An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1731


Filed: 20 April 2004


v .                         Guilford County
                            No. 01 CRS 81913

    Appeal by defendant from judgment entered 14 March 2002 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 17 March 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Teresa L. White, for the State.

    James P. Hill, Jr. for defendant-appellant

    MARTIN, Chief Judge.

    Defendant was charged in a two count bill of indictment with trafficking in more than ten pounds, but less than fifty pounds, of marijuana by possession and by transportation. He appeals from judgments imposing consecutive active terms of imprisonment entered upon jury verdicts finding him guilty of both offenses.
    The evidence at trial tended to show that on 10 March 2001, members of the High Point Police Department were maintaining surveillance of defendant's home at 906 Bridges Drive, High Point, North Carolina. While other officers observed the house, Detectives Marty Ferrell (Ferrell) and Kyle Pratt (Pratt) left to obtain a search warrant. Before they returned, a man, later determined to be Jimmy Lee Shue (Shue), rode up to the house on abicycle, went to the back door, pounded on it, and demanded to be let in. Believing Shue had warned the occupants of the house, and that evidence would be destroyed, the officers went in and secured the residence until the search warrant arrived.
    When Ferrell and Pratt returned with the warrant, they read the occupants their rights and began searching the house. Ferrell also searched a 1986 Chevrolet Suburban with Texas license plates which was parked in the backyard of the residence. After finding a gas can in the back seat and noticing that the fuel gauge had been severed and reattached, Ferrell crawled under the vehicle looking for hidden compartments. He found that the front part of the gas tank had new bolts holding it in place while those in the back were rusty. When he removed the gas tank it felt heavy but without a lot of “sloshing.”
    Ferrell went back inside the house and asked defendant who owned the vehicle. When defendant responded that he owned it, Ferrell took defendant to another room to question him more thoroughly. Ferrell testified that when he asked defendant for a second time to whom the Suburban belonged, defendant responded that he had purchased the vehicle while in Texas and had “patched it together” to get it back to North Carolina. Defendant told Ferrell there was nothing in the gas tank.
    After removing the gas tank, Ferrell took it to Guil-Rand Wrecker to determine whether the tank had a hidden compartment. The officers left defendant at his residence. Ferrell and the owner of Guil-Rand Wrecker drained the gas tank and found a hiddencompartment containing large packages of plant material wrapped in cellophane. The contents of the packages were later analyzed and were determined to be 41.8 pounds of marijuana.
    Ferrell, along with two other detectives returned to defendant's house, but were unable to locate defendant. On 15 May 2001, defendant was arrested in South Carolina.
    Defendant offered evidence and testified that his mechanic loaned the Suburban to him while his car was being worked on and that he had never been to Texas. Defendant's mother, niece and hair dresser each testified that they had seen and spoken with defendant in the days preceding 10 March 2001.

    Defendant first argues that the trial court erred by striking a juror from the panel after both the State and the defense had accepted and passed him as an acceptable juror. During jury selection, the State passed Douglas Kivett as an acceptable juror. When questioned by defendant, Mr. Kivett stated he would have difficulty sending someone to jail for five years on a marijuana charge. The State then moved to reopen examination of Mr. Kivett as a prospective juror. The trial court denied the motion, ruling that the State had fair and adequate opportunity to examine Mr. Kivett. Following acceptance of Mr. Kivett as a juror by both parties, the trial court, on its own motion and over defendant's objection, struck him as a juror for cause.
    Our Supreme Court has stated:        A trial judge, in the exercise of his duty to see that a competent, impartial jury is impaneled, may in his discretion excuse a prospective juror even without challenge by either party. Decision as to a prospective juror's competency to serve is a matter resting in the trial judge's sound discretion and is not subject to review unless accompanied by some imputed error of law. The fact that a juror has been passed by both parties to the cause does not affect the court's control of jury selection.

State v. Carson, 296 N.C. 31, 40, 249 S.E.2d 417, 423 (1978). On appeal, the decision may be reversed only if the trial judge abused his discretion by making a ruling that was not the result of a reasoned decision. State v. Burrus, 344 N.C. 79, 88, 472 S.E.2d 867, 874 (1996). Even if no grounds existed for a challenge for cause, defendant is not entitled to a new trial unless he can show that the impaneled jury consisted of jurors who were not “competent and qualified to serve.” Carson at 40, 249 S.E.2d at 423.
    Defendant argues that Mr. Kivette's statement was not relevant because a prospective juror's views on punishment are only relevant in capital cases. However, “a prospective juror's bias may, in some instances, not be proven with unmistakable clarity.” State v. Gray, 347 N.C. 143, 165, 491 S.E.2d 538, 545 (1997), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998). Thus, we must rely on the trial judge's determination as to whether the prospective juror would be competent to serve. Id.