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1. Jury_-challenge for cause--failure to make futile effort to challenge juror
The trial court did not abuse its discretion in a first-degree felony murder case by refusing
to excuse two prospective jurors for cause, because: (1) a defendant must make a futile effort to
challenge a juror after exhausting peremptory challenges in order to demonstrate prejudice, and it
is insufficient for defendant to simply challenge a juror for cause, exhaust all peremptory
challenges, and then renew his previous challenge for cause in order to preserve his exception;
(2) during the process, defendant never challenged the twelfth juror or indicated that he would
have used a peremptory challenge to excuse him if he had any peremptory challenges remaining;
(3) although it is clear that defendant sought to have a peremptory challenge restored prior to
passing on the twelfth juror, there is nothing in the record to indicate that he would have used
that restored challenge to excuse that juror, and thus, defendant cannot show he was forced to
seat a juror whom he did not want based on exhaustion of his peremptory challenges; and (4)
assuming arguendo the trial court abused its discretion, any such error was without prejudice.
2. Evidence--prior crimes or bad acts_-character for violence--failure to make offer of
proof
The trial court did not err in a first-degree felony murder case by refusing to admit the
cross-examination testimony of defendant's girlfriend (also the victim's daughter) regarding
specific instances of violent threats by the victim against two other individuals, because: (1)
defendant made no offer of proof concerning the proposed testimony, thus leaving the Court of
Appeals to only speculate as to what the witness might have said; (2) the significance of the
proposed testimony was not obvious from the record; and (3) the witness's testimony in no way
indicated that defendant was aware of previous confrontations between the victim and men who
mistreated the witness, so it was unclear whether the proposed testimony would have bolstered
defendant's claim that he was reasonably afraid of the victim.
3. Appeal and Error--preservation of issues--failure to argue
The remaining assignments of error that defendant failed to argue are deemed abandoned
under N.C. R. App. P. 28(b)(6).
Judge HUDSON dissenting.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
Marshall Dayan for defendant-appellant.
CALABRIA, Judge.
Dennis Marshall Clemmons (defendant) appeals from a judgment
entered upon a jury verdict finding him guilty of first degree
felony-murder. We find no error.
At trial in Harnett County Superior Court, Sonya Spears
(Spears) testified that she arrived home on the afternoon of 2
March 2004 and began arguing with her boyfriend, defendant, in the
street. During the argument, defendant struck Spears in the head
with a brick. Spears went to her uncle's home and telephoned her
father, Thurman Allen (the victim), asking him to pick her up.
Spears then returned and continued arguing with defendant, who
snatched a necklace from her neck.
When the victim arrived, Spears and Danielle Clemmons
(Danielle) got into his pickup truck. Danielle is Spears' cousin
and defendant's niece. The victim asked Spears who hit her, but
she refused to identify her attacker. [D]ad, let's just go, I
don't want no trouble around here, I don't want you to get in no
trouble, so let's just go, she stated. The victim asked defendant
and his brother, Herbert (Herbert), whether they had hit Spears.
They both answered no and defendant suggested the victim ask
Spears.
The victim then started to get out of the truck, and Spears
grabbed a shotgun that the victim carried on the floorboard of his
truck. Defendant took out a handgun and began firing it at thevictim, hitting him in the head, arm, hand, and hip. The medical
examiner concluded that the victim died as a result of the gunshot
to his hip, which severed his aorta and inferior vena cava and
caused severe internal bleeding.
Defendant testified that he had retrieved the handgun from his
brother's mobile home after Spears told him the victim was coming
to pick her up. Defendant had experienced prior confrontations
with the victim in which the victim had warned him not to hit
Spears. Further, defendant was aware that the victim once pulled
a handgun on Cedric McCall (McCall), who was arguing with Spears,
and another time came over with a shotgun to confront Herbert, who
was then dating Spears.
