guilt. Both Tilmon and the State relied on this evidence to show Kevin’s motive for stealing the Toyota Camry and to show why the brothers were unable to take the bus back to Richmond. We disagree with Kevin’s contentions.
In a pretrial motion
in limine,
Kevin requested a hearing on the admissibility of any information regarding seizure of drugs from Kevin on 17 September 1997. In the motion, Kevin indicated that on 17 September 1997, the Fayetteville Police Department stopped him at the Fayetteville Greyhound bus station and requested to search his luggage. Kevin refused. The Fayetteville police retained Kevin’s luggage, and Kevin proceeded to South Carolina without being arrested or charged. Thereafter, the police obtained a search warrant and searched Kevin’s luggage. The police allegedly discovered eighty grams of marijuana in Kevin’s bag. In the motion, Kevin asked the trial court to prevent the State from mentioning the seizure of marijuana because there never was a conviction, the seizure was not connected to the instant case, and the introduction of the evidence would be unfairly prejudicial. The trial court deferred ruling on the motion until it became an issue in the case.
We begin our discussion with Kevin’s argument that the trial court erred by allowing the State to introduce evidence concerning the seizure of Kevin’s luggage. When the State was questioning Lt. Kirby about the investigation of the 23 September 1997 armed robbery in Kingstree, South Carolina, the prosecutor sought to introduce the armed robbery report. Kevin asked to view the report and stated that if it referenced only the armed robbery, then he had no objection. After viewing the exhibit, Kevin objected to it “in part.” The trial court overruled the objection and received the report into evidence.
Generally, the report includes information similar to Lt. Kirby’s testimony. In his testimony, Lt. Kirby stated that he investigated the armed robbery by canvassing the businesses near Financial Lenders, including the bus station. In the bus station, an employee gave him
*439
information on the robbery suspects. Based on this information, Lt. Kirby drove to Greeleyville, South Carolina, to the home of Kevin and Tilmon’s grandparents.
The robbery report, however, further provides what people told Lt. Kirby, which Kevin argues to this Court is inadmissible hearsay and violates the Rules of Evidence, as well as his rights under the Confrontation Clause. The report indicates, in pertinent part:
During the course of investigating the above case number, this r/o went to Marcus Department Store, after hearing that Mr. Marcus did talk with the two b/m’s before the robbery took place. While in the store Mr. Marcus was not there, so this r/o asked Mr. Jimmy if he knew anything about the two b/m’s. Mr. Jimmy stated that the suspects came up to file a report that their luggage got lost on the Bus. Mr. Jimmy stated that he asked the two b/m’s what happened to their luggage. Mr. Jimmy stated that the two males stated that the police in Fayetteville, N.C. took their luggage. Mr. Jimmy stated that he asked them did they have any drugs in their luggage. Mr. Jimmy stated they said nothing. Mr. Jimmy stated he told them if they had drugs in the bags that they would not get their luggage back. Mr. Jimmy gave me a copy of a paper with a name of a Thomas Jr. and an address of Rte. 2 Box 66-B Greeleyville, S.C. 29056.
Regarding the alleged violation of Kevin’s Confrontation Clause rights, we initially note that in the motion
in limine
requesting a hearing on the admissibility of evidence, Kevin did not raise any constitutional issues. In addition, the objection Kevin made to the introduction of the police report was a general objection — he did not raise any constitutional issues and did not provide the trial court with an opportunity to rule on any constitutional issues. As “ ‘[t]his Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court,’ ”
Nobles,
350 N.C. at 495 , 515 S.E.2d at 893 (quoting
Creason,
313 N.C. at 127 , 326 S.E.2d at 27 ), we need not address Kevin’s argument that admission of the robbery report violated his Confrontation Clause rights.
Next, we turn to whether admission of the robbery report violated the Rules of Evidence. Kevin objected to the introduction of the robbery report without specifying the grounds for the objection; therefore, we rely on the rules governing general objections. We have previously stated that a general objection is “ineffective unless there
*440
is no proper purpose for which the evidence is admissible. The burden is on the defendant to show that there was no proper purpose for which the evidence could be admitted.”
State v. Young,
317 N.C. 396, 412 , 346 S.E.2d 626, 635 (1986) (citation omitted);
see also State v. Moseley,
338 N.C. 1, 32 , 449 S.E.2d 412, 431 (1994),
cert. denied,
514 U.S. 1091 , 131 L. Ed. 2d 738 (1995).
“Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401;
see also State v. Perry,
298 N.C. 502, 510 , 259 S.E.2d 496, 501 (1979) (holding, “[generally, evidence is relevant if it has
any
logical tendency, however slight, to prove a fact in issue in the case”). Evidence which has no tendency to prove a fact in issue is, however, inadmissible.
See
N.C.G.S. § 8C-1, Rule 402 (1999);
Perry,
298 N.C. at 510 , 259 S.E.2d at 501 . Pursuant to Rule 403, “the determination of whether relevant evidence should be excluded is a matter left to the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion.”
Wallace,
351 N.C. at 523 , 528 S.E.2d at 352-53 ;
see also Pierce,
346 N.C. at 490 , 488 S.E.2d at 587 .
Furthermore, evidentiary rules define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.G.S. § 8C-1, Rule 801(c) (1999). Out-of-court statements offered for purposes other than to prove the truth of the matter asserted are not considered hearsay.
