Opinion
No. COA11–1539.
2012-07-17
STATE of North Carolina v. Lillian Caldwell KINCAID.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Winifred H. Dillon for defendant appellant.
Appeal by defendant from judgments entered 5 August 2011 by Judge Bradley B. Letts in Haywood County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Winifred H. Dillon for defendant appellant.
McCULLOUGH, Judge.
Lillian Caldwell Kincaid (“defendant”) appeals from the judgments entered after a jury found her guilty of three drug trafficking offenses and one count each of sale or delivery and possession with intent to sell or deliver a Schedule III controlled substance. Defendant argues that the trial court abused its discretion by failing to excuse a juror who expressed concern about his ability to be impartial. We find no error.
I. Background
During jury selection, one potential juror indicated that family history with drugs and alcohol could affect his ability to be fair to defendant. The juror ultimately stated that he believed he could set aside his feelings. Defendant did not challenge the juror for cause, and only challenged two other prospective jurors before the jury and alternates were empaneled. The jury found defendant guilty and the trial court sentenced defendant to three concurrent terms of 90 to 117 months' imprisonment for the trafficking convictions, and consolidated the remaining two convictions into one consecutive term of 10 to 12 months' imprisonment. Defendant appeals.
II. Analysis
Defendant's sole argument on appeal is that the trial court abused its discretion by failing to excuse the juror who initially stated he could have difficulty being impartial because defendant was accused of drug offenses. We disagree.
First, we hold that defendant failed to preserve the constitutional dimensions of this issue for appellate review. “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2011). “[C]onstitutional issues not raised at trial will not ordinarily be considered for the first time on appeal.” State v. Neal, 196 N.C.App. 100, 106, 674 S.E.2d 713, 718 (2009). A defendant must challenge an allegedly biased juror for cause in order to preserve for appellate review the issue of whether that juror's service violated his right to an impartial jury. Id.
In this case, defendant did not challenge the juror for cause. In fact, after examining the juror during voir dire, defendant twice passed on a jury panel that included the juror he now argues should have been excused. Accordingly, we hold that defendant failed to preserve the constitutional aspects of this issue for appellate review.
Moreover, we disagree with defendant's contention that the trial court abused its discretion and violated N.C. Gen.Stat. § 15A–1211(d) (2011), by failing to strike the juror.
The General Statutes allow a trial judge to dismiss a juror for cause “without challenge by any party if he determines that grounds for challenge for cause are present.” N.C. Gen.Stat. § 15A–1211(d). The grounds for a challenge for cause include when a juror “is unable to render a fair and impartial verdict.” N.C. Gen.Stat. § 15A–1212(9) (2011). “We review a trial court's ruling on a challenge for cause for an abuse of discretion.” State v. Lasiter, 361 N.C. 299, 301, 643 S.E.2d 909, 911 (2007). “A trial court abuses its discretion if its determination is ‘manifestly unsupported by reason’ and is ‘so arbitrary that it could not have been the result of a reasoned decision.’ “ Id. at 301–02, 643 S .E.2d at 911 (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
In the instant case, the juror ultimately stated that he could be fair to defendant in response to questions by both defendant's trial counsel and the prosecutor. Given the trial court's opportunity to observe the juror's demeanor and its “distinct advantage” over an appellate court in evaluating a challenge for cause, we decline to hold that the trial court abused its discretion by not removing the juror. Id. at 302,643 S.E.2d at 911. Accordingly, we find no error.
III. Conclusion
Defendant did not object to the empaneling of the juror at trial and thus waived the issue on appeal. Nonetheless, the trial court did not abuse its discretion in not dismissing the juror in question.
No error. Judges HUNTER (ROBERT C.) and ELMORE concur.
Report per Rule 30(e).