Defendant stated that these encounters made him afraid the
victim would attack him, prompting him to arm himself with a
handgun. Defendant testified that he shot the victim in self-
defense when the victim started to get out of his truck with the
shotgun and continued firing when the victim got out of the truck
and aimed the shotgun at defendant. Danielle's testimony tended to
support defendant's version of events, as she stated that she saw
the victim clutching the shotgun and chambering a shell before he
fell to the ground. She stated that after the victim had fallen,
defendant retrieved the victim's wallet and took the money.
Defendant was arrested and charged with first degree murder and
robbery with a dangerous weapon.
Following the trial, the jury returned a verdict finding
defendant guilty of first degree felony-murder. Upon that verdict,Judge Steve A. Balog entered judgment, sentencing defendant to life
imprisonment without parole. From that judgment, defendant
appeals.
[1] On appeal, defendant initially argues that the trial court
erred by refusing to excuse two prospective jurors for cause. He
contends that the court's denial of his challenges for cause denied
him the right to a trial by an impartial jury as guaranteed by the
United States and North Carolina Constitutions, but because
defendant did not raise these constitutional arguments before the
trial court, we will not consider them on appeal. State v. Smith,
359 N.C. 199, 208-09 607 S.E.2d 607, 615 (2005). However,
defendant also argues that the trial court abused its discretion in
denying the challenges for cause and we conclude that defendant has
preserved his right to bring forward this assignment of error
pursuant to N.C.G.S. § 15A-1214(h) (2005).
During jury selection, a party may challenge a potential juror
for cause on the ground that he is unable to render a fair and
impartial verdict. N.C. Gen. Stat. § 15A-1212(9) (2005). Id.
North Carolina General Statute § 15A-1214 provides the statutory
method for preserving a defendant's right to seek appellate relief
when a trial court refuses to allow a challenge for cause . . . and
is the only method by which such rulings may be preserved for
appellate review. State v. Morgan, 359 N.C. 131, 148, 604 S.E.2d
886, 897 (2004) (citation and quotation marks omitted).
North Carolina General Statute . 15A-1214(h) (2005) sets forth
the method by which a defendant may seek reversal of a convictionwhere his juror challenges for cause were denied. That statute
states in relevant part:
(h) In order for a defendant to seek reversal
of the case on appeal on the ground that the
judge refused to allow a challenge made for
cause, he must have:
(1) Exhausted the peremptory challenges
available to him;
(2) Renewed his challenge as provided in
subsection (i) of this section; and
(3) Had his renewal motion denied as to the
juror in question.
(i) A party who has exhausted his peremptory
challenges may move orally or in writing to
renew a challenge for cause previously denied
if the party either:
(1) Had peremptorily challenged the juror; or
(2) States in the motion that he would have
challenged that juror peremptorily had his
challenges not been exhausted.
The judge may reconsider his denial of the
challenge for cause, reconsidering facts and
arguments previously adduced or taking
cognizance of additional facts and arguments
presented. If upon reconsideration the judge
determines that the juror should have been
excused for cause, he must allow the party an
additional peremptory challenge.
Id.
Our courts have interpreted this statute as follows:
Where the court has refused to stand aside a
juror challenged for cause, and the party has
then peremptorily challenged him, in order to
get the benefit of his exception he must
exhaust his remaining peremptory challenges,
and then challenge another juror peremptorily
to show his dissatisfaction with the jury, and
except to the refusal of the court to allow
it.
State v. Watson, 310 N.C. 384, 396, 312 S.E.2d 448, 456
(1984)(citations omitted). This interpretation was recently
affirmed in State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005).
In that case, the Court noted that the defendant could not gain
reversal of his conviction even if he demonstrated that the trial
court abused its discretion in denying his juror challenges for
cause because he failed to signal his dissatisfaction at the jury's
composition by lodging unsuccessful challenges. Id. at 704-05, 617
S.E.2d at 38.
Based on the above statute and case law, it is clear that a
defendant must make a futile effort to challenge a juror after
exhausting peremptory challenges in order to demonstrate prejudice.
It is insufficient for a defendant to simply challenge a juror for
cause, exhaust all peremptory challenges, and then renew his
previous challenge for cause in order to preserve his exception.
