dissenting in part and concurring in part.
I cannot agree with either the majority’s conclusion that the “defendant fulfilled his burden of showing that a reasonable likelihood existed that he would not receive a fair trial before an Alleghany County jury” or with the majority’s holding that the defendant must receive a new trial on this basis. As to these points, I must respectfully dissent. Otherwise, I concur in the opinion of the majority.
The majority appears to base its holding in this regard, at least in part, upon the Constitution of the United States, as it relies heavily upon cases decided by the Supreme Court of the United States on constitutional grounds. Particularly for this reason, I fear that the precedent established by the majority in this case inevitably creates the “potential for needless friction between the rights of a free press guaranteed by the First Amendment to the Constitution of the United States and the defendant’s right to trial by an impartial jury guaranteed by the Sixth Amendment.” State v. McDougald, 38 N.C. App. 244, 249, 248 S.E. 2d 72, 78 (1978), discretionary review denied, appeal *274dismissed, 296 N.C. 413, 251 S.E. 2d 472 (1979). By its opinion today, I believe the majority tends to destroy the delicate balance between the First Amendment and the Sixth Amendment and to give the Sixth Amendment clear priority status over the First Amendment.
Certainly there was no error in denying the defendant’s pretrial motion for a change of venue or special venire from another county. I have found only one case, Rideau v. Louisiana, 373 U.S. 723 (1963), in which the Supreme Court of the United States determined that, no matter what could be shown during the selection of the jury, the community in which the defendant was tried must be presumed to be so prejudiced as a result of pretrial publicity that the defendant could not receive a fair trial. That case is unique, however, in that it involved a factual situation in which the defendant’s pretrial showing revealed that his televised confession without benefit of counsel was participated in by law enforcement authorities and was shown repeatedly to the local viewing audience in the small community from which the jury was drawn. I believe that case is “an aberration which should be confined to its facts and not brought into play here.” State v. McDougald, 38 N.C. App. at 249, 248 S.E. 2d at 78 (1978). Even in Eideau Justices Clark and Harland dissented on the ground that there was no showing that the jury which actually heard the case had been affected by the publicity.
To the extent the majority relies upon Sheppard v. Maxwell, 384 U.S. 333 (1966) and Estes v. Texas, 381 U.S. 532 (1965) as support for its holding that the trial court erred in failing to allow a change of venue or special venire, I believe the majority’s reliance is misplaced. In each of those cases, the Supreme Court of the United States discussed the heavy pretrial publicity involved but emphasized the trial court’s failure to take measures to insulate the jury from massive publicity during the trial and disruptive conduct of reporters and others during the trial United States v. Haldeman, 559 F. 2d 31, 61 n. 32 (D.C. Cir. 1976), certiorari denied, 431 U.S. 933, rehearing denied, 433 U.S. 916 (1977). No such failure by the trial court is before us in the present case, and neither Sheppard nor Estes is controlling authority given the facts of this case.
I can conceive of almost no circumstance in which an appellate court should reverse a trial court for its refusal to grant a *275change of venue or special venire prior to the voir dire during which the jury is selected. In my view, “If an impartial jury actually cannot be selected, that fact should become evident at the voir dire. The defendant will then be entitled to any actions necessary to assure that he receives a fair trial.” United States v. Haldeman, 559 F. 2d at 63.
Further, I do not think that anything in the record before us in the present case indicates that the defendant bore his burden under either the totality of the circumstances test or the actual prejudice test of showing a reasonable likelihood that he would not receive a fair trial before an Alleghany County jury. As the majority points out, the defendant sought to support his pretrial motion by introducing the testimony of several attorneys, a magistrate and a deputy sheriff in which each gave his opinion that the defendant could not receive a fair trial in Alleghany County. Assuming arguendo that a sufficient groundwork had been laid to make such opinion testimony admissible, it was insufficient to show a reasonable likelihood that the defendant could not receive a fair trial in Alleghany County.
In United States v. Haldeman, 559 F. 2d 31 (D.C. Cir 1976), certiorari denied, 431 U.S. 933, rehearing denied, 433 U.S. 916 (1977), a former Attorney General of the United States and the two highest advisors to President Nixon were on trial for their participation in the Watergate affair. This scandal and the defendants’ participation therein received massive daily publicity for more than twenty-two months. The crimes for which the defendants were on trial received in all probability the most extensive news media coverage in the history of the United States. Clearly admissible scientific sampling revealed that sixty-one percent of the population of the District of Columbia thought the defendants were in fact guilty and that this percentage was significantly higher than the corresponding national average. Id., 559 F. 2d at 144, MacKinnon, Circuit Judge, concurring in part and dissenting in part. Newspaper coverage alone in the District of Columbia consumed an average of thirty to one hundred twenty column inches a day for a total of more than fifty thousand column inches during the entire twenty-two month period between the disclosure of the Watergate break-in and the defendants’ motion for a change of venue. Nevertheless, the United States Court of Appeals for the District of Columbia Circuit held that;
*276In short, unlike the situation faced by the Court in Rideau, we find in the publicity here no reason for concluding that the population of Washington, D. C. was so aroused against appellants and so unlikely to be able objectively to judge their guilt or innocence on the basis of the evidence presented at trial that their due process rights were violated by the District Court’s refusal to grant a lengthy continuance or a change of venue prior to attempting selection of a jury.
