An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-937

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 99 CRS 110849
ANTWAIN RASHARD STEELE

    Appeal by defendant from judgment entered 14 August 2001 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 18 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    EAGLES, Chief Judge.

    Defendant, Antwain Rashard Steele, appeals from a conviction of second-degree murder, which stemmed from the 20 November 1999 shooting death of Michael Antonio Beasley.
    The State's evidence tends to establish the following: On 19 November 1999, defendant and several friends went to a Greensboro, North Carolina, nightclub named Club Sensations. While inside the club, defendant became involved in a verbal altercation with two unknown men, one of whom “pulled a knife” on defendant. Defendant, not wanting to fight with the men, left the club and went outside where, at approximately 1:00 a.m., he met Christopher Druttman in a parking lot adjacent to the club. Druttman was accompanied byseveral more of defendant's friends. Defendant told Druttman and the others about the confrontation. Minutes later, defendant and four friends went back “toward[] the club” to confront the men. Druttman and another man, Ron Fuller, stayed behind with their cars. Defendant and his four friends attempted to start a fight, but the two men from the club “didn't want to fight.” After some “yelling back and forth,” defendant and his friends returned to the side street where they had left Druttman and Fuller. Defendant and his friends decided to leave when they began hearing gunfire coming “from the side of the club.”
    Defendant rode with Druttman, who drove away from the side street ahead of their other friends. At approximately 3:00 a.m., as Druttman and defendant approached Club Sensations, defendant removed Druttman's SKS rifle from the rear floorboard and placed it on his lap. When Druttman stopped at the traffic light in front of the club, defendant rolled down the passenger's side window and opened fire on a crowd that had gathered outside. Defendant fired between 10 and 15 rounds “into” the crowd. Joenell Pinnix was shot once in the leg, and was later treated and released from Moses Cone Hospital. Michael Antonio Beasley was shot once in the left shoulder and died at the scene.
    Both defendant and Christopher Druttman were charged with the first-degree murder of Beasley and assault with a deadly weapon with intent to kill inflicting serious injury on Pinnix. Druttman pled guilty to second-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury and testifiedfor the State. Defendant was tried on both charges and was convicted of second-degree murder. Defendant was sentenced to a term of 189 to 236 months imprisonment. Defendant appeals.

I.

    Defendant first contends that the trial court improperly permitted the State to exercise its peremptory challenges in a racially discriminatory manner.
    Prior to jury selection, defendant requested that a questionnaire be distributed among the members of the jury pool asking jurors to identify their race for the record. The trial judge declined to distribute defendant's proposed questionnaire but did distribute his own questionnaire, which included a space for jurors to record their race. During jury selection, the State peremptorily challenged seven prospective jurors. Five of the seven challenged jurors were of African-American decent. Defendant objected to striking each of the five African-American jurors as discriminatory. Although the trial court had concluded that defendant had failed to establish a prima facie case of discrimination in each case, it allowed the prosecutor to articulate his reasons for striking the jurors. After hearing defendant's arguments in surebuttal, the trial court determined that the prosecutor's reasons were non-discriminatory and overruled each of defendant's objections.
    Defendant first argues that the trial court erred by concluding that defendant failed to establish a prima facie case of discrimination. Defendant argues that he established a prima faciecase of purposeful discrimination in the selection of a petit jury by showing that (1) defendant is a member of a cognizable racial group, and (2) the prosecutor used peremptory challenges to remove members of defendant's race from the jury. See State v. Jackson, 322 N.C. 251, 254, 368 S.E.2d 838, 840 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989). We conclude that this issue is moot and decline to address it.
    Claims of racial discrimination in the prosecution's use of peremptory challenges are analyzed under the three-part inquiry developed in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986) and Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991).
    First, defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Second, if such a showing is made, the burden shifts to the prosecutor to offer a race-neutral explanation to rebut defendant's prima facie case. Third, the trial court must determine whether the defendant has proven purposeful discrimination.