[A] defendant, in order to preserve his exception to the court's
denial of a challenge for cause, must (1) exhaust his peremptory
challenges and (2) thereafter assert his right to challenge
peremptorily an additional juror. State v. Allred, 275 N.C. 554,
563, 169 S.E.2d 833, 838 (1969)(emphasis added). The purpose for
challenging the additional juror is to establish prejudice by
showing that appellant was forced to seat a juror whom he did not
want because of the exhaustion of his peremptory challenges. State
v. Hartman, 344 N.C. 445, 459-60, 476 S.E.2d 328, 336 (1996).
Here, defendant initially challenged jurors McFarland and Byrd
for cause and was denied. Defendant then used two of his sixperemptory challenges to excuse McFarland and Byrd and subsequently
exhausted all remaining peremptory challenges. After eleven jurors
were seated, defendant in an off-the-record bench conference
renewed his challenges for cause and his motion was again denied by
the court. Defendant then passed on the twelfth juror without
objection.
During this process, the defendant never challenged the
twelfth juror or indicated that he would have used a peremptory
challenge to excuse him if he had any peremptory challenges
remaining. The process was summarized in the following exchange:
THE COURT: . . . The defendant had renewed
motions here at the bench with regard to
jurors about which he had moved to excuse for
cause, and had been denied by the court. I
believe that took place at a point in time
after we had 11 jurors?
MR. REECE: That's correct, Your Honor.
THE COURT: And when the defendant _ when the
attorneys approached the bench, that was the
subject matter here at the bench. The motion
was renewed at a point in time where the
defendant had used six peremptory challenges
after a previous challenge for cause had been
denied, and here at the bench renewed the
motion to excuse those folks for cause. And
that motion was denied, and is now documented
on the record.
And then that occurred again when we were
in selection for the alternate juror. Again,
the defendant approached the bench, with
opposing counsel, and moved to renew the
challenge for cause on the jurors that the
court had denied the challenge for cause, and
that motion was renewed and challenge for
cause was also denied.
At which point in each case the defendant
being without further peremptory challenges,
and accepted the final juror on the original
12 and the alternate juror.
Does that accurately reflect what occurredwith the jury?
MR. REECE: Yes, sir, I believe it does.
THE COURT: Anything else you'd like to add?
MR. REECE: No, sir, I think that's an accurate
statement.
Although it is clear that the defendant sought to have a
peremptory challenge restored prior to passing on the twelfth
juror, there is nothing in the record to indicate that he would
have used that restored challenge to excuse that juror. As such,
defendant cannot show[] that [he] was forced to seat a juror whom
he did not want because of the exhaustion of his peremptory
challenges. This fact defeats the defendant's claim of prejudice.
Thus, assuming arguendo that the trial court abused its discretion
by denying the defendant's challenges of jurors McFarland and Byrd
for cause, any such error amounted to error without prejudice.
Accordingly, this assignment of error is overruled.
[2] Defendant next argues the trial court erred by refusing to
admit the cross-examination testimony of Spears regarding specific
instances of violent threats by the victim against McCall and
Herbert. We disagree.
As a general rule, evidence of a victim's
character is not admissible. The rule,
however, has exceptions. An accused, for
example, may introduce evidence of a pertinent
trait of character of the victim that is
relevant to an issue in the case. Where an
accused argues that he acted under
self-defense, the victim's character may be
admissible for two reasons: to show
defendant's fear or apprehension was
reasonable or to show the victim was the
aggressor.
State v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 705-06 (1994).
(citations and quotation marks omitted).
However, a defendant who is denied the opportunity to present
evidence of a victim's character trait must take certain steps to
preserve the issue for appellate review.
In order to preserve the exclusion of evidence
for appellate review, the significance of the
excluded evidence must be made to appear in
the record and a specific offer of proof is
required unless the significance of the
evidence is obvious from the record. The
reason for such a rule is that the essential
content or substance of the witness' testimony
must be shown before we can ascertain whether
prejudicial error occurred. In the absence of
an adequate offer of proof, we can only
speculate as to what the witness' answer would
have been.
State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310-11 (1994)
(internal citations and quotation marks omitted).
