STATE OF NORTH CAROLINA v. KEVIN SALVADOR GOLPHIN; STATE OF NORTH CAROLINA v. TILMON CHARLES GOLPHIN, JR., 352 N.C. 364

WAINWRIGHT, Justice. On 1 December 1997, indictments were handed down charging defendants Kevin Salvador Golphin (Kevin) and Tilmon Charles Golphin, Jr. (Tilmon), each with two counts of first-degree murder, two counts of robbery with a dangerous weapon, one count of assault with a deadly weapon with intent to kill, one count of discharging a firearm into occupied property, and one count of possession of a stolen vehicle. Defendants, who are brothers, were tried jointly in a capital proceeding at the 23 February 1998 Criminal Session of Superior Court, Cumberland County.

Defendants were tried before a jury drawn from a special venire selected in Johnston County. The jury found defendants guilty on all charges. After a capital sentencing proceeding, the jury recommended a sentence of death in each murder for both defendants. On 13 May 1998, the trial court entered judgments against defendants in accordance with the jury’s recommendations.

In addition, the trial court sentenced each defendant to the following consecutive terms of imprisonment: (1) for possession of a stolen vehicle, a minimum of six months and a maximum of eight months; (2) for assault with a deadly weapon with intent to kill, a minimum of thirty-one months and a maximum of forty-seven months; (3) for discharging a firearm into occupied property, a minimum of thirty-one months and a maximum of forty-seven months; and (4) for each count of robbery with a dangerous weapon, a minimum of eighty months and a maximum of one hundred five months.

Defendants appeal to this Court as of right from the judgments imposing sentences of death. On 19 July 1999, this Court allowed defendants’ motions to bypass the Court of Appeals on the other convictions. The State presented evidence which tended to show that on 23 September 1997, Kevin, who was seventeen, and Tilmon, who was nineteen, were living with their grandparents in Greeleyville, South Carolina. That morning, defendants’ cousin, Demetric Mack, drove them to Kingstree, South Carolina, leaving them in a parking lot in the downtown area.

During the ride into town, Mack noticed that Kevin was carrying a rifle that he had covered with a white towel and that TLlmon was carrying a book bag. At about 10:00 a.m., defendants entered Financial Lenders, a finance company in downtown Kingstree. Two employees, Ava Rogers and Sandra Gaymon, were working that morning, and a customer, Earletha Mouzon, was also in the building. Gaymon and Mouzon were discussing business in a small office near the front of the building and saw defendants enter and walk toward the office where Rogers was working. Mouzon saw that one defendant was carrying a rifle.

She immediately left the building and called the police. The taller defendant, later identified as Kevin, pointed the rifle at Rogers and demanded the keys to her car. She gave the keys to him. Defendants then ordered Rogers and Gaymon to go to the back of the building. Defendants then told the two women to go into the bathroom. The taller defendant told the women to stand with their backs toward defendants. While their backs were turned, both women heard clicking sounds made by the rifle.

Defendants then left the bathroom, and the two women heard them moving things around and placing objects in front of the door. The women stayed in the bathroom for approximately five minutes. While they were in the bathroom, they heard a vehicle start and leave the parking lot behind the building. The women then left the bathroom and called 911. Rogers found that her purse had been opened and that her wallet had been stolen. She also found that her car, a dark green 1996 Toyota Camry with South Carolina license plate number CEL-269, had been stolen.

Lieutenant Michael Kirby of the Kingstree Police Department investigated the robbery at Financial Lenders. He arrived at the business shortly after the robbery and obtained a description of the suspects and the stolen vehicle. He then issued a “BOLO” advisory (“Be On the Look Out” for certain suspects or vehicles) to all law enforcement agencies in the area which contained the description of the suspects and the stolen vehicle. Lt. Kirby also entered the description of the stolen vehicle into the National Crime Information Center (NCIC) computer network. Later that morning, Lt.

Kirby learned that the suspects were Kevin and Tilmon Golphin. He then went to their grandparents’ home but was unable to locate the suspects. On that same day, Bobby Owens was on duty as a shift supervisor at the State Highway Patrol Communications Center in Elizabethtown, North Carolina. The Elizabethtown center provided communications support to state troopers in a region comprised of Cumberland, Harnett, Robeson, Onslow, Duplin, Pender, New Hanover, Brunswick, Bladen, and Columbus Counties. At approximately 12:25 p.m., Owens was communicating with troopers in Cumberland County. Trooper Lloyd E.

Lowry of the North Carolina State Highway Patrol was on duty in Cumberland County. He was patrolling the northbound lanes on Interstate 95 (1-95). At 12:25 p.m., Owens received a radio call from Trooper Lowry asking for a check on South Carolina registration CEL-269. Owens performed the check on the NCIC computer, and the check indicated that the vehicle with that registration had been stolen in South Carolina. At 12:26 p.m., Owens asked Trooper Lowry whether he had the vehicle stopped, and Trooper Lowry responded that he did.

Owens then advised Trooper Lowry, using code “signal three,” to turn off the speaker inside his vehicle so that anyone in the vehicle could not hear the communications and told Trooper Lowry that the vehicle was stolen. Trooper Lowry asked Owens to send him a backup unit. Owens requested Trooper Lowry’s location, and Trooper Lowry answered that he was near the intersection of 1-95 and N.C. Highway 24. At 12:27 p.m., Owens informed Trooper Lowry that there were no highway patrol units available to respond and that he would contact the Cumberland County Sheriff’s Department to request assistance.

Owens called the sheriff’s department, and the dispatcher acknowledged the request and told Owens that a car would be dispatched to the scene. At 12:29:12 p.m., Owens called Trooper Lowry and informed him that a sheriff’s department unit was en route to assist. Trooper Lowry informed Owens that a subject was in his vehicle and that he was awaiting the backup unit. After this transmission, Owens called the highway patrol office in Fayetteville and informed Sergeant Bill Martin of Trooper Lowry’s situation. Sgt.

Martin advised Owens that he would be en route to assist Trooper Lowry and asked Owens to attempt to contact Trooper Lowry again. At 12:32 p.m., Owens called Trooper Lowry to inform him that Sgt. Martin was en route to his location and to ask him to verify the description of the vehicle given by the NCIC computer as a dark green Toyota. At 12:32:22 p.m., Trooper Lowry confirmed the description of the vehicle. Owens did not receive any further communication from Trooper Lowry. On that same day, Susan Gillis was working as a dispatcher with the Cumberland County Sheriffs Department.

At 12:28 p.m., she received a telephone call from Owens requesting assistance for Trooper Lowry. Gillis passed the request for assistance to Linda Zema, another dispatcher, who asked for available sheriffs department units in the area of 1-95 and N.C. Highway 24. Deputy David Hathcock responded to the call, and the dispatchers determined that he was the closest unit to the area where Trooper Lowry had requested assistance. Deputy Hathcock was sent to the scene at 12:30 p.m. At 12:33 p.m., Deputy Hathcock reported that he would be reaching the scene in approximately one minute.

No further transmissions were received from Deputy Hathcock despite repeated attempts by the dispatchers to contact him. At 12:38 p.m., Deputy Kelly Curtis of the Cumberland County Sheriffs Department advised the dispatchers that he had arrived at the scene. Seconds later, Deputy Curtis informed dispatchers, “Officers down. Officers down.” He requested immediate assistance. At 12:39 p.m., Deputy Curtis called and advised the dispatchers that two black male suspects were last seen headed northbound on 1-95 driving a dark green Toyota.

Shortly thereafter, Deputy Curtis informed the dispatchers that both officers appeared to be dead. The State presented a number of witnesses who testified regarding the events that occurred along the side of 1-95 near its intersection with N.C. Highway 24 at mile marker 52 in Cumberland County. James Patrick Rogers was driving along the exit ramp which led from westbound Highway 24 onto the service road which led to the northbound lanes of 1-95.

As Rogers came down the ramp, he saw that a highway patrol vehicle and a sheriffs department vehicle were stopped in the grassy area between the service road and the northbound lanes of 1-95. The two police vehicles were parked parallel to one another on opposite sides of the grassy area facing northbound. A dark — colored car was pulled over in front of the highway patrol vehicle. Rogers testified that a black male was standing at the rear of the highway patrol vehicle with his hands on the trunk. A state trooper was standing behind him.