State v. Thomas,
350 N.C. 315, 339 , 514 S.E.2d 486, 501 ,
cert.
denied, - U.S. -, 145 L. Ed. 2d 388 (1999). We have held “statements of one person to another to explain subsequent actions taken by the person to whom the statement was made are admissible as nonhearsay evidence.”
Id.; see also State v. Morston,
336 N.C. 381, 399 , 445 S.E.2d 1, 11 (1994);
State v. Coffey,
326 N.C. 268, 282 , 389 S.E.2d 48, 56 (1990).
The robbery report in the instant case is relevant evidence. The statements made to Lt. Kirby were vital to the identification of Kevin and Tilmon as the suspects in the armed robbery. The declarant provided the background information in order to show his knowledge of the suspects. Moreover, the report does not indicate the Fayetteville police actually discovered drags in Kevin’s luggage. The declarant merely informed Kevin and Tilmon that if the police discovered drags in the luggage, then the luggage would not be returned to them. In
*441
addition, the report was admissible for nonhearsay purposes. The report was not offered to prove the truth of the statements made by the declarant to police, but to help explain the subsequent actions taken by Lt. Kirby in traveling to the home of Kevin and Tilmon’s grandparents, which in turn furthered the investigation of this case. As we have found that the robbery report was admissible, Kevin has not met his burden of showing “there was no proper purpose for which the evidence could be admitted.”
Young,
317 N.C. at 412 , 346 S.E.2d at 635 . Therefore, we conclude Kevin’s general objection was ineffective, and the trial court did not err in admitting the robbery report into evidence.
We now turn to Kevin’s argument that the trial court erred in admitting Tilmon’s evidence concerning the seizure of Kevin’s luggage by the Fayetteville police. Tilmon sought to call Sam Willie McCray, Kevin and Tilmon’s grandfather, as a witness. Tilmon initially reminded the trial court of Kevin’s motion
in limine
concerning the admissibility of evidence that Fayetteville police seized drugs from Kevin’s luggage. In indicating an intent to call McCray as a witness, Tilmon stated that in a prior interview, “McCray indicated that Kevin told him that he’d been stopped in Fayetteville on the bus; that the cops had taken his luggage but didn’t say why the law enforcement officers had taken his luggage.” Tilmon further stated he believed “McCray would testify, if asked, that Kevin told him that he was stopped at the bus station, talked to some of the officers and that they left his luggage there — they seized his luggage after a dog alerted to it.” Kevin’s counsel then responded: “We haven’t put anything on from Kevin that they could use that to impeach. I think under a 404 or 403 balancing test, it still fails the test to come in. And it now becomes, at least for practical purposes here, double hearsay.” Kevin’s counsel further argued: “It may be a prior bad act statement of the defendant. It’s not something Mr. McCray independently knows about.” The trial court allowed Tilmon’s counsel an opportunity to rebut, and TLlmon’s counsel stated: “It is our contention that it bears on the need to take the car; that it was not our client’s need; that— again, that the inability to take the bus back up through Fayetteville was based on Kevin Golphin’s problems when he encountered the law enforcement officers in Fayetteville.” Tilmon’s counsel further indicated that while McCray was not told whether there were drugs in Kevin’s luggage, McCray did have a conversation with Kevin about what happened to Kevin’s luggage. The trial court then denied Kevin’s objection.
*442
Tilmon then called McCray, and the following exchange took place, in pertinent part:
Q Did you ask Kevin about how he got down [to Greeleyville, S.C.]?
A Yeah — yes, I did.
Q What did he tell you?
A He tell me he came on the bus.
Q All right. From Richmond?
A Yes.
Q Did he indicate any stops along the way?
A Well, he told me — he said the bus stop in Fayetteville.
Q Fayetteville, North Carolina?
A Yes, sir.
Q All right. When you saw Kevin, did he have any luggage with him at all?
A No, sir.
Q Kevin tell you anything about why he didn’t have any luggage?
A Well, he said the police had took his luggage in Fayetteville.
Q Did he tell you why?
A Uh, no. He just say they take his luggage.
Q All right. Did they give it back to him?
A No, sir.
Q Did he indicate to you why they took the luggage?
[Kevin’s Counsel]: Objection, asked and answered.
A No, he didn’t — he didn’t stated [sic] why they take—
The Court: Overruled.
A —-his luggage.
The Court: Overruled.
*443
Although Kevin does not specifically argue the admission of this testimony violates his constitutional rights, he makes a general argument to that effect. However, as previously noted, this Court will not address any constitutional issue with regard to the admission of McCray’s testimony concerning the seizure of Kevin’s luggage because Kevin did not give the trial court an opportunity to pass on any such constitutional issue.
See Nobles,
350 N.C. at 495 , 515 S.E.2d at 893 .
We now turn our focus to answering the questions of whether McCray’s testimony was inadmissible as it pertained to unrelated misconduct and whether it was irrelevant as it had no bearing on the question of Tilmon’s guilt. As to the argument that McCray’s testimony was inadmissible because it related to prior misconduct,
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (1999) (emphasis added). Rule 404(b), as we have previously held, is
a c
This text is long and has been trimmed here. Open the source document for the complete record.