The relevant exchange in the record is set forth as follows:
[Defendant's counsel]: . . . Did your father
ever confront [McCall] about the way he
treated you?
[Spears]: Cedric, yes, he had.
[Defendant's counsel]: In fact, he pulled a
shotgun on him, did he not?
[Prosecutor]: Objection.
THE COURT: Sustained.
[Defendant's counsel]: You had a relationship
with Herbert Clemmons?
[Spears]: Yes, I did.
[Defendant's counsel]: That's [defendant]'s
brother?
[Spears]: Yes, it was.
[Defendant's counsel]: There came a time where
you called your father because you didn't like
the way Herbert was treating you?
[Spears]: Correct.
[Defendant's counsel]: Your father came and
confronted Herbert about it?
[Spears]: Correct.
[Defendant's counsel]: Pulled a gun on him?
[Prosecutor]: Object.
THE COURT: Sustained.
Since defendant made no offer of proof concerning Spears'
proposed testimony, this Court can only speculate as to what she
might have said. The significance of the proposed testimony is not
obvious from the record, which provides no guidance as to the
subject matter of Spears' testimony or its relevance to defendant's
claim of self-defense. Spears' testimony in no way indicates that
defendant was aware of previous confrontations between the victim
and men who mistreated Spears, so it is unclear whether Spears'
proposed testimony could have bolstered defendant's claim that he
was reasonably afraid of the victim. Because no offer of proof was
made, we cannot know whether Spears would have answered that the
victim had in fact pulled a gun on McCall and Herbert. Thus, there
is no indication that defendant could have used the evidence to
establish the victim's character for violence and demonstrate that
the victim was the initial aggressor. Accordingly, this issue is
not properly preserved for appellate review. Further, defendant's
arguments relating to alleged constitutional violations were notpreserved by timely objection at the trial court and will thus not
be considered on appeal.
[3] Defendant has failed to argue his remaining assignments of
error on appeal, and they are thus deemed abandoned pursuant to
N.C. R. App. P. 28(b)(6) (2006). (Assignments of error not set out
in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as
abandoned.)
No error.
Judge HUNTER concurs.
Judge HUDSON dissents in a separate opinion.
The Judges participated in this decision and submitted this
opinion for filing prior to 1 January 2007.
HUDSON, Judge, dissenting.
The majority concludes that defendant has not preserved the
issue of whether the trial court abused its discretion in denying
his challenges for cause to two veniremembers. Because I believe
that defendant has preserved his right to bring forward this
assignment of error pursuant to N.C. Gen. Stat. § 15A-1214(h)
(2004), I respectfully dissent.
During jury selection, a party may challenge a potential juror
for cause on the ground that he is unable to render a fair and
improper verdict. N.C. Gen. Stat. § 15A-1212(9) (2004). N.C. Gen.
Stat. § 15A-1214 provides the statutory method for preserving a
defendant's right to seek appellate relief when a trial courtrefuses to allow a challenge for cause . . . and is the only method
by which such rulings may be preserved for appellate review.
State v. Morgan, 359 N.C. 131, 148, 604 S.E.2d 886, 896 (2004).
N.C. Gen. Stat. § 15A-1214(h) states that:
In order for a defendant to seek reversal of
the case on appeal on the ground that the
judge refused to allow a challenge made for
cause, he must have:
(1) Exhausted the peremptory challenges
available to him;
(2) Renewed his challenge as provided in
subsection (i) of this section; and
(3) Had his renewal motion denied as to
the juror in question.
Id. Subsection (i) states that a party who has exhausted his
peremptory challenges may move to renew a challenge for cause
previously denied if the party had peremptorily challenged the
juror or states in a motion that he would have done so if his
challenges had not been exhausted. Id. Here, I conclude that
defendant complied with N.C. Gen. Stat. § 1214: he moved to excuse
prospective jurors McFarland and Byrd for cause, he employed
peremptory challenges to remove both from the jury after the court
denied his motions for cause, he exhausted the peremptory
challenges available to him, and he renewed his motions for cause
as to the jurors in question, which motions the court denied.