A second black male was sitting in the front passenger seat of the dark-colored car. A sheriffs deputy was standing near the open door of that vehicle and appeared to be talking to the male seated in the car. Walter Pearce was traveling on 1-95 north and saw the flashing blue lights of the highway patrol vehicle. As he got close to the vehicíes, he saw a state trooper and a black male with braided hair scuffling on the ground at the back of the patrol car.

Pearce saw a sheriff’s deputy standing between the police vehicles and a second black male sitting in the front seat of a Toyota Camry that was pulled over in front of the highway patrol vehicle. Pearce continued northbound, and a few minutes later, he saw the same two black males pass him in the Camry. A highway patrol vehicle passed him shortly afterwards, and Pearce saw both the Camry and the highway patrol vehicle leave 1-95 at exit 71. Marla McDowell was traveling on 1-95 north and saw the police vehicles on the side of the road with a Toyota Camry pulled over in front of them.

She saw an officer and a black male struggling on the ground behind the highway patrol vehicle, and another officer and a second black male struggling in the area between the police vehicles and the Camry. She also saw the second black male pull away from the officer and run back toward the Camry. Janice Hocutt and her niece were traveling south on 1-95 as they approached the scene where two police vehicles and a bluish-green car were pulled over. Hocutt saw a black male, who was wearing an “orange-brownish” hooded sweatshirt, facing south between the green car and the police vehicles.

An officer was standing in front of him facing north. Hocutt saw the black male moving toward the officer, and then she saw something brown being sprayed by the officer. The officer began backing away from the black male and then fell. She then saw the black male kick and punch the officer on the ground. She never saw the officer get up. Hocutt identified Tilmon as the black male she saw kicking and punching the officer on the ground. Wilbur Brannan was traveling northbound on 1-95 and passed the scene.

He saw the highway patrol vehicle with its blue lights flashing, and as he passed it, he saw a state trooper lying facedown on the ground near the back of his vehicle. A black male was bending over the trooper. Brannan saw the black male get up and turn around toward a dark green Toyota Camry parked in front of the highway patrol vehicle. Brannan continued driving northbound and saw the same Toyota Camry with two black occupants pass him a few miles further on 1-95.

Dana Blecke, a pharmacist and former emergency medical technician, was traveling south on 1-95 and saw the blue lights flashing from the highway patrol vehicle. As she passed by, she saw someone lying in the grass on the side of the road in front of the highway patrol vehicle. She also saw a black person running toward the driver’s side of a car that was parked in front of the highway patrol vehicle. Blecke slowed down and turned around through the median of the interstate and drove back toward the police vehicles. The car parked in front of the police vehicles was now gone.

She parked her vehicle and went to the police officer lying in the grass. She could feel no pulse or respirations. She then walked to the state trooper who was lying facedown near the back of his vehicle. By this time, another state trooper who had arrived at the scene helped her roll the trooper’s body. They found no pulse or other signs of life. Ronald Waters was driving north on 1-95 as he came over a hill and saw the flashing blue lights of the highway patrol vehicle.

As he approached the scene, he saw two black males, one taller than the other, moving around in the area between the two police vehicles and the car parked in front of the highway patrol vehicle. He saw an officer wearing a gray shirt and dark pants lying facedown in the grass near the back of the highway patrol vehicle. As he drove almost parallel with the highway patrol vehicle in the right lane of 1-95, he saw that one of the black males had what appeared to be an “automatic” handgun in his hand. At that time, Waters, who had slowed down, accelerated quickly past the scene.

He pulled off approximately two hundred yards further up the road, got out of his vehicle, and called 911 on his cellular phone. He looked back toward the scene and saw the taller black male shoot one of the officers four or five times. The two black males then got into the Toyota Camry and drove north on 1-95. Waters saw that other motorists had stopped, and he decided to follow the Camry. Waters remained on his cellular phone talking to the 911 operator while following the Camry. He followed the Camry until it left 1-95 at exit 55, Murphy Road. Waters saw the vehicle turn off onto a dirt road near the exit.

Waters stopped his car and watched the subjects. A few minutes later, the subjects got back in the Camry and drove over the bridge to the other side of the interstate. Waters noted that the license plate had been removed from the Camry. Waters waited along the side of the ramp that led back to 1-95 north. He soon noticed the Camry come back over the top of the bridge and turn onto the ramp beside him. As the Camry pulled alongside Waters’ vehicle, Waters saw the barrel of a rifle being pointed out the window toward him. He leaned over in his seat and accelerated quickly.

He heard three shots hit his vehicle, and subsequently, discovered the vehicle was disabled. Waters heard the other vehicle’s engine revving higher and thought it had left, so he raised his head to look out the window. He saw the Canary drawing almost parallel with his window just four to six feet away. Waters testified that the black male holding the rifle smiled at him and then pulled the trigger. The rifle clicked as if it were jammed or out of ammunition. The black male pulled the rifle back into the Camry, which sped north on 1-95.

Waters identified the individual who pointed the rifle at him as Tilmon, and he identified the rifle pointed at him as the same Russian-made SKS 7.62-mil-limeter rifle seen by Demetric Mack, defendants’ cousin, in his car that morning. Trooper Kenneth Morgan heard a radio transmission that a trooper was down and proceeded south on 1-95 from exit 72 in Harnett County. As he drove south, he obtained a description of the Toyota Camry and its occupants. At exit 65, just inside the Cumberland County line, Trooper Morgan waited on an exit ramp facing south.

Just after 12:52 p.m., Trooper Morgan observed a green Toyota Camry driving north on 1-95. Trooper Morgan drove down the northbound exit ramp to attempt to overtake the Camry. He noted that there was no license plate on the vehicle and that it swerved quickly from the left lane over to the emergency lane on the far right and began accelerating rapidly. Trooper Morgan pursued the vehicle at speeds up to 120 miles per hour as the Camry veered from lane to lane heading north. At exit 71, the Camry drove up the ramp but failed to make the turn.

It rolled at least once down an embankment and came to rest on its wheels. Trooper Morgan saw the two suspects run from the vehicle toward a group of tractor-trailers that were parked near a tire repair shop. Police officers from the Harnett County Sheriff’s Department, the Cumberland County Sheriff’s Department, the Dunn Police Department, and the State Highway Patrol searched the area and apprehended Tilmon and Kevin.

A Glock 9-millimeter handgun, later identified as Deputy Hathcock’s weapon, was found beside Tilmon as he was arrested, and a Beretta .40-caliber handgun, identified as Trooper Lowry’s weapon, was found under the steps of a home near where Kevin was captured. Deputy Hathcock’s Glock handgun was fully loaded and did not exhibit any signs of being fired. Trooper Lowry’s Beretta handgun was found in a cocked position, ready to fire. Only five cartridges remained in the weapon, indicating that if the weapon had been fully loaded when taken, six cartridges were missing.

The SKS rifle was recovered from the wrecked Camry. The top cartridge in the magazine had misfed, causing the rifle to jam. Tilmon and Kevin were transported by the State Highway Patrol to the Cumberland County Sheriffs Department where they were questioned. At the sheriffs department, Kevin waived his juvenile rights and gave a statement to Special Agent Jay Tilley of the State Bureau of Investigation (SBI). Agent Tilley and Detective Ray Wood of the Cumberland County Sheriffs Department interviewed Kevin.

Kevin admitted that he and Tilmon stole the Camry in Kingstree that morning and headed north on 1-95, intending to drive to Richmond, Virginia. A state trooper pulled them over in North Carolina. The trooper asked Kevin for his license, and Kevin gave him Tilmon’s South Carolina license. The trooper told Kevin he was stopped for not wearing a seat belt and asked him to get out of the Camry and sit in the patrol vehicle. Kevin saw the trooper typing on his computer and talking into his telephone. Kevin heard the trooper ask for another car to come and assist him.