State v. Lemons, 348 N.C. 335, 360-61, 501 S.E.2d 309, 325 (1998)(citations omitted), vacated on other grounds, 527 U.S. 1018, 144 L. Ed. 2d 768 (1999). “'Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.'” State v. Williams, 355 N.C. 501, 551, 565 S.E.2d 609, 638 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). In these instances, the only issue before the appellate court is “'whether the trial court correctly concluded that the prosecutor had not intentionallydiscriminated.'” Id. at 551, 565 S.E.2d at 638-39 (citation omitted).
    Here, although the trial court initially concluded that defendant had not established a prima facie case of discrimination, the trial court allowed the prosecutor to offer his reasons for exercising each peremptory challenge and then ruled on the ultimate question of intentional discrimination. The preliminary issue of whether the defendant made a prima facie showing of discrimination is now moot.
    Defendant next argues that the trial court erroneously concluded that the prosecutor had not engaged in intentional discrimination because the reasons articulated by the prosecutor for striking African-American jurors were pretextual. We disagree.
    During voir dire, juror Sampson stated that she was familiar with the club and had been there on at least one occasion. Juror Blake-Nichols stated that she patronized the club once, became familiar with the club's reputation as a result of that visit and never returned. Juror Rogers stated that she had been to the club on multiple occasions, was familiar with its reputation, and was uncomfortable with serving on the jury because she believed one of her friends may have been at the club the night the victims were shot. Juror Robinson stated that he had patronized the club on multiple occasions and had heard that it was a “bad place.” Juror Hairston stated that she knew one of the State's primary witnesses and was a personal friend of the witness's wife.     The prosecutor explained that by striking these prospective jurors, he was merely
    trying to . . . get a jury that can be fair and impartial, without [out]side influence from any area. The two most important areas wherein outside influence could come into play in these cases are, number one, the establishment itself. The reason being, there's going to be evidence that my victim, Mr. Beasley, frequented that establishment, and a number of my witnesses were employed there as security guards. If a juror had a negative impression of that particular establishment, or happened to recognize any of my witnesses and had a negative experience with them, that could certainly create a problem.
        The other thing is, the State would like to try this case without people who have become familiar with its witnesses.

    On rebuttal, defendant argued the prosecutor's reasons were pretextual. Defendant contended that both Club Sensations and its predecessor, Side Effects, were “black” nightclubs; therefore, it would be “next to impossible” to find “a black person under the age of 45” in Guilford County who had not patronized either Club Sensations or Side Effects.
    “[T]he ultimate burden of persuading the court that intentional racial discrimination has guided the use of peremptory challenges rests on the defendant.” State v. Porter, 326 N.C. 489, 497-98, 391 S.E.2d 144, 150 (1990). The following factors are relevant in assessing whether the prosecutor's articulated reasons are legitimate or a pretext:
    First, the judge should consider “'the susceptibility of the particular case to racial discrimination.'” The race of the defendant, the victims, and the key witnesses bears upon this determination. Second, the judge should consider the prosecutor's demeanor to determine whether the prosecutor is “engaging in a careful process of deliberation based on many factors.” Third, the court should “'evaluate the explanation itself.'”
Id. at 497-98, 391 S.E.2d at 150-51 (citations omitted).
    The prosecutor's reasons “'need not rise to the level justifying exercise of a challenge for cause[,]' [s]o long as the motive does not appear to be racial discrimination . . . .” Id. at 498, 391 S.E.2d at 151 (citation omitted). “In assessing the 'entire milieu of the voir dire,' the judge must 'compar[e] his observations and assessments of veniremen with those explained by the State,' guided by his personal experiences with voir dire, trial tactics and the prosecutor and by any surrebuttal evidence offered by the defendant.” Id. at 499, 391 S.E.2d at 151 (citation omitted)(emphasis added). “Since 'the trial court is in the best position to assess the prosecutor's credibility, we will not overturn its determination absent clear error.'” Williams, 355 N.C. at 551, 565 S.E.2d at 639 (citation omitted). Our courts have consistently held that “concerns about a prospective juror's knowing the defendant or witnesses were a sufficient basis to support an excusal . . . .” State v. White, 349 N.C. 535, 551, 508 S.E.2d 253, 264 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999); State v. Littlejohn, ___ N.C. App. ___, ___, 582 S.E.2d 301, 305 (2003).
    Here, the trial court noted that during pretrial motions, both the State and defendant expressed concerns over the effect of the club's negative reputation on jurors. The trial court found that the State's primary reason for excusing the jurors was their familiarity with the club and its reputation, and that these reasons were “valid, clear and race-neutral . . . and were not madefor any improper discriminatory motive.” The trial judge based these findings on (1) “the prosecutor's demeanor in his examination of all of the jury panel[,]” and (2) “the responses of the jurors . . . .” Although no specific findings were made regarding the susceptibility of the case to racial discrimination, the record reveals that the victim, defendant and many of the witnesses were African-American. The record further reveals that the trial court considered defendant's pretext argument, but rejected it after a discussion with defense counsel concerning defendant's previous assertion that the club's bad reputation would likely have a bearing on the case. We hold the trial court's decision to allow the peremptory challenges was not clearly erroneous. Accordingly, this assignment of error is rejected.
II.