[I]n addition to preserving error, defendant must show error
by (1) demonstrating that the trial court abused its discretion in
denying the challenge, and (2) showing defendant was prejudiced by
this abuse of discretion. State v. Smith, 359 N.C. 199, 206, 607S.E.2d 607, 614 (2005), citing State v. Grooms, 353 N.C. 50, 68,
540 S.E.2d 713, 725 (2000), cert. denied, 534 U.S. 838, 151 L. Ed.
2d 54, 122 S. Ct. 93 (2001). In order to show prejudice, in
addition to complying with the procedures of N.C. Gen. Stat. § 15A-
1214, defendant must also have challenged an additional juror after
exhausting his peremptory challenges. State v. Hartman, 344 N.C.
445, 459-60, 476 S.E.2d 328, 336 (1996). In some cases, our courts
have referred to this challenge to an additional juror as
requesting an additional peremptory challenge. State v. Call,
349 N.C. 382, 402, 508 S.E.2d 496, 509 (1998). N.C. Gen. Stat. §
15A-1214(i) states that after a party moves to renew a challenge
for cause previously denied:
The judge may reconsider his denial of the
challenge for cause, reconsidering facts and
arguments previously adduced or taking
cognizance of additional facts and arguments
presented. If upon reconsideration the judge
determines that the juror should have been
excused for cause, he must allow the party an
additional peremptory challenge.
Id. However, the official commentary refers to this as the
restoration of a previously used challenge . . . an attempt to
exercise the peremptory challenge which the party asserts should be
restored to him. Id. Thus, if the court grants the renewed
motion for cause as to a juror previously peremptorily removed, the
peremptory challenge that had been used to eliminate that juror
would be restored. Indeed, although the trial court has authority
to restore a peremptory challenge . . . [it] ha[s] no authority to
provide defendant with additional peremptory challenges. State v.
Smith, 359 N.C. at 207-08, 607 S.E.2d at 615. I conclude thatwhether the party refers to this challenge to an additional juror
as a renewed challenge for cause or a request for an additional
peremptory is inconsequential: if the court grants the renewed
challenge for cause, it will restore a peremptory challenge to
defendant. The essence of the requirement is that defendant
show[] that [he] was forced to seat a juror whom he did not want
because of the exhaustion of his peremptory challenges. State v.
Hartman, 344 N.C. at 459-60, 476 S.E.2d at 336.
Here, after the court denied defendant's motions to excuse
prospective jurors McFarland and Byrd for cause, defendant
exercised peremptory challenges to remove McFarland and Byrd.
Defendant also exercised four additional peremptory challenges,
thus exhausting the six peremptory challenges allowed by N.C. Gen.
Stat. § 15A-1217(b)(1) (2004). After eleven jurors were seated and
defendant had exhausted all of his peremptory challenges, defense
counsel approached the bench during voir dire of the twelfth juror,
Mr. Leggett. Following an off-the-record bench conference,
defendant passed on Mr. Leggett, who had a pending DWI charge and
whose mother had been a crime victim. At the conclusion of jury
selection, the court stated that there were matters that needed to
go on the record outside the presence of the jury and stated for
the record that after eleven jurors were seated
defendant had renewed motions here at the
bench with regard to jurors about which he had
moved to excuse for cause, and had been denied
by the court . . . The motion was renewed at a
point in time where the defendant had used six
peremptory challenges after a previous
challenge for cause had been denied, and here
at the bench renew the motion to excuse thosefolks for cause. And that motion was denied,
and is now documented on the record. . . .At
which point . . . the defendant being without
further peremptory challenges . . . accepted
the final juror on the original 12.
(Emphasis added). The clear implication of this excerpt is that
defendant only accepted the twelfth juror because he had no more
challenges. I thus conclude that defendant has adequately shown
that he was forced to seat a juror whom he did not want because of
the exhaustion of his peremptory challenges. Hartman, 344 N.C. at
460, 476 S.E.2d at 336.