Kevin stated that he saw a different kind of police car drive up beside the trooper’s car and that a police officer wearing a different uniform got out and came over to the trooper’s car. The trooper got out of the car and told Kevin to “sit tight.” The trooper then came around to the passenger side where Kevin was sitting, pulled out his pistol, opened the door, and ordered Kevin out of the car. Kevin said that he got out and put his hands on the hood of the car. The trooper told the other police officer to “get the guy” in the Camry.

Kevin asked why he was being arrested and was told to “shut up.” The trooper pushed Kevin’s head down and put him in an arm lock. Kevin stated that he resisted and tried to get free. The trooper pushed Kevin to the ground. The other officer brought Tilmon back toward the trooper’s car. The trooper told the other officer to spray Kevin with pepper spray. The other officer sprayed Kevin, and Kevin began screaming and kicking at the other officer. At that point, Kevin heard gunshots. His eyes began to clear, and he saw the two police officers on the ground.

The trooper tried to grab Kevin, but he shook the trooper away. Kevin then took the trooper’s pistol. At first, Kevin did not admit shooting the trooper’s pistol and claimed not to have shot any gun that day. After being told that .40-caliber shell casings had been found at the scene and that gunshot residue tests had been performed on his hands, Kevin admitted firing the trooper’s handgun. He said he did not know how many times he shot the gun, but it was pointed at the trooper when he did so. After he fired the gun, Kevin got into the passenger seat of the Camry, and he and Tilmon drove north on 1-95.

He and Tilmon left the interstate at the next exit and stopped on top of a bridge where they switched places. Kevin continued driving north on 1-95, and they were chased by several police cars. Kevin said that he tried to get away, but wrecked the car when he attempted to exit the interstate. He and Tilmon ran from the car, but both were caught. Later in the interview, Kevin admitted that Tilmon had shot at a Jeep that was following them on 1-95 and that had stopped at the same exit where they switched drivers. Kevin said that Tilmon told him he was trying to shoot at the tires of the vehicle.

Kevin also admitted that Tilmon never shot the trooper’s handgun and that Tilmon never had the trooper’s handgun in his possession. Tilmon was interviewed at the sheriff’s department by Special Agent Neil Godfrey of the SBI and Detective Mike Casey of the Cumberland County Sheriff’s Department. Agent Godfrey advised Tilmon of his rights, and Tilmon asked to speak with an attorney. Tilmon was informed that investigators could no longer talk with him because he had requested an attorney, but they asked him several biographical questions.

After he answered the questions, Tilmon stated he wanted to tell the investigators what had happened. Tilmon’s description of the events was very similar to Kevin’s. When the Camry was pulled over by the state trooper, the trooper told them he had pulled them over because Kevin was not wearing his seat belt. Kevin and the trooper went back to the trooper’s car while Tilmon waited in the Camry. Eventually, he saw another police car pull up beside them. He saw the other officer get out and walk toward the trooper’s car.

He then saw Kevin and the trooper at the back of the trooper’s vehicle, and Kevin was pushed up against the vehicle. Tilmon got out of the Camry and walked back toward them. The other officer came toward him, pushed him up against the Camry, and patted him down. The officer then walked with him back toward the trooper’s car where Kevin and the trooper were on the ground struggling. Tilmon said he heard Kevin say that he could not breathe. The trooper then told the other officer to spray Kevin with pepper spray. The officer sprayed Kevin and then turned to spray Tilmon.

Tilmon knocked the canister from the officer’s hand and ran back toward the Camry. He got the rifle from the backseat of the car. Tilmon said he pointed the rifle directly at the other officer who was about nine to twelve feet away; looked him right in the eyes; and shot him. Tilmon said the other officer appeared to be dead. He then walked over to where the trooper was on top of Kevin, aimed at the trooper’s side, and shot him. Tilmon said he aimed at the trooper’s side because he did not want to kill him.

Tilmon then ran over to the other officer, took the handgun from his holster, and went to the driver’s side of the Camry. He and Kevin drove north on 1-95 for a few miles, then exited and switched places. Tilmon stated he shot at the tires of a vehicle that had been following them. He and Kevin then continued driving north on 1-95 and were captured a short while later after they were chased by other police cars. Tilmon originally stated that he had not fired a gun that day but later admitted that he “probably had” shot a gun but could not remember doing so.

Subsequently, Tilmon was able to recount how the rifle “jumped” as he shot the trooper. Tilmon also made no mention of the use of pepper spray by either officer but later remembered that the trooper told the other officer to spray Kevin. Additionally, Tilmon said nothing about his encounter with Waters during the first portion of his interview, but later described shooting at the tires of the Jeep in detail. Autopsies were performed on the bodies of Trooper Lowry and Deputy Hathcock.

Three .40-caliber bullets that were fired from Trooper Lowry’s handgun were recovered from his body along with a 7.62-millimeter bullet fired from the SKS rifle. An additional 7.62-millimeter bullet was found inside the body bag used to transport Trooper Lowry’s body. Trooper Lowry was shot at least seven and possibly eight times, with several gunshots coming from close range. Trooper Lowry suffered potentially fatal wounds from both weapons. One .40-caliber bullet fired from Trooper Lowry’s handgun and two 7.62-millimeter bullets fired from the SKS rifle were recovered from Deputy Hathcock’s body.

Deputy Hathcock suffered four gunshot wounds to his chest and abdomen and one gunshot wound to his wrist. Any of the four wounds to his chest and abdomen would have been fatal. Those wounds were made by both .40-caliber and 7.62-millimeter bullets.

PRETRIAL ISSUES By assignments of error, both Kevin and Tilmon argue the trial court violated their federal and state constitutional rights to be present at every stage of their capital trial when it ruled the jury would be drawn from a special venire from Johnston County Specifically, defendants claim they should have been present during out-of-court meetings relating to change of venue or a special venire.

Defendants argue the right to be present includes the right to be present during the meetings concerning venue because the discussions were substantially related to the fullness of their rights to defend against the charges. See United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 490 (1985). Defendants further argue that because the meetings involved venue for jury selection and trial, they were particularly critical to defendants, and not merely administrative as in State v. Chapman, 342 N.C. 330, 338-39, 464 S.E.2d 661, 665-66 (1995), cert. denied, 518 U.S. 1023, 135 L. Ed. 2d 1077 (1996).

We disagree. Initially, we note the Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees all defendants the right to be present at every stage of their trial. See Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 356 (1970). Through the Due Process Clause of the Fourteenth Amendment, this right also applies to the states. See Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926 (1965); State v. Buchanan, 330 N.C. 202, 209, 410 S.E.2d 832, 836 (1991). Similarly, in North Carolina, pursuant to the Confrontation Clause in

Article I,

Section 23 of the North Carolina Constitution, a defendant has a right to be present at every stage of his trial. See State v. Call, 349 N.C. 382, 397, 508 S.E.2d 496, 506 (1998); Chapman, 342 N.C. at 337, 464 S.E.2d at 665; State v. Daniels, 337 N.C. 243, 256, 446 S.E.2d 298, 307 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995); State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987). If the defendant is being tried capitally, this right cannot be waived. See State v. Buckner, 342 N.C. 198, 227, 464 S.E.2d 414, 430 (1995), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47 (1996).

Generally, however, “this right does not arise prior to the commencement of trial.” Call, 349 N.C. at 397, 508 S.E.2d at 506; see also Chapman, 342 N.C. at 338, 464 S.E.2d at 665; State v. Rannels, 333 N.C. 644, 653, 430 S.E.2d 254, 259 (1993). In November 1997, defense counsel for both defendants informed the prosecution that they intended to file change of venue motions from Cumberland County. In meetings between the defense attorneys and the prosecutors to discuss change of venue, defendants were not present, and the meetings were not recorded.

The prosecutors and defense attorneys then met with the presiding judge to discuss possible change of venue sites or special venire locations; defendants were not present at this meeting, and the meeting was not recorded. Subsequently, on 5 January 1998, in the presence of Kevin, Tilmon, and their attorneys, the parties stipulated to a change of venue for purposes of jury selection.

