STATE OF NORTH CAROLINA
v
.
Gaston County
No. 99 CRS 23208
MAURICE GARVIN
Attorney General Roy Cooper, by Assistant Attorney General W.
Wallace Finlator, Jr., for the State.
Miles and Montgomery, by Lisa Miles, for defendant.
McGEE, Judge.
Maurice Garvin (defendant) was indicted on 6 July 1999 for
assault with a deadly weapon with intent to kill inflicting serious
injury in violation of N.C. Gen. Stat. § 14-32(a). Defendant pled
not guilty and was tried before a jury. At the close of the
evidence and before closing arguments, the trial court learned from
a probation officer that one of the jurors, Mr. Sanders (Sanders),
was on probation for misdemeanor employment security fraud.
Over defendant's objection, the trial court permitted the
State and defendant to question Sanders. Upon questioning by the
State, Sanders stated that he had been on probation for one year,
had "a couple more months" left on probation, and was currently
making restitution pursuant to a court order. Defendant askedSanders whether he felt he "could be fair and impartial, continue
to be fair and impartial in the trial of these cases?" Sanders
responded, "Yes."
The trial court stated:
Mr. Sanders, I will excuse you on that. It's
a misdemeanor that doesn't automatically
disqualify you, but as long as that probation
matter is pending, then that means that you
are involved in a case whereby the State is
your adversary. So that's the reason why you
would have to be excused. It is not that it
would automatically disqualify you from
service. If it had been a civil case, it
wouldn't have mattered, but since the State is
a party in this case then that would mean you
are involved in a litigation. You are a juror
in a case where one of your adversaries is in
litigation. So therefore I will excuse you
but thank you.
The trial court substituted an alternate juror for Sanders and
charged the jury. The jury found defendant guilty of assault with
a deadly weapon with intent to kill inflicting serious injury.
Defendant was sentenced to 132 months to 168 months in prison.
From this judgment, defendant appeals.
Defendant raised eleven assignments of error on appeal;
however, in his brief to our Court, he only argues one assignment
of error. The remaining assignments of error, therefore, are
deemed abandoned. N.C.R. App. P. 28(a) ("Questions raised by
assignments of error in appeals from trial tribunals but not then
presented and discussed in a party's brief, are deemed
abandoned.").
Defendant argues the trial court committed reversible error in
excusing Sanders for cause at the close of the evidence. Specifically, defendant contends there was no indication that
Sanders would be unable to render a fair and impartial verdict in
defendant's case. Defendant also argues that the trial court
improperly abdicated its judicial discretion in excusing Sanders.
Further, defendant contends Sanders' excusal from the jury
prejudiced defendant because "[p]rejudice can be demonstrated by
the very fact of the defendant's conviction following the removal
of a juror whom the defendant wanted but the State did not."
"While there is no statutory provision covering the situation
when a party seeks to challenge a juror after impanelment, N.C.G.S.
§ 15A-1215(a) allows the trial court to replace a juror with an
alternate juror should the original one become disqualified or be
discharged for some reason." State v. Richardson, 341 N.C. 658,
672-73, 462 S.E.2d 492, 502 (1995) (internal citation omitted).
The trial court "may excuse a juror without challenge by any party
if [it] determines that grounds for challenge for cause are
present." N.C. Gen. Stat. § 15A-1211(d) (1999). "A challenge for
cause to an individual juror may be made by any party on the ground
that the juror . . . is unable to render a fair and impartial
verdict." N.C. Gen. Stat. § 15A-1212(9) (1999).
A ruling by the trial court on whether to excuse a juror for
cause is solely within the discretion of the trial court, and the
trial court's decision will only be overturned on appeal if an
abuse of discretion is shown. State v. Reed, 355 N.C. 150, 155,
558 S.E.2d 167, 171 (2002). "An 'abuse of discretion' occurs where
the trial judge's determination is '"manifestly unsupported byreason"' and is '"so arbitrary that it could not have been the
result of a reasoned decision."'" Id. (quoting State v. T.D.R.,
347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (quoting White v.
White, 312 N.C. 770, 777, 324 S.E.2d 829, 832 (1985))). We note
that "a prospective juror's bias may not always be 'provable with
unmistakable clarity [and,] [i]n such cases, reviewing courts must
defer to the trial court's judgment concerning whether the
prospective juror would be able to follow the law impartially.'"
State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 908 (1993)
(quoting State v. Davis, 325 N.C. 607, 624, 386 S.E.2d 418, 426
(1989), cert. denied, 496 U.S. 905, 110 L. Ed. 2d 268 (1990)).
We disagree with defendant that the trial court abdicated its
discretion in excusing Sanders. Rather, we find the trial court
properly exercised its discretion in dismissing Sanders for cause
and this decision is supported by the record before us. The trial
court conducted an inquiry of Sanders and, although Sanders
indicated he could be fair and impartial, he also confirmed his
probationary status based upon a conviction for misdemeanor
employment security fraud. The trial court explained that,
although conviction of a misdemeanor would not automatically
disqualify Sanders as a juror, because defendant's case was a
criminal one, Sanders' probationary status meant he was a juror in
a case where his own adversary, the State, was a party. "It is
well established that a trial judge has the power to regulate and
supervise the selection of a jury so that the defendant and the
State have the benefit of trial by an impartial jury." State v.McLamb, 313 N.C. 572, 575, 330 S.E.2d 476, 478 (1985) (citing State
v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. denied, 414 U.S. 850,
38 L. Ed. 2d 99 (1973)). In the present case, the trial court
properly exercised its discretion in removing Sanders.
Furthermore, although defendant argues he was prejudiced by
Sanders' excusal, he has failed to show that the trial court's
decision was manifestly unsupported by reason or so arbitrary that
it could not have been the result of a reasoned decision. We find
no abuse of discretion in the trial court's decision.
No error.
Judges WALKER and CAMPBELL concur.
Report per Rule 30(e).
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