Filed January 16, 2007.
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.
Appeal by defendant from judgment entered 5 May 2005 by Judge Steve A. Balog in Harnett County Superior Court. Heard in the Court of Appeals 20 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Marshall Dayan for defendant-appellant.
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 the victim, 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.
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 conviction where 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.
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 six peremptory 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 occurred with 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.
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.
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.
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?
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?
[DEFENDANT'S COUNSEL]: Your father came and confronted Herbert about it?
[DEFENDANT'S COUNSEL]: Pulled a gun on him?
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 not preserved by timely objection at the trial court and will thus not be considered on appeal.
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.")
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.