Thereafter, the trial court stated: As to each Defendant, it would be my understanding that each Defendant is agreeing to a special venire for [sic] Johnston County for that Defendant’s trial if the cases are joined or if that Defendant is chosen for the first trial, but that neither Defendant is waiving their right to make a Motion for a Change of Venue if there are separate trials and that particular Defendant’s trial is not the first trial. When the trial court asked both defendants if this was correct, they responded, through their attorneys, in the affirmative.

Pretrial motions were later heard on 16 and 23 February 1998, and jury selection commenced in Johnston County on 26 February 1998. The meetings at issue in this case took place prior to commencement of defendants’ trial. Moreover, defendants were present at the hearing on change of venue at which defendants stipulated to a special venire from a county other than Cumberland; the trial court proposed a special venire from Johnston County; and both defendants agreed, through counsel, to the special venire from Johnston County. Thus, no error, constitutional or otherwise, was committed.

See Buckner, 342 N.C. at 228, 464 S.E.2d at 431 (holding there was no constitutional violation because the pretrial conference took place prior to commencement of the defendant’s trial); Rannels, 333 N.C. at 652, 430 S.E.2d at 258 (holding it was not error to conduct private, unrecorded sidebar conferences with prospective jurors where conferences took place prior to calling the calendar for the session and the administration of the oath to the jurors). These assignments of error are overruled.

In another assignment of error, Kevin argues there was no filed court order changing venue for purposes of jury selection, and this violated his federal and state constitutional rights. However, the question presented in Kevin’s brief relating to this assignment of error concerns whether the trial court erred by not following the statutory mandates in ordering the special venire from Johnston County. In his argument, Kevin does not address the trial court’s failure to file a court order changing venue for that limited purpose. Rule 28(

a) of the North Carolina Rules of Appellate Procedure provides: “Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party’s brief, are deemed abandoned.” N.C. R. App. P. 28(a). Thus, Kevin abandoned this assignment of error. Nevertheless, in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we will address the merits of the question presented in Kevin’s brief. See N.C. R. App. P. 2.

Kevin argues the trial court did not follow the statutory mandates in ordering the special venire from Johnston County, thereby entitling him to a new trial. Specifically, Kevin argues there are only two statutory mechanisms for changing venue — by order of the court pursuant to N.C.G.S. §§ 15A-957 and -958, or by an agreement of the parties pursuant to N.C.G.S. § 15A-133. The trial court followed neither. We disagree. Generally, venue for “trial proceedings in cases within the original jurisdiction of the superior court lies in the county where the charged offense occurred.” N.C.G.S. § 15A-131(c) (1999).

Parties may waive venue or defendants may move for a change of venue pursuant to N.C.G.S. § 15A-957. See N.C.G.S. § 15A-133 (1999). A waiver of venue must be in writing, must be signed by both parties, and must specify the stages of the proceedings affected by the waiver. See id. A defendant may move for a change of venue if the prejudice is so great that he/she cannot obtain a fair and impartial trial; the trial court can then move the proceeding or order a special venire. See N.C.G.S. § 15A-957 (1999).

In addition, the trial court may, upon motion by the defendant or the State, or upon its own motion, “issue an order for a special venire of jurors from another county if in its discretion it determines the action to be necessary to insure a fair trial.” N.C.G.S. § 15A-958 (1999). “These statutory limitations on the power of a court to order a change of venue are preempted by the inherent authority of the superior court to order a change of venue in the interest of justice.” State v.

Chandler, 324 N.C. 172, 183, 376 S.E.2d 728, 735 (1989) (holding the trial court did not abuse its discretion in granting the State’s motion for change of venue, despite the statute’s granting only the defendant a right to move for a change of venue, because the findings supported the trial court’s conclusion and resulting order); see also State v.

Barfield, 298 N.C. 306, 320, 259 S.E.2d 510, 524-25 (1979) (holding the superior court had the inherent power to move the proceedings to a county other than an adjoining county in the judicial district or a county in an adjoining judicial district as provided by the statute), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). Moreover, the trial court’s ruling on a motion to change venue will not be disturbed absent a showing of abuse of discretion. Chandler, 324 N.C. at 183, 376 S.E.2d at 735.

In the instant case, on 5 January 1998, there was a hearing at which both defendants, through counsel, stipulated to a transfer of venue to allow jury selection in a county other than Cumberland County with the trial to be held in Cumberland County. The trial court proposed changing venue for the limited purpose of jury selection from a special venire of Johnston County residents. The trial court asked both defendants if they agreed to the proposal, and both defendants, through counsel, answered in the affirmative.

Thereafter, on 13 January 1998, the trial court entered an “ORDER FOR SPECIAL VENIRE” which provided that “venue . . . has been ordered changed to Johnston County as of February 26th, 1998 for the selection of a jury.” Additionally, the trial court stated “that. . . due to the number of defendants and the fact that the charges involve the first degree murders of two law enforcement officers, the jury selection process in these matters will require that a Special Venire of jurors be summoned.” As Kevin never moved for a change of venue, N.C.G.S. § 15A-957 does not apply in the instant case.

In addition, there is no violation of N.C.G.S. § 15A-133 as Kevin argues because there was a ruling by the trial court on the issue of venue for jury selection. Given the nature and circumstances of the alleged crimes against two law enforcement officers and defendants’ acquiescence to the stipulation and proposal at the hearing, the trial court had the inherent authority to order the change of venue for the limited purpose of jury selection from a special venire of Johnston County residents. Moreover, Kevin has not shown the trial court abused its discretion in ordering the limited change of venue.

Kevin’s assignment of error has no merit. By assignments of error, both defendants argue the trial court violated their federal and state constitutional rights to have a jury selected from a representative cross-section of the community in which the crime occurred. We disagree. Initially, we address the State’s argument that defendants did not preserve this issue for appellate review. Generally, “[t]his Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(b)(1).

In this case, there is no indication from the record that defendants objected to the special venire from Johnston County. In fact, defendants, through counsel, agreed with the trial court’s proposal of a special venire from Johnston County. Thus, defendants waived appellate review of this assignment of error. Nevertheless, we elect, in our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, to review these assignments of error. See N.C. R. App. P. 2.

The state and federal constitutional guarantees of a trial by a jury of the accused’s peers “assures that members of a defendant’s ‘own race have not been systematically and arbitrarily excluded from the jury pool which is to decide [his] guilt or innocence.’ ” State v. Bowman, 349 N.C. 459, 467, 509 S.E.2d 428, 434 (1998) (quoting State v. McNeill, 326 N.C. 712, 718, 392 S.E.2d 78, 81 (1990)) (alteration in original), cert. denied, — U.S. —, 144 L. Ed. 2d 802 (1999). In Duren v. Missouri, 439 U.S. 357, 364, 58 L.

Ed. 2d 579, 587 (1979), the United States Supreme Court established a three-prong test to determine whether the right to a fair cross-section in the jury venire had been violated.

To establish a prima facie case of disproportionate representation in the jury venire, a defendant must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id., quoted in Bowman, 349 N.C. at 468, 509 S.E.2d at 434.

In the instant case, defendants claim, according to the 1990 Census data, 60% of the residents of Cumberland County are Caucasian, and 31.8% are African-American; and 80% of the residents of Johnston County are Caucasian, and 17.5% are African-American. Thus, defendants contend, African-Americans were underrepresented in the jury pool by 45%. There is no question in the instant case that defendants satisfied the first prong of the Duren test because African-Americans are unquestionably a “distinct” group for purposes of the Duren analysis. See Peters v. Kiff 407 U.S. 493, 498-99, 33 L. Ed. 2d 83, 91 (1972).

In determining whether there is disproportionate representation under the second prong of Duren, this Court considers absolute disparity figures on a case-by-case basis. See State v. Hough, 299 N.C. 245, 252, 262 S.E.2d 268, 273 (1980). “Absolute disparity” in the instant case is the percentage of African-Americans in Cumberland County minus the percentage of African-Americans in Johnston County. See id. at 251, 262 S.E.2d at 272.

