Appeal by defendant from judgment entered 28 September 2005 by
Judge L. Todd Burke in Forsyth County Superior Court. Heard in the
Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
Jon W. Myers for defendant-appellant.
Defendant Tony Santinia Farley appeals from his conviction for
felony possession of cocaine and subsequent guilty plea as to
having attained habitual felon status. On appeal, defendant first
argues that the trial court erred by failing to allow defense
counsel to question a juror on her family's relationship with a
police officer, an issue that arose after the jury was empaneled.
Based upon our review of the record, we hold defendant has failed
to demonstrate an abuse of discretion. As for defendant's second
contention on appeal _ that the trial court erred in prohibiting
him from questioning a forensic drug chemist with the SBI about
alleged problems within the DNA Section of the SBI laboratory _
defendant failed to properly preserve this issue for appellatereview.
The State's evidence tended to show the following facts. At
approximately 3:00 p.m. on 16 July 2004, several vice and narcotics
officers with the Winston-Salem Police Department executed a search
warrant at a house located on East 24th Street. As the officers
approached the house, they observed defendant and three other
individuals on the front porch. Upon seeing the officers, one
individual jumped over the porch railing and others either dropped
or threw items from the porch.
Officers found a small bag containing a white rock-like
substance "lying on the front porch next to [defendant]" and
another small bag nearby. Based on preliminary field tests
indicating the substance in the bags was cocaine, the officers
arrested defendant for drug possession. Subsequent SBI analysis of
both bags confirmed they contained crack cocaine. While in police
custody, defendant provided a written statement admitting to
possessing at least some of the seized drugs.
On 2 May 2005, defendant was indicted for possession with
intent to sell and deliver cocaine and conspiracy to traffic in
cocaine. On the first day of trial, following empanelment of the
jury, the trial judge notified counsel that Juror Eight had
previously failed to disclose that she was friends with a police
officer. When the jury arrived in the courtroom, the trial judge
questioned Juror Eight about that friendship. She explained that
a police officer had "befriended" her father about three yearsearlier and would come into their restaurant. The judge then asked
her whether knowing that police officer would prevent her from
"being a fair and impartial juror" and whether she would be "able
to weigh the testimony of law enforcement persons and laypersons
just the same." Juror Eight responded that she could be fair and
impartial, and she would weigh police and lay testimony equally.
Although the trial judge summarily denied defense counsel's
apparent effort to ask Juror Eight additional questions, the judge
offered defense counsel the opportunity to challenge Juror Eight
for cause. Defense counsel declined to do so, and the case
proceeded to trial.
The jury returned a verdict of guilty on the charge of felony
possession of cocaine, and defendant later pled guilty to having
attained the status of a habitual felon.
(See footnote 1)
The trial court imposed
a sentence in the mitigated range of 60 to 81 months imprisonment.
Defendant timely appealed to this Court.
Defendant first contends that the trial court erred with
respect to Juror Eight. There is no statutory provision in North
Carolina dealing with challenges to a juror after the jury has been
empaneled. State v. Richardson
, 341 N.C. 658, 672, 462 S.E.2d 492,
502 (1995). Nevertheless, trial courts have the discretion to
supervise the jury after jury selection and may excuse a juror andsubstitute an alternate when necessary. State v. Lovin
, 339 N.C.
695, 715-16, 454 S.E.2d 229, 241 (1995). See also
N.C. Gen. Stat.
§ 15A-1215(a) (2005) (allowing trial court to replace serving juror
with an alternate should the serving juror become disqualified or
When a judge learns, after the jury has been empaneled, of
information relating to the ability of a juror to be fair and
impartial, "[i]t is within the discretion of the trial judge as to
what inquiry to make." State v. Willis
, 332 N.C. 151, 173, 420
S.E.2d 158, 168 (1992). A trial court's ruling as to whether to
discharge a juror following that inquiry is also reviewed for an
abuse of discretion, with this Court reversing only if the ruling
was so arbitrary that it could not have been the result of a
reasoned decision. Richardson
, 341 N.C. at 673, 462 S.E.2d at 502.
"The test is whether the challenged juror is 'unable to render a
fair and impartial verdict.'" Id.
(quoting N.C. Gen. Stat. §
As an initial matter, we note that defendant was provided with
the opportunity to challenge Juror Eight for cause, but declined to
do so. Defendant, therefore, failed to properly preserve this
issue for appellate review. See State v. Bates
, 172 N.C. App. 27,
34, 616 S.E.2d 280, 285 (2005) ("Defendant failed to challenge
Juror Three upon her disclosure at trial; therefore, he has not
preserved this assignment of error for review."), cert. granted,
disc. review denied, and remanded on other grounds
, 360 N.C. 537,
634 S.E.2d 218 (2006). Nevertheless, even assuming, arguendo
, that defendant's
failure to challenge Juror Eight did not waive review of this
issue, we find nothing in the record or the transcript to indicate
that the trial court abused its discretion in precluding further
questioning by counsel. The trial court's inquiries revealed the
basis for the juror's friendship with a police officer and
suggested that the juror's familiarity with the officer would not
affect her ability to be fair and impartial. Given the
circumstances of this case, we cannot conclude the trial court
abused its discretion by failing to allow counsel to engage in
further inquiry. See, e.g.
, 341 N.C. at 673-74, 462
S.E.2d at 501-02 (concluding trial court did not abuse its
discretion when, after making inquiries similar to instant case,
trial court denied defendant's challenge for cause alleging that
prosecutor had dismissed minor traffic citation against juror in
defendant's trial); Bates
, 172 N.C. App. at 34, 616 S.E.2d at 286
(concluding trial court did not abuse its discretion when, after
also making similar inquiries, trial court failed to discharge
juror who "stated she believed she could continue to be fair and
impartial to both parties"). This assignment of error is,
Defendant next argues that the trial court erred by granting
the State's motion in limine and preventing defendant from
questioning Special Agent Carroll Brazemore, a forensic drug
chemist with the SBI, about alleged problems within the DNA Sectionof the SBI laboratory. An objection to an order denying or
allowing a motion in limine is insufficient to preserve the issue
for appellate review. State v. Dorton
, 172 N.C. App. 759, 768, 617
S.E.2d 97, 103, disc. review denied
, 360 N.C. 69, 623 S.E.2d 775
(2005). Rather, in order to preserve the issue when a motion in
limine has been allowed, the appellant must attempt to offer the
excluded evidence during the course of the trial. State v.
, 145 N.C. App. 447, 452, 551 S.E.2d 196, 199 (2001). As
defendant did not attempt to offer the excluded evidence at trial,
he has failed to preserve this issue for appellate review.
Moreover, although defendant has assigned plain error to the
trial court's ruling on the motion, defendant has not argued plain
error in his brief. "[B]ecause Defendant has not specifically and
distinctly addressed the issue of plain error in his brief to this
Court, we will not review whether the alleged error rises to the
level of plain error." State v. Alston
, 131 N.C. App. 514, 518,
508 S.E.2d 315, 318 (1998). See also
N.C.R. App. P. 10(c)(4).
This assignment of error is, therefore, overruled.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).