Further, I would conclude that the court abused its discretion
in denying defendant's motions for cause and would remand for a new
trial. It is well-established that we review the trial court's
decision to deny a challenge for cause for abuse of discretion.
See, e.g., State v. Lee, 292 N.C. 617, 621, 234 S.E.2d 574, 577
(1977). During voir dire, prospective juror McFarland revealed
that he had served as a police officer for eleven years and had
worked with some of the officers who were witnesses in this case.
The prosecutor asked him if he would be able to listen to the
testimony of law enforcement officers with the same test of
credibility as any witness that would testify, to which McFarland
replied that it would be difficult. All I can say is that this is
my first time. I'd give it my best shot. During defense
counsel's voir dire examination of McFarland, the following
exchange took place:
Q: . . . would it be fair to say that you
already had leanings or inclinations with
respect to criminal cases where law
enforcement is involved? A: I just felt like that _ although I'm not
employed, per se, with the police now . . . I
guess symbolically I feel like I'm part . . .
of the team or some loyalty to it simply
because I had worked with a lot of the guys
and gone through some of this. That's
basically what I feel.
Q: Sure. Let me ask you this. You indicated
that with respect to the testimony of the law
enforcement officers, you'd believe what they
said?
A: Yes, sir.
Q: That's because the position that they
occupy and because of your own personal
feelings as part of a team or whatever?
A: Yes, sir.
Q: Okay. And that's as we sit here before
you've even heard any testimony or heard any
cross examination of any of the evidence?
A: I'm sorry?
Q: And you feel that way now before you've
even heard anyone, any law enforcement officer
testify, or anybody testify?
A: Well, it's the first time I've been on a
jury, so all of it's new to me. But I'd do
the best I can to be impartial and objective.
Although it would be, like I stated before, it
would be difficult in having worked with some
of these guys that are here today.
* * *
Q: But as you're sitting there, you indicated
that you already have some feelings about the
testimony of law enforcement in this case?
A: Right.
Q: Okay. You feel like you're part of that
team, so to speak?
A: Right. Q: Would it be fair to say that, you know,
that you might be leaning one way or the other
just as we sit here without knowing anything
else about it, not hearing anything, but that
you might be leaning one way or the other in
the case?
A: Well, I think when he called out the list
of potential witnesses, and told - - given the
opportunity to - - names of persons who I'm
familiar with, such as Kenny Lee, Sergeant
Jaggers, so forth, I think that persons I
dealt with in law enforcement, I worked beside
- - . . . I think if they're on the stand
that I would believe what they're saying,
their testimony, based on my experience with
those particular officers on the list.
* * *
Q: It would be difficult for you to set aside
what you know about those officers already and
base your verdict just on what you heard here,
wouldn't you agree with me on that?
A: It would be difficult, but, again, having
my first time, I'm more than willing to do my
best and try to be objective.
Q: Sure. And I know you would try to be fair.
A: Right.
Q: But would you agree with me that it would
be difficult for you to view these peoples'
testimony through the same lens that you would
view people you don't know - -
A: I would agree that it probably would be
difficult for any law enforcement officer in
my position to come up here and do that, so it
would put me in the same boat with them, yes.
Q: You feel like that might substantially
impair your ability to be fair and impartial
during this trial?
A: I stated before that I felt that it would
be a problem, but, again, I'm willing to give
it my best shot and listen to all testimony. Q: Well, let me back up again and ask you
again, or maybe a little different way, and I
know you're trying to be fair. I know you
want to be fair. You understand why I'm
concerned?
A: Oh, absolutely.
Q: And you understand that try as you might,
that if it turned out you weren't able to view
it impartially, it's really too late at that
point?
A: Uh-huh.
Q: Do you feel like the fact that you already
know some of these officers, the fact that you
have indicated you don't think you could view
their testimony quite the same as you could
people you don't know - -
A: I stated that I would believe them.
Q: Sure. Sure. And I didn't phrase it that
way. I was trying to be a little more
delicate. In fact you believe them, without
hearing anything.
A: Right.