Defendants, however, calculated the comparative disparity, or the percentage of absolute disparity between the counties divided by the percentage of African-Americans in Cumberland County. See id. at 251-52, 262 S.E.2d at 272. To calculate the absolute disparity, we subtract 17.5% (the percentage of African-Americans in Johnston County) from 31.8% (the percentage of African-Americans in Cumberland County); thus, the absolute disparity is 14.3%, much lower than the 45% comparative disparity reported by defendants.

This Court has held various percentages of absolute disparity, standing alone, are not unfair and unreasonable. See Bowman, 349 N.C. at 468, 509 S.E.2d at 434 (absolute disparity of 16.17%); State v. Price, 301 N.C. 437, 447, 272 S.E.2d 103, 110 (1980) (absolute disparity of 14%). The reasoning is that a defendant is “ ‘not entitled to a jury of any particular composition,... [or to] a jury which mirrors the presence of various and distinctive groups within the community.’ ” Bowman, 349 N.C. at 468, 509 S.E.2d at 434 (quoting Price, 301 N.C. at 448, 272 S.E.2d at 110-11); see also Apodaca v.

Oregon, 406 U.S. 404, 32 L. Ed. 2d 184 (1972). In addition, the trial by jury right “ ‘carries with it the right to be tried before a body which is selected in such a manner that competing and divergent interests and perspectives in the community are reflected rather than reproduced absolutely.’ ” Bowman, 349 N.C. at 468-69, 509 S.E.2d at 434 (quoting Price, 301 N.C. at 448, 272 S.E.2d at 111); see also Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690 (1975).

As we stated in Bowman and Price, defendants are not entitled to a special venire from the population of a county which exactly mirrors the population of Cumberland County as long as the venire was selected in a manner in which various interests were represented. While the population of Johnston County is not the mirror image of the population of Cumberland County, African-Americans were represented in Johnston County, and there is only a 14.3% absolute disparity. Therefore, we cannot say the absolute disparity between Cumberland County and Johnston County, standing alone, is unfair or unreasonable.

As to the third prong of Duren, this Court has held “[t]he fact that a particular jury or series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the [Equal Protection] Clause.” Washington v. Davis, 426 U.S. 229, 239, 48 L. Ed. 2d 597, 607 (1976), quoted in State v.

Avery, 299 N.C. 126, 130, 261 S.E.2d 803, 806 (1980); see also Bowman, 349 N.C. at 469, 509 S.E.2d at 434-35 (holding the defendant “failed to present any evidence showing that the jury-selection process was tainted by the systematic exclusion of African-Americans from the jury pool”). Moreover, “[statistics concerning one jury pool, standing alone, are insufficient to meet the third prong of Duren.” Bowman, 349 N.C. at 469, 509 S.E.2d at 435.

Likewise, in the instant case, the fact that the racial composition of Johnston County differs from that of Cumberland County is not sufficient to show “systematic exclusion.” The statistics concerning this one jury pool cannot satisfy the “systematic exclusion” requirement of the third prong of Duren. See id. Therefore, defendants have failed to establish aprima facie case of disproportionate representation, and these assignments of error are overruled. By assignments of error, both defendants challenge the sufficiency of the short-form murder indictments.

Kevin argues the trial court committed constitutional error by entering judgment on his first-degree murder convictions where the indictments were insufficient to charge this offense. Tilmon argues the trial court erred in denying his motion to dismiss the murder indictments. Both defendants contend the short-form indictments do not allege the specific elements of first-degree murder that defendants acted with premeditation and deliberation in violation of their federal constitutional rights. We recently addressed this issue in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), and State v.

Braxton, 352 N.C. 158, - S.E.2d - (2000), and we decline to revisit the issue in the instant case. Defendants’ arguments that the short-form murder indictments were insufficient are overruled. By assignments of error, both defendants argue the trial court erred by failing to require the State to disclose the aggravating circumstances on which it intended to rely at sentencing. Defendants contend the indictment should have contained the aggravating circumstances, and the trial court erred in denying their pretrial motions for disclosure of aggravating and mitigating circumstances.

Specifically, defendants rely on Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and argue that because aggravating circumstances may increase the penalty for first-degree murder from life imprisonment to death, defendants are entitled to pretrial notice, within the indictment or other binding instrument, of the aggravating circumstances the State intends to use at sentencing. We disagree. The United States Supreme Court has previously held an indictment “need not set forth facts relevant only to the sentencing of an offender found guilty of the charged crime.” Almendarez-Torres v.

United States, 523 U.S. 224, 228, 140 L. Ed. 2d 350, 358 (1998). In Jones, the Supreme Court recognized the difference between elements of an offense and sentencing factors when it stated, “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment.” Jones, 526 U.S. at 232, 143 L. Ed. 2d at 319 (emphasis added). On the same issue, this Court has held “the State need not set forth in an indictment the aggravating circumstances upon which it will rely in seeking a sentence of death.” State v.

Young, 312 N.C. 669, 675, 325 S.E.2d 181, 185 (1985). In State v. Williams, 304 N.C. 394, 422, 284 S.E.2d 437, 454 (1981), cert. denied, 456 U.S. 932, 72 L. Ed. 2d 450 (1982), we held N.C.G.S. § 15A-2000(e), which sets forth the aggravating circumstances the jury may consider, made the defendant fully aware of what the State had to prove before a death sentence could be imposed. As to defendants’ motions to disclose the aggravating circumstances, this Court has held a trial court may not require the State to disclose which aggravating circumstances it intends to rely on at the sentencing phase. See State v.

McKoy, 323 N.C. 1, 44, 372 S.E.2d 12, 36 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369 (1990); State v. Holden, 321 N.C. 125, 153, 362 S.E.2d 513, 531 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). In addition, we have stated that N.C.G.S. § 15A-2000(

e) sets forth the only aggravating circumstances upon which the State may rely in seeking the death penalty, and the “notice provided by this statute is sufficient to satisfy the constitutional requirements of due process.” Holden, 321 N.C. at 154, 362 S.E.2d at 531. The United States Supreme Court’s recent opinion in Apprendi v. New Jersey, - U.S. -, - L. Ed. 2d -, 68 U.S.L.W. 4576 (2000), does not affect our prior holdings regarding the inclusion of aggravating circumstances in an indictment.

The Supreme Court cites its previous holding in Almendarez-Torres that differentiates aggravating circumstances from elements of a crime and notes that it “has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes.” Apprendi, — U.S. at —, — L. Ed. 2d at —, 68 U.S.L.W. at 4584-85; see also Almendarez-Torres, 523 U.S. at 228, 140 L. Ed. 2d at 358. Considering the Supreme Court’s continued recognition of the •difference between elements of a crime and the aggravating circumstances in a capital sentencing procedure, see Walton v.

Arizona, 497 U.S. 639, 111 L. Ed. 2d 511 (1990), our prior holdings are consistent with the decisions in Jones and Apprendi. Therefore, as we stated previously, an indictment need not contain the aggravating circumstances the State will use to seek the death penalty, see Young, 312 N.C. at 675, 325 S.E.2d at 185, and the trial court may not order the State to disclose the aggravating circumstances upon which it intends to rely, see Holden, 321 N.C. at 153, 362 S.E.2d at 531.

Thus, in the instant case, the lack of aggravating circumstances on the indictment did not create error, and the trial court did not err in denying defendants’ motions to order disclosure of the aggravating circumstances. Accordingly, these assignments of error are overruled. By assignment of error, Tilmon argues the trial court committed error and denied him due process of law when it denied his pretrial motion to sever the cases and overruled his objections to improper joinder. We disagree.

The facts show that on 10 February 1998, Tilmon moved for severance of his case from that of Kevin to allow the pursuit of antagonistic defenses, to promote a fair determination of guilt or innocence, and to prevent a prejudicial outcome. Citing Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968), Tilmon contended each defendant made out-of-court statements regarding the other defendant; and citing State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984), Tilmon argued he and Kevin had irreconcilable differences.

Subsequently, on 16 February 1998, the State made a motion to join the cases on the grounds the several offenses charged were part of a common scheme or plan; were part of the same act or transaction; and were so closely connected in time, place, and occasion that it would be difficult to separate one charge from proof of the others. At a pretrial hearing, Tilmon requested an ex parte, in camera hearing regarding severance on the ground he needed to divulge his defense to the trial court in order to fully and effectively argue this motion. Tilmon also argued there were antagonistic defenses with Kevin.