559 F. 2d 31 at 61-2. The effect of the pretrial publicity in the present case, whether by word of mouth or through the news media, was insignificant by comparison to that shown by competent evidence to exist in Haldeman. The opinion testimony of the defendant’s witnesses concerning their perception as to whether he could receive a fair trial in Alleghany County was not such as to require the trial court to allow the defendant’s motion for change of venue or for a special venire.
Similarly, nothing occurring during the voir dire at which the twelve jurors who convicted the defendant were selected revealed a reasonable likelihood that he would not receive a fair trial. It is true, of course, that:
In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it.
Murphy v. Florida, 421 U.S. 794, 803 (1975). During the selection of the twelve jurors who served in the present case, the defendant challenged four veniremen for cause when they indicated that they would have difficulty in disabusing themselves of any preconceived opinions they may have formed as a result of pretrial publicity. The trial court on its own motion excused twelve veniremen for this reason. Thus, a total of sixteen veniremen were excused because they indicated that they had formed or might have formed opinions as a result of their familiarity with the parties or pretrial publicity. No juror who participated in the determination of the defendant’s guilt indicated that he or she had formed any opinion as to the defendant’s guilt prior to hearing evidence. Each stated affirmatively *277that he or she could base a decision as to the defendant’s guilt solely upon the evidence introduced at trial and uninfluenced by any other factors.
Therefore, the present case is not controlled by Irvin v. Dowd, 366 U.S. 717 (1961). In Irvin sensational publicity adverse to the accused permeated the small town in which the trial was held. The voir dire examination indicated that ninety percent of the veniremen and eight of the twelve jurors who actually determined the defendant’s guilt had a preconceived opinion as to the defendant’s guilt, and the defendant unsuccessfully challenged for this cause several people who sat on the jury. The trial court had excused for this cause 268 of the 430 veniremen. No such situation is presented by the present case.
In my view, this case is controlled, instead, by Murphy v. Florida. There, Mr. Justice Marshall speaking for the Court distinguished Irvin v. Dowd and stated that:
In the present case, by contrast, 20 of the 78 persons questioned were excused because they indicated an opinion as to the petitioner’s guilt. This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.
421 U.S. at 803. Here, as in Murphy, the jurors who participated in the trial “displayed no animus of their own.” The exclusion of 16 veniremen for preconceived opinions, like the exclusion of 20 veniremen for the same reason in Murphy, “by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own.” Id. Therefore, the defendant failed to carry his burden.
I respectfully suggest that the majority has lost sight of the fact that jurors need not be totally ignorant of the facts and issues involved in the case to be tried and are not required to come to their duties without having formed any impressions or opinions concerning the case. As the Supreme Court of the United States has clearly stated:
*278To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective jurors’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin v. Dowd, 366 U.S. at 723. Here, the defendant entirely failed to carry his burden of showing that any juror who passed upon his guilt was unable to lay aside any impression or opinion and render a verdict based on the evidence presented in court. Each of the jurors affirmatively stated that he or she could lay aside any such impressions or opinions and, as previously pointed out, the defendant offered nothing sufficient to impeach the jurors’ indications of indifference and lack of animus.
Additionally, the majority has correctly stated that, in order to meet the burden of showing that pretrial publicity precluded a fair trial, a defendant must show “that he exhausted peremptory challenges and that a juror objectionable to the defendant sat on the jury.” In my view, no such showing was made in the present case.
When the jury of twelve had been selected, the defendant had not exhausted his peremptory challenges. Although one juror, Mrs. Maxwell, was challenged for cause when she indicated that she did not believe in the insanity defense but could apply it if the trial court instructed her on the law, no juror was seated over the defendant’s objection who indicated that he or she had formed or might have formed an opinion concerning the case to be tried. The fact that the defendant later exhausted his peremptory challenges during the selection of two alternate jurors is irrelevant since neither of the alternates sat on the jury which determined the defendant’s guilt.
No juror who passed upon the defendant’s guilt was challenged for cause by the defendant for having formed an opinion concerning the case to be tried. “The fact that [the defendant] did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt.” Beck v. Washington, 369 U.S. 541, 558 (1962). The defendant’s failure to show that he *279exhausted his peremptory challenges during selection of the jury which tried him is fatal to his assignment of error.
For the foregoing reasons I dissent in part from the opinion of the majority and vote to find no error in the guilt-innocence determination phase of the defendant’s trial. As the opinion of the majority makes it unnecessary for this Court to reach its statutory duty of proportionality review, I express no opinion as to the appropriateness of the sentence of death.