NO. COA13-330
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Wilkes County
No. 11 CRS 54425
CHARLES ANTHONY MCGRADY
Appeal by Defendant from judgment entered 8 August 2012 by
Judge R. Stuart Albright in Wilkes County Superior Court. Heard
in the Court of Appeals 9 October 2013.
Attorney General Roy Cooper, by Assistant Solicitor General
Gary R. Govert, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
This case arises from the death of James Allen Shore, Jr.
(“the decedent”), who was shot by Defendant Charles Anthony
McGrady in a field near both individuals’ homes. Defendant and
the decedent are first cousins and were involved in a number of
disputes during the decedent’s life. On 6 February 2012,
Defendant was charged with first-degree murder. The trial began
on Monday, 30 July 2012, and continued through the following
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Wednesday. The evidence presented at trial tended to show the
following:
At the time of the shooting, the decedent lived on the
western side of Wiles Ridge Road with his fiancée, Tammy Wood
(“Wood”), in Hays, North Carolina. Defendant and his girlfriend,
Darlene Kellum, lived on the eastern side of the road, opposite
the decedent. Defendant’s son, Brandon McGrady (“Brandon”),
lived approximately 400 feet to the northwest of his father’s
home. Defendant’s aunt and the decedent’s mother, Betty Shore,
lived on the western side of the road. The area encompassing
these homes is approximately nine acres.
In the early morning hours of 20 December 2011, the
decedent took his dog for a walk outside his house. Afterward,
he returned home upset and told Wood that Defendant had been
shining a light on him. Later that morning, around 10:00 a.m.,
the decedent got up, walked his dog to his mother’s house, and
told her the same thing. He was wearing a knife on his waist,
attached by a rope, and carrying a walking stick. After talking
with his mother, the decedent walked back toward his house with
his dog. On the way, he came in contact with Defendant and
Defendant’s son, Brandon, who were riding together in a golf
cart to get the mail. Defendant was seated in the driver’s seat,
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and Brandon was seated in the passenger seat. Defendant was
carrying a loaded, 9-millimeter Beretta pistol in his right
pocket and an audio cassette player in his left hand. Brandon
had a loaded AR-15 semi-automatic rifle between his legs.
While Defendant and Brandon were checking the mail, they
saw the decedent walking toward the golf cart. Shortly
thereafter, Defendant and the decedent started arguing, and
Defendant began recording with his cassette player. Speaking to
the decedent, Defendant asked, “Do you have anything to add
about murdering my family last night?” The decedent responded,
“No, I plainly told you.” Defendant repeated his question and
the decedent told him to “shut the fuck up.” More arguing
occurred, and Defendant told the decedent to “stay away from
us.” The decedent responded, “You know I’ll whoop your ass and
put you on the ground if you try to stab me in the back; now get
over here and get some.” Defendant responded by saying, “I’ll
put you in the grave; in the morgue, in the morgue,
motherfucker.”
The argument continued, and the decedent put his hands on
the golf cart, shaking it. Defendant asked Brandon to give him
the AR-15. As Brandon attempted to hand it to his father, the
decedent took the AR-15 and stood back, pointing it at Defendant
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and his son. Brandon got out of the golf cart, but Defendant
remained seated. After exchanging more insults with the
decedent, Defendant stepped out of the golf cart, pulled out his
pistol, and fired approximately seven shots at the decedent in
rapid succession.1 Afterward, Defendant said to the decedent,
“What about now, Bozo? What about now, motherfucker, huh?” He
then proclaimed that the decedent “attacked us, by God” and
returned to his house with his weapons and son.
The decedent died shortly thereafter, at 12:35 p.m.
According to the medical examiner, some of the bullets entered
the decedent’s arm and then reentered his torso, making it
difficult to calculate an exact number of shots. Other bullets
entered the decedent’s back. The medical examiner testified that
there were gunshot wounds in the upper part of the decedent’s
buttocks, going from left to right. There were also two gunshot
wounds in the decedent’s torso. The lower wound was fatal,
resulting from a “straight-on shot” into the decedent’s back
that went through his lung and into his heart.