Over the State’s objection, the trial court allowed his request. Thereafter, all persons left the courtroom except Tilmon, his counsel, security personnel, the clerk, the judge, and the court reporter. After the excluded parties were returned to the courtroom, Tilmon argued the cases should be separated because the conflict between his and Kevin’s respective positions was such that he would be denied a fair trial. Additionally, Tilmon argued, pursuant to State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 64 L.

Ed. 2d 282 (1980), that evidence concerning Kevin’s seized luggage should be held to conflict with Tilmon’s defense and/or alleged motive. The trial court denied Tilmon’s motion for severance and allowed the State’s motion for joinder. The North Carolina General Statutes provide for joinder of defendants subject to the following provisions: (

b) Separate Pleadings for Each Defendant and Joinder of Defendants for Trial.

(1) Each defendant must be charged in a separate pleading.

(2) Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial: a. When each of the defendants is charged with accountability for each offense; or b. When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged: 1. Were part of a common scheme or plan; or 2. Were part of the same act or transaction; or 3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.

N.C.G.S. § 15A-926(b) (1999). “The propriety of joinder depends upon the circumstances of each case and is within the sound discretion of the trial judge.” State v. Pickens, 335 N.C. 717, 724, 440 S.E.2d 552, 556 (1994). The trial court’s discretionary ruling will not be disturbed on appeal absent a showing that joinder deprived the defendant of a fair trial. See id.; State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998); Nelson, 298 N.C. at 586, 260 S.E.2d at 640.

Motions for severance and objections to joinder are governed by N.C.G.S. § 15A-927(c), which provides: (

c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.

(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses: a. A joint trial at which the statement is not admitted into evidence; or b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or c. A separate trial of the objecting defendant.

(2) The court, on motion of the prosecutor, or on motion of the defendant other than under subdivision (1) above must deny a joinder for trial or grant a severance of defendants whenever: a. If before trial, it is found necessary to protect a defendant’s right to a speedy trial, or it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants; or b. If during trial, upon motion of the defendant whose trial is to be severed, or motion of the prosecutor with the consent of the defendant whose trial is to be severed, it is found necessary to achieve a fair determination of the guilt or innocence of that defendant.

(3) The court may order the prosecutor to disclose, out of the presence of the jurors, any statements made by the defendants which he intends to introduce in evidence at the trial when that information would assist the court in ruling on an objection to joinder of defendants for trial or a motion for severance of defendants. N.C.G.S. § 15A-927(c) (1999). Thus, “the trial court must deny joinder for trial or grant a severance of defendants whenever it is necessary to promote a fair determination of the guilt or innocence of one or more defendants.” Pickens, 335 N.C. at 724, 440 S.E.2d at 556.

We have said the presence of antagonistic defenses does not, standing alone, warrant severance. Id. at 725, 440 S.E.2d at 556. Additionally, “ ‘[t]he test is whether the conflict in defendants’ respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial.’ ” State v. Lowery, 318 N.C. 54, 59, 347 S.E.2d 729, 734 (1986) (quoting Nelson, 298 N.C. at 587, 260 S.E.2d at 640); see also Pickens, 335 N.C. at 725, 440 S.E.2d at 556.

To determine whether the positions of the defendants are so antagonistic, or conflicting, as to be prejudicial, this Court has stated the trial court should grant severance when necessary to avoid an evidentiary battle between the defendants “where the state simply stands by and witnesses ‘a combat in which the defendants [attempt] to destroy each other.’ ” Nelson, 298 N.C. at 587, 260 S.E.2d at 640 (quoting People v. Braune, 363 Ill. 551, 557, 2 N.E.2d 839, 842 (1936)) (alteration in original). The State in the instant case did not stand by and rely on Kevin’s statement to prove its case. See State v.

Green, 321 N.C. 594, 601, 365 S.E.2d 587, 591-92 (holding the State did not rely on the codefendant’s testimony, but was able to show independent evidence of defendant’s guilt), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988). In his statement, Kevin claimed he was debilitated by pepper spray, and while in this condition, he heard gunshots. To rebut Kevin’s claim, the State offered contrary evidence on the effects of pepper spray. Contrary to Tilmon’s argument and to his benefit, the State’s rebuttal evidence actually disproves Kevin’s statement.

Moreover, there was overwhelming evidence, including the testimony of several eyewitnesses, of Tilmon’s involvement in the crimes. See Evans, 346 N.C. at 232, 485 S.E.2d at 277 (holding there was plenary evidence, irrespective of the codefendant’s statement, that defendant was involved). This rebuttal evidence, along with the direct evidence of Tilmon’s involvement in the crimes, shows the State was not a mere witness to an evidentiary battle between Kevin and Tilmon.

Tilmon also argues the trial court should have severed defendants’ trials because Kevin’s out-of-court statement to police could not be adequately “sanitized” so as to avoid violating Bruton. In Bruton, the United States Supreme Court held admission of a statement by a nontestifying codefendant, which incriminates the other defendant, at a joint trial, violated that defendant’s Sixth Amendment right to confront the witnesses against him. See Evans, 346 N.C. at 231, 485 S.E.2d at 277. Bruton applies to the states by way of the Fourteenth Amendment. See Pointer, 380 U.S. at 403, 13 L. Ed. 2d at 926; State v.

Parrish, 275 N.C. 69, 73-74, 165 S.E.2d 230, 234 (1969). “The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant. . ., and (2) that the declarant will not take the stand.

If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation.” State v. Tucker, 331 N.C. 12, 23-24, 414 S.E.2d 548, 554 (1992) (quoting State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968)) (alteration in original).

Tilmon, however, waived any Bruton objection by signing the “Notice of Waiver of Right” in which he explicitly “waive[d] any constitutional or statutory objection that [he] may have under [Bruton] and N.C.G.S. § 15A-927 regarding the redaction and/or admission of the statement of a nontestifying co-defendant.” Additionally, Tilmon’s attorney stated in open court there was “no objection to the introduction of the statement of Kevin Golphin [taken by the agents on the date of his arrest] as it relates to Tilmon Golphin.” See United States v.

Flaherty, 76 F.3d 967, 971 (8th Cir. 1996) (holding the defendant waived a Bruton challenge when he did not mention Bruton when the codefendant’s statements were admitted and the trial court gave the cautionary instruction requested by defendant); State v. Hutchins, 303 N.C. 321, 341-42, 279 S.E.2d 788, 801 (1981) (holding constitutional guarantees are not absolute as defendants “may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it”).

Therefore, we conclude Tilmon waived appellate review of severance based on a Bruton violation. Tilmon further contends, pursuant to State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982), and State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated sub nom. Carter v. North Carolina, 429 U.S. 809, 50 L. Ed. 2d 69 (1976), that severance was appropriate because he was precluded from offering exculpatory evidence that would have been available if the cases had not been joined. However, contrary to Tilmon’s argument, this case is distinguishable from Boykin and Alford.

In Boykin, this Court held the defendant “was prejudiced by the court’s consolidation of cases because he was prevented from testifying as to his motive in making his ‘false confessions.’ ” Boykin, 307 N.C. at 91, 296 S.E.2d at 260. The trial court allowed the State to introduce the admission, but because of the joint trial, the trial court did not permit the defendant to explain that the “confessions” were intended to protect the codefendant, who had previously been convicted of murder. Id.

This Court also held the defendant was prevented from eliciting testimony that the codefendant had also confessed to the crime. Id. The instant case is distinguishable in that Tilmon was not prevented from providing a motive for his own statements as was the case in Boykin. Tilmon contends other witnesses did not wish to testify because of the negative effect on Kevin. Tilmon’s inability to elicit information about a possible motive Kevin may have had is also dissimilar from the situation in Boykin where the defendant was prevented from actually testifying about his own motive for giving false confessions.