    Defendant next contends that the trial court erred by permitting one of the State's witnesses to testify that defendant refused to consent to a warrantless search of his apartment. We agree; however, after careful review of the record and trial transcript, we hold the error was harmless beyond a reasonable doubt.
    Police arrested defendant at his apartment at approximately 2:00 a.m. on 10 December 1999. Detective Whitt testified on direct examination:
    Q:    Did you attempt to search his apartment?
    A:    Yes, sir, I did.
    Q:    How did you go about doing that?
    A:    I asked him for consent, if he would allow me and officers who were assisting me to assist in searching his apartment, as a verbal consent. Heindicated at that point I'd need to get a search warrant.

            [DEFENSE COUNSEL:]    Objection, your Honor. Move to strike.
            THE COURT:        Objection's overruled.
    Q:    He denied you an opportunity to search the apartment without a search warrant?
    A:    Yes, Sir.
            [DEFENSE COUNSEL:]    Objection.
            THE COURT:        Overruled.
    Q:    Once he had denied that, what did you do?
    A:    At that point, of course, Mr. Steele was taken into custody. I then secured the apartment. And it was secured by our officers, until a search warrant was obtained for the premises.
    Defendant testified that he refused to give Detective Whitt consent to search his apartment because the arresting officers repeatedly refused to tell him why he was being arrested; each time defendant asked, the officers said: “We'll tell you when you get downtown.” Citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976) and Grunewald v. United States, 353 U.S. 391, 1 L. Ed. 2d 931 (1956), defendant argues that presentation of evidence that defendant declined to consent to a search constitutes reversible, constitutional error, because it was offered only for the purpose of implying guilt.
    It is constitutional error to admit testimony as evidence of guilt that a defendant exercised his constitutional rights and refused to consent to a warrantless search. State v. Jennings, 333 N.C. 579, 605, 430 S.E.2d 188, 200, cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993). Constitutional error “is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.” G.S. § 15A-1443(b). Error is harmless beyond a reasonable doubt when there is no reasonable possibility that theerroneous admission of the evidence contributed to the conviction. State v. Hooper, 318 N.C. 680, 682, 351 S.E.2d 286, 288 (1987). “The test of harmless error must be applied on a case-by-case basis.” State v. Atkins, 58 N.C. App. 146, 149, 292 S.E.2d 744, 746, disc. review denied and appeal dismissed, 306 N.C. 744, 295 S.E.2d 480 (1982). Overwhelming evidence of guilt may alone render error of constitutional dimension harmless beyond a reasonable doubt. State v. Rhodes, 151 N.C. App. 208, 218, 565 S.E.2d 266, 272, disc. review denied, 356 N.C. 173, 569 S.E.2d 273 (2002).
    Here, the record reveals that the subsequent search of defendant's apartment yielded nothing of evidentiary value. Therefore, the testimony was not offered for any necessary evidentiary purpose; rather, it was intended to imply defendant's guilt by improperly suggesting that he had something to hide. Accordingly, the testimony was improperly admitted. Nevertheless, we conclude the error was harmless.
    First, the evidence against defendant was overwhelming. In light of Druttman's testimony, we are convinced that there is no reasonable possibility that this portion of Detective Whitt's testimony had any bearing on the outcome of the trial. Moreover, the record as a whole tends to negate any suggestion that defendant was trying to hide something from police by asserting his rights. See Jennings, 333 N.C. at 605, 430 S.E.2d at 200. Detective Whitt testified that after defendant refused to give him consent to search, the apartment was secured by police until a search warrant could be obtained. In spite of this, there was no mention of anyevidence purported to have been obtained as a result of that search. Furthermore, defendant testified to explain the circumstances that led to his refusal of Detective Whitt's request. In light of those circumstances, defendant's assertion of his rights and refusal to consent “does not seem so unreasonable as to destroy defendant's credibility in the eyes of the jury . . . .” Id. Finally, there is no evidence in the record that the prosecutor either cross-examined defendant on the assertion of his rights or commented on the matter during closing argument. See State v. Elmore, 337 N.C. 789, 793, 448 S.E.2d 501, 503 (1994). We hold that error in the admission of this testimony was harmless beyond a reasonable doubt. Accordingly, this assignment of error is rejected.
III.