In State v. Lee, the North Carolina Supreme Court held that
the trial court abused its discretion in failing to excuse a
prospective juror for cause who had been married to a police
officer for eleven years, had been on friendly terms and socialized
with officers who worked with her husband, and who initially stated
that she would tend to lend more credibility to the testimony of
police officers than to the testimony of strangers. 292 N.C. 617,
234 S.E.2d 574. In Lee, the following exchanges occurred between
defense counsel and the prospective juror and between the trial
judge and the prospective juror:
Q. I ask you, Mrs. Norvell, since you know Mr.
Moore and Tom Smith and your husband is on theWilson Police Department, if they should
testify in this case, would you tend to put
more weight on what they said about the case
than some witness you had never seen before?
A. I don't think so.
Q. But, you are not sure about that?
A. No, sir.
Q. It is possible that you might believe what
they said more than somebody you didn't know.
A. I would have a tendency to.
Mr. Daughtridge: If the Court please, we would
challenge her for cause.
Court: Let me ask you one or two things
myself. I don't think anybody can make a
positive statement as to who they would
believe until they heard what they had to say.
Do you have some genuine concern in your own
mind that you might be swayed because of your
husband's employment?
A. No, sir.
Court: Do you feel you could be fair and
impartial and give to the defendant's
testimony or that of his witnesses the same
weight you would give to somebody else?
A. Yes, sir.
Court: I don't think you have established
enough.
Q. But, I did understand you to say that
knowing Mr. Moore and Mr. Smith, you might
tend to believe them more than somebody you
don't know at all?
Objection by Mr. Brown.
Overruled.
A. It's hard for me to say.
* * * Q. I asked you do you feel that there is a
genuine possibility by reason of your
knowledge of Mr. Moore and Mr. Smith, that you
might believe their testimony in this case
more so than some witness who you had never
seen before?
A. I don't think there's a genuine
possibility.
Q. Well, is there a possibility, Mrs. Norvell?
A. There might be.
Id. at 576-77, 234 S.E.2d at 619-21.
In holding that the trial court erred, the Court noted that
although a juror's close relationship with a police officer,
standing alone, is not grounds for a challenge for cause, because
juror Norvell was a police officer's wife and had been friendly
with members of the police force, she was subject to strong
influences which ran counter to defendant's right to a trial by an
impartial jury. Id. at 579, 234 S.E.2d at 625. The Court further
noted that Norvell initially stated that she would have a tendency
to lend more credibility to the testimony of the police officers
than to a stranger, and that she only stated that she could be
impartial in response to a direct question by the trial judge. Id.
Here, McFarland stated that he felt like he was part of the law
enforcement team and repeatedly indicated that he would believe law
enforcement officers based on his prior experiences with the
officers and his feelings of loyalty to the law enforcement team.
Although McFarland stated that he would do his best, he never
indicated that he actually could be impartial. The State argues
that our appellate courts have upheld the trial court's refusal toexcuse jurors who stated that they would lend more credence to
testimony of law enforcement officers. State v. McKinnon, 328 N.C.
668, 675-78, 403 S.E.2d 474, 478-79 (1991); State v. Lynch, 300
N.C. 534, 548, 268 S.E.2d 161, 169 (1980). However, in these cases
there was no significant relationship between the prospective
jurors and law enforcement, and more importantly, in each of these
cases the prospective juror affirmed his or her ability to remain
impartial. McKinnon at 675-78, 403 S.E.2d at 478-79, Lynch at 548,
268 S.E.2d at 169. McFarland's stated loyalty to the law
enforcement team of which he had been a part for eleven years, his
repeated statements that he would believe the officers' testimony
before hearing it, and his failure to state that he could remain
impartial lead me to conclude that under the particular
circumstances of this case, prospective juror McFarland could not
qualify as a disinterested and impartial juror. Lee, 292 N.C. at
625, 234 S.E.2d at 579. Thus, I would hold that the trial court
abused its discretion in refusing to grant defendant's challenge
for cause as to McFarland and that defendant is entitled to a new
trial.
Because I would grant defendant a new trial, I would not
address defendant's argument regarding prospective juror Byrd or
his other assignment of error.
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