In Alford, this Court held the defendant was entitled to a separate trial where the codefendant’s statement could have corroborated the defendant’s alibi, but neither the State nor the defendant offered the statement into evidence, and the defendant could not force the codefendant to testify because of the codefendant’s Fifth Amendment right against self-incrimination. Alford, 289 N.C. at 387-88, 222 S.E.2d at 232. In the instant case, unlike in Alford, Tilmon was not prevented from offering evidence which would support an alibi.

Tilmon merely contends some witnesses would not testify because of the negative statements they would have to make about Kevin; however, contrary to Alford where the defendant could not force the codefendant to testify, see id., Tilmon could have subpoenaed the witnesses to testify for him. Tilmon also states he was prevented from asking questions about Kevin’s motive to kill both victims. Such questioning would not exculpate Tilmon, or clear him from guilt, as would the alibi evidence in Alford. See id. Therefore, the instant case is distinguishable from both Boykin and Alford.

Additionally, the evidence in the instant case clearly supports consolidation of defendants’ trials and the trial court’s grant of the State’s motion for joinder. Kevin and Tilmon were both charged with two counts of first-degree murder; two counts of robbery with a dangerous weapon; and one count each of assault with a deadly weapon with intent to kill, discharging a firearm into occupied property, and possession of a stolen vehicle. The evidence tended to show the offenses arose out of a common scheme and were part of the same transaction. See N.C.G.S. § 15A-926(b)(2).

Therefore, the trial court did not err in denying Tilmon’s motion for severance and granting the State’s motion for joinder. In another assignment of error, Tilmon argues the trial court erred in denying his pretrial motion for discovery of Trooper Lowry’s and Deputy Hathcock’s personnel files. Tilmon relies on his federal constitutional right to material evidence which is in the hands of the prosecution. Additionally, Tilmon relies on the rules of evidence pertaining to the admissibility of relevant evidence in arguing he was entitled to the personnel files.

Tilmon further argues the files may have shown prior acts of lethal force which might have impacted the jury on the issue of whether Tilmon had a reasonable belief that Kevin was the victim of excessive force by the law enforcement officers on the day in question. We disagree. Initially, we note Tilmon claims the denial of this requested discovery violated his state and federal constitutional rights. However, Tilmon’s motion for discovery of the personnel files did not allege any constitutional violations.

As such, the trial court did not rule upon any possible constitutional violations. “ ‘This Court is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court.’ ” State v. Nobles, 350 N.C. 483, 495, 515 S.E.2d 885, 893 (1999) (quoting State v. Creason, 313 N.C. 122, 127, 326 S.E.2d 24, 27 (1985)). Therefore, we need not address Tilmon’s allegation that the denial of his motion was a violation of his state and federal constitutional rights. See also N.C. R. App. P. 10(b)(1). Furthermore, discovery in the superior court is governed by

chapter 15A,

article 48 of the North Carolina General Statutes. N.C.G.S. § 15A-903 specifically governs disclosure of evidence by the State and provides in pertinent part: (

d) Documents and Tangible Objects. — Upon motion of the defendant, the court must order the prosecutor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belong to the defendant.

N.C.G.S. § 15A-903(d) (1999) (emphasis added). We have previously held “ ‘[w]ithin the possession, custody, or control of the State’ as used in th[is] provision[] means within the possession, custody or control of the prosecutor or those working in conjunction with him and his office.” State v. Crews, 296 N.C. 607, 616, 252 S.E.2d 745, 751-52 (1979); see also State v. Pigott, 320 N.C. 96, 102, 357 S.E.2d 631, 635 (1987).

In the instant case, on 10 February 1998, Tilmon filed a motion for discovery of personnel files in which he requested that the trial court conduct an in camera review and then provide defendant any evidence deemed exculpatory as part of discovery. In the motion, Tilmon referred to newspaper articles published after the crimes which concerned an incident involving disciplinary action against Trooper Lowry two years prior to the crimes.

At a pretrial hearing, the trial court denied the motion stating there was no justification for an in camera examination at that time, but the trial court reserved the right to order the files’ production at a later time. There was no violation of this discovery statute in the instant case. The list of discoverable items in the statute does not include victims’ personnel files, see N.C.G.S. § 15A-903(d), and the personnel files were not in the possession, custody, or control of the prosecutor in this case, see id. See also State v.

Cunningham, 344 N.C. 341, 352-53, 474 S.E.2d 772, 776 (1996) (holding regardless of whether the defendant had a right to an in camera inspection of the personnel file, he was not prejudiced by the trial court’s refusal to allow it because the victim’s conduct as a police officer would have no relevance to the question at issue in that case). Therefore, the trial court did not err in denying Tilmon’s motion to discovery of the victims’ personnel files.

By assignments of error, both Kevin and Tilmon argue the trial court erred in denying Tilmon’s pretrial motion to suppress the incriminating statement Tilmon made to law enforcement officers after his arrest. Tilmon argues the police continued the custodial interrogation of him after he had invoked his right to counsel. Based upon this alleged violation, Tilmon contends the trial court should have granted his motion to suppress and the trial court’s error in admitting the statement entitles him to a new trial.

Kevin concedes he has no standing to assert Tilmon’s constitutional rights but claims he was prejudiced by the erroneous admission of Tilmon’s statement. Kevin argues Tilmon’s confession directly incriminated Kevin because of the acting in concert theory submitted to the jury, and the jury could have drawn inferences regarding Kevin’s participation in Deputy Hathcock’s murder from omissions in Tilmon’s statement. We disagree.

As to Tilmon’s argument on this issue, we have previously stated that a motion in limine was not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial. See State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam). As a pretrial motion to suppress is a type of motion in limine, Tilmon’s pretrial motion to suppress is not sufficient to preserve for appeal the question of the admissibility of his statement because he did not object at the time the statement was offered into evidence. See id.

In addition, while Tilmon’s assignment of error includes plain error as an alternative, his brief contains no specific argument that there is plain error in the instant case. Accordingly, Tilmon’s argument is not properly before this Court. See N.C. R. App. P. 10(c)(4); State v. McNeil, 350 N.C. 657, 681, 518 S.E.2d 486, 501 (1999), cert. denied, - U.S. —, 146 L. Ed. 2d 321 (2000); State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996).

However, given the constitutional nature of Tilmon’s argument, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we will address the merits of Tilmon’s argument. Both the United States Supreme Court and this Court have held that during a custodial interrogation, if the accused invokes his right to counsel, the interrogation must cease and cannot be resumed without an attorney being present “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485, 68 L.

Ed. 2d 378, 386 (1981) (emphasis added); see also Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966); State v. Warren, 348 N.C. 80, 97, 499 S.E.2d 431, 440, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998); State v. Jackson, 348 N.C. 52, 55, 497 S.E.2d 409, 411, cert. denied, 525 U.S. 943, 142 L. Ed. 2d 301 (1998); State v. Lang, 309 N.C. 512, 521, 308 S.E.2d 317, 321 (1983).

The term “interrogation” is not limited to express questioning by law enforcement officers, but also includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 302, 64 L. Ed. 2d 297, 308 (1980); see also State v. Coffey, 345 N.C. 389, 400, 480 S.E.2d 664, 670 (1997); State v. DeCastro, 342 N.C. 667, 684, 467 S.E.2d 653, 661, cert. denied, 519 U.S. 896, 136 L. Ed. 2d 170 (1996).

The focus of the definition is on the suspect’s perceptions, rather than on the intent of the law enforcement officer, because Miranda protects suspects from police coercion regardless of the intent of police officers. See Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308. However, because “the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words' or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. at 301-02, 64 L. Ed. 2d at 308.

Based on the Supreme Court’s definition of interrogation in Innis, there is a limited exception to Miranda for routine questions asked during the booking process. See Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 L.

Ed. 2d 528, 552 (1990) (plurality opinion) (where the accused made an incriminating statement prior to being read his Miranda rights, the Supreme Court held questions regarding a suspect’s name, address, physical characteristics, date of birth, and current age constituted custodial interrogation, but were “nonetheless admissible because the questions [fell] within a ‘routine booking question’ exception which exempts from Miranda’s coverage questions to secure the ‘biographical data necessary to complete booking or pretrial services’ ”) (quoting United States v.

Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989)); Clayton v. Gibson, 199 F.3d 1162 (10th Cir. 1999) (where the suspect had been given his Miranda rights and had invoked his right to counsel, the Tenth Circuit Court of Appeals relied on Muniz, 496 U.S. at 601, 110 L. Ed. 2d at 552, in holding there was no constitutional violation because the questions asked fell within the booking exception); State v. Ladd, 308 N.C. 272, 286, 302 S.E.2d 164, 173 (1983) (where the suspect had been given his Miranda rights and had invoked his right to counsel, this Court relied on the language of Innis, 446 U.S. at 301, 64 L.

Ed. 2d at 308, to find an exception to “interrogation” for questions related to the booking process). This exception is consistent with Innis because the Supreme Court stated that interrogation includes express questioning as well as “ ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” Ladd, 308 N.C. at 286, 302 S.E.2d at 173 (quoting Innis, 446 U.S. at 301, 64 L. Ed. 2d at 308) (alteration in original).

In an effort not to infringe upon an accused’s constitutional rights, however, the exception is limited “to routine informational questions necessary to complete the booking process that are not ‘reasonably likely to elicit an incriminating response’ from the accused.” Id. at 287, 302 S.E.2d at 173. In addition, responses to generalized questions by law enforcement officers, which are not reasonably likely to elicit incriminating responses, are admissible. See State v.

Gray, 347 N.C. 143, 171, 491 S.E.2d 538, 549 (1997) (asking whether the defendant needed anything was not designed to elicit an incriminating response), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998); State v. Vick, 341 N.C. 569, 581, 461 S.E.2d 655, 662 (1995) (police captain’s statements during the fingerprinting process that he would talk with the defendant later and answer any of the defendant’s questions at that time were not intended or expected to elicit an incriminating response). Moreover, law enforcement officers can respond to questions posed by a defendant without violating Innis or Edwards.

See State v. McQueen, 324 N.C. 118, 132, 377 S.E.2d 38, 46-47 (1989) (holding the law enforcement officer’s willingness to respond to the defendant’s questions and the actual answers given were not “words or actions . . . [the law enforcement officer] should have known were reasonably likely to elicit an incriminating response” pursuant to Innis, 446 U.S. 291, 64 L. Ed. 2d 297, and the defendant’s statements and questions were voluntary pursuant to Edwards, 451 U.S. 477, 68 L. Ed. 2d 378).

In the instant case, the transcript of the pretrial hearing concerning Tilmon’s motion to suppress reveals that Agent Godfrey and Detective Casey questioned Tilmon on 23 September 1997. Agent Godfrey advised Tilmon of his constitutional rights. Tilmon stated he wanted to talk with a lawyer. Thereafter, Agent Godfrey informed Tilmon they could not ask Tilmon about his involvement in the shootings of Trooper Lowry and Deputy Hathcock because he had requested to speak with an attorney, but Agent Godfrey told Tilmon they did need to obtain biographical information and background data for the arrest report.

Subsequently, Agent Godfrey asked Tilmon for his full name, address, height, weight, next of kin, place of employment, and grade of education he had completed. Then Tilmon asked Agent Godfrey where he would be kept until his trial. Agent Godfrey responded that he would be kept in the Cumberland County jail. Tilmon then informed Agent Godfrey that he was a vegetarian and that his religion allowed him to eat only fish and prohibited anyone from cutting his hair or taking anything from his body. Agent Godfrey asked the name of Tilmon’s religion so he could inform jail management in order to justify Tilmon’s request.

In response, Tilmon stated he was a member of the Rastafarian religion. Next, based on the belief that a video camera in Trooper Lowry’s car had recorded the incident, Tilmon asked Agent Godfrey and Detective Casey why they wanted to talk about what had happened because it should have been videotaped. Agent Godfrey responded that he still needed to know why it happened. Agent Godfrey testified that at the time he made this statement, he knew there was no videotape and that neither he nor Detective Casey ever indicated to Tilmon there was a videotape.

Tilmon then stated he would tell Agent Godfrey and Detective Casey why it happened. Tilmon proceeded, over a lengthy interview process which included several breaks, to make a statement concerning the shooting incident. After reviewing the motion, hearing the evidence offered by the State, and giving Tilmon an opportunity to present evidence, the trial court made findings of fact consistent with the above recitation of facts.

Thereafter, the trial court concluded as a matter of law: Tilmon Golphin made a statement to law enforcement officers freely voluntarily and understandingly, after being fully advised by law enforcement officers of all appropriate constitutional and state statutory rights and federal statutory rights related to the right to counsel and related to rights concerning self-incrimination. Two, Tilmon Golphin’s motion to suppress his statement of the — on the twenty-third day of September, 1997, should be denied. Based on the findings of fact and conclusions of law, the trial court denied Tilmon’s motion to suppress.

A trial court is to make an initial determination as to whether a defendant waived his/her right to counsel. Those findings of fact “ ‘are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.’ ” State v. Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997) (quoting State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995)). Conclusions of law which are supported by findings of fact are binding on appeal.

Id. “Further, the trial court’s conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997). We conclude the trial court’s findings of fact are supported by competent evidence and are, therefore, binding on appeal.

See Coffey, 345 N.C. 389, 480 S.E.2d 664 (holding the Court was bound by the trial court’s findings because, assuming arguendo there was an interrogation, there was competent evidence in the record to support the trial court’s finding that the defendant initiated the conversation with police after invoking his right to counsel). In addition, the findings of fact support the conclusions of law. This Court must also determine if the trial court’s conclusions are legally correct. We conclude they are.

Although Tilmon asserted his right to counsel and the police continued to ask Tilmon questions, see Innis, 446 U.S. at 302, 64 L. Ed. 2d at 308, the questions were included in the exception for questions used to elicit biographical information, see Ladd, 308 N.C. at 286, 302 S.E.2d at 172-73.

In addition, it is unreasonable to say Agent Godfrey should have known his questions concerning Tilmon’s biographical information were reasonably likely to elicit an incriminating response, and there was no reason Agent Godfrey should have known his response to Tilmon’s questions about where he would be housed until the time of trial would elicit an incriminating response. See Innis, 446 U.S. at 301-02, 64 L. Ed. 2d at 308; McQueen, 324 N.C. at 132, 377 S.E.2d at 46.

Moreover, Tilmon initiated the further discussion when he asked why Agent Godfrey and Detective Casey wanted to talk about the incident when it had been videotaped. See Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386. Agent Godfrey merely responded to Tilmon’s question that they needed to know why it happened. Nothing should have led Agent Godfrey to believe his response to the question would elicit an incriminating response. See Innis, 446 U.S. at 301-02, 64 L. Ed. 2d at 308.

As we have concluded that the trial court’s findings of fact are supported by competent evidence, that the findings of fact support the conclusions of law, and that the conclusions of law are legally correct, we hold Tilmon’s constitutional rights were not violated by the trial court’s denial of his motion to suppress his statement to police. Therefore, this assignment of error is overruled. Concerning Kevin’s assignment of error, it is well settled that “a defendant’s right to counsel is personal” to the defendant. State v. Peterson, 344 N.C. 172, 179, 472 S.E.2d 730, 733 (1996).

Kevin concedes he has no standing to assert Tilmon’s constitutional right to counsel. Nevertheless, Kevin argues he was prejudiced by the erroneous admission of the allegedly unconstitutional confession. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a party to present a timely request, objection, or motion to the trial court to preserve a question for appellate review. See N.C. R. App. P. 10(b)(1). However, Kevin did not make a motion in limine to suppress Tilmon’s statement on the basis that both the state and federal constitutions require its exclusion.

Nor did Kevin object at the time the statement was offered into evidence at trial. Thus, this issue was not properly preserved. Although Kevin’s assignment of error includes plain error as an alternative, he does not argue specifically and distinctly, pursuant to N.C. R. App. P. 10(c)(4), that there was plain error. Therefore, this assignment of error is not properly before this Court. JURY SELECTION ISSUES By assignments of error, both defendants argue, pursuant to N.C.G.S. § 15A-1214(a), the trial court violated its statutory duty to ensure jury selection was conducted in a random manner.

Specifically, defendants contend both the trial

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