    Defendant next contends that the trial court erred by denying his request for an instruction on involuntary manslaughter.
    During the State's case in chief, Christopher Druttman testified in part:
    Well, when I was driving, he [defendant] turned, so his back was kind of to me, and his back was almost resting against my body, and he was shooting out the window. And it looked like he had the gun pointed in the air.

    Defendant argues that this testimony supported an instruction on involuntary manslaughter because the jury could have found that defendant only intended to fire over the crowd, and decided that defendant was only culpably negligent in doing so. We disagree.
    “Involuntary manslaughter is 'the unintentional killing of a human being without malice, proximately caused by (1) an unlawfulact not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.'” State v. Lane, 115 N.C. App. 25, 28, 444 S.E.2d 233, 235 (citation omitted), disc. review denied, 337 N.C. 804, 449 S.E.2d 753 (1994). “[I]nvoluntary manslaughter is a lesser included offense of murder . . . .” State v. Greene, 314 N.C. 649, 652, 336 S.E.2d 87, 89 (1985). “[T]he trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense.” State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). However, a defendant is not entitled to an instruction on involuntary manslaughter, as a lesser-included offense of murder, where all the evidence shows that defendant “intentionally discharged [a firearm] under circumstances naturally dangerous to human life.” Id. at 322, 230 S.E.2d at 154.
    Here, all of the evidence tended to show that defendant intentionally fired the rifle between 10 and 15 times. There is no evidence that the weapon discharged accidentally. Moreover, few circumstances are more “naturally dangerous to human life” than indiscriminately firing a high-powered rifle out the window of a moving car in the direction of a crowd of people. We hold that defendant was not entitled to an instruction on involuntary manslaughter. Accordingly, this assignment of error is rejected.
IV.
    Defendant next contends that the trial court erred by instructing the jury on the doctrine of transferred intent.
    Defendant first argues that the evidence did not support an instruction on transferred intent because the State failed to identify any particular person defendant intended to harm. We disagree.
    The doctrine of transferred intent applies where one engages in an affray with another and unintentionally kills a third person. State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992). Where this occurs, the actor's conduct toward the victim is “'interpreted with reference to his intent and conduct towards his adversary[,]'” and criminal liability for the third party's death is determined “'as if the fatal act had caused the death of [the] adversary.'” Id. (citation omitted). “'[I]t is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law.'” State v. Andrews, 154 N.C. App. 553, 559, 572 S.E.2d 798, 802 (2002)(citation omitted)(emphasis added).
    Here, the State's evidence tended to establish that defendant was involved in an ongoing affray with the two men who pulled the knife on him inside the club. Although the initial altercation took place inside the club, defendant continued it by confronting these same individuals again outside the club sometime later. Druttman testified that defendant and his friends walked back toward the club to confront these individuals. Furthermore, although Druttmanwas not paying particular attention to the confrontation, his testimony indicated that he could hear and see it from his vantage point on the street adjacent to the club. It is reasonable to infer, then, that the two men from the club were outside the club just prior to the shooting. A few minutes after the men declined defendant's invitation to fight, defendant and his friends returned to their cars and left driving toward the club, where defendant opened fire on the crowd that was congregating outside the club.
    We conclude the evidence permits a reasonable inference that defendant was shooting at the two men he had just confronted in front of the club. We hold that this satisfies the requirement that defendant act with the requisite intent toward someone; that the true identity of that someone is unknown is immaterial where, as here, the evidence is sufficient to establish that defendant in fact acted with the necessary intent. Accordingly, this assignment of error is rejected.
    Defendant next argues that by giving the transferred intent instruction, the trial court lessened the State's burden of proof as to the element of intent. We disagree. An instruction on the doctrine of transferred intent that conforms with the pattern jury instruction, “d[oes] not have the effect of relieving the State of any part of its burden of persuasion on an essential element; instead, it merely state[s] the substantive law of this state.” Locklear, 331 N.C. at 245, 415 S.E.2d at 729. Since the trial court's instruction here conformed to the pattern jury instruction, this assignment of error is overruled.
V.

    Defendant next contends that the trial court erroneously instructed the jury regarding the “intent” element of second-degree murder.
    After deliberations began, the jury requested supplemental instructions on the “intent” element of second-degree murder. Specifically, the jury inquired as to whether the term “intentionally killed” was satisfied by intentionally doing the act that resulted in the death as opposed to specifically intending to cause the death. The trial judge submitted his proposed supplemental instruction to both counsel out of the jury's presence, giving both counsel the opportunity to object to the proposed instructions and/or request additional instructions. Defense counsel neither objected nor requested additional instructions. The trial court gave its supplemental instructions and the jury recessed for lunch. The trial court again asked defendant if he wished to be heard on the matter. Defendant replied: “No.”
    Defendant asserts two arguments on appeal. Defendant first argues that the trial court improperly relied on an annotation to G.S. § 14-17, i.e., State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985), disc. review denied, 316 N.C. 196, 341 S.E.2d 579 (1986), to frame its definition of “intent.” Defendant submits that the instruction was flawed because the annotation was “incomplete and did not convey the entire thought and import” of Allen. Defendant next argues that the trial court's reference to “anaccidental discharge of a weapon” in its instruction was improper because it constituted the use of a “hypothetical situation,” that was unsupported by the evidence before the jury. We conclude defendant has waived appellate review of this issue.
    “A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection . . . .” N.C.R. App. P. 10(b)(2). A question not preserved by objection at trial or not otherwise deemed preserved by rule or law without objection, may nevertheless “be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4).
    Here, defendant failed to object to the trial court's supplemental instruction or to request additional instructions, despite being given two separate invitations to do so out of the jury's presence. Further, defendant does not contend that the trial court's supplemental instruction amounted to plain error. We hold defendant has waived appellate review of this issue. Accordingly, this assignment of error is rejected.
VI.

    Defendant's final contention is that the trial court erred by failing to vacate his conviction of second-degree murder after the jury returned an “inconsistent” verdict of acquittal with respect to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. We disagree.    The essential elements of assault with a deadly weapon with intent to kill inflicting serious injury are “(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death.” State v. Cain, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905 (emphasis added), disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). In contrast, “'[s]econd-degree murder is an unlawful killing with malice, but without premeditation and deliberation.'” State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)(citation omitted). Because specific “'[i]ntent to kill is not a necessary element of second-degree murder,'” id. (citation omitted), we conclude the verdicts are not inconsistent.
    Contrary to defendant's assertion, it was entirely plausible for the jury in this case to have concluded that although defendant intentionally and maliciously fired the rifle out the window of Druttman's car, he did so without specific intent to kill. Accordingly, we hold the trial court did not err by entering judgment on the jury's verdicts.
    For all the foregoing reasons, we hold defendant received a fair trial, free from prejudicial error.
    No prejudicial error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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