Defendant was eventually taken into custody and charged
with first-degree murder. At trial, Defendant testified that the
decedent was pointing the AR-15 at Brandon’s head and he shot
1 The shots were fired in 1.82 seconds.
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the decedent “out of instinct, to protect my son.” At the close
of all the evidence and after the parties’ arguments, the trial
court instructed the jury on, inter alia, self-defense and
defense of a family member. On 8 August 2012, Defendant was
convicted of first-degree murder and sentenced to life
imprisonment without parole. He gave notice of appeal that same
day.
Discussion
Defendant makes two arguments on appeal. First, he contends
that the trial court abused its discretion by excluding the
expert testimony offered by Defendant regarding the doctrine of
“use of force,” in violation of his right to present a defense.
Second, Defendant asserts that the trial court erred by
preventing him from introducing evidence of the decedent’s
“proclivity toward violence based on his reputation and his
previous violent actions.” We find no error.
I. Expert Witness Testimony on Use of Force
It is well-established that trial
courts must decide preliminary questions
concerning the qualifications of experts to
testify or the admissibility of expert
testimony. . . . In this capacity, trial
courts are afforded wide latitude of
discretion when making a determination about
the admissibility of expert testimony. Given
such latitude, it follows that a trial
court’s ruling on the qualifications of an
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expert or the admissibility of an expert’s
opinion will not be reversed on appeal
absent a showing of abuse of discretion.
Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d
674, 686 (2004) (citations and quotation marks omitted). “Abuse
of discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.” State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
A. Voir Dire
On 30 July 2012, the State filed a motion in limine to
exclude the testimony of Dave F. Cloutier. A voir dire hearing
on that motion was held at trial. During the hearing, Cloutier
testified on the “science” of “use of force” as applied to the
facts of this case. Specifically, he discussed the concepts of
(1) “reaction time,” (2) an individual’s response to perceived
lethal and nonlethal force, (3) “force variables,” (4) “pre-
attack cues,” and (5) “perceptual narrowing.” Cloutier described
“reaction time” as “the time it takes [to react] once the brain
has perceived a threat — [the perception of such a threat is]
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usually visual, by the eyes, although it could be with other
senses.”2 He defined “force variables” as
circumstances and events that would . . .
influence someone’s decision of a use of
force that was necessary to overcome a
perceived threat. That could include the
actual weapons involved, the number of
weapons, the number of individuals, the
environment, the time of day, the lighting,
any number of variables.
“Pre-attack cues” are “those exhibitions by an individual which
an individual would actually perceive or view and make the
assumption that an attack was likely.” For example, “a glaring
look in [an individual’s] face, a clinched jaw, . . . clinched
fist,” or bringing a weapon up as if to fire. Finally,
“perceptual narrowing” is “the reason people have a tendency to
not have a total recall of what actually may have happened
[during an altercation].” According to Cloutier, perceptual
narrowing could result in difficulty remembering, for example,
“the number of shots that may have been fired in an actual
lethal encounter.”
2 He elaborated: “[B]y the time the individual perceives a
threat, recognize[s] it as a threat, and makes the decision to
begin to use some technique, tactic, or method to either flee or
fight[, i]t usually takes the average person about three-
quarters of a second to begin to react to some stimulus that
they perceive as a threat. So we utilize that reaction time in
analyzing these various cases.”
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Regarding his experience and training in the field,
Cloutier testified that he had worked in “use of force” since
January of 1991. At the time of the trial, he was a “private
citizen” who provided “expert witness services in regards to use
of force . . . .” Before that, he worked for the North Carolina
Department of Justice as an instructor “for subject control and
arrest techniques for law enforcement training . . . ” and
served in the military. He holds a bachelor of science degree in
criminal justice from North Carolina Wesleyan College and is a
graduate of the FBI National Academy. He has held certifications
in (1) firearms instruction, (2) subject control and arrest
techniques, (3) specialized subject control, and (4) unarmed
self-defense. At the time of trial, however, he was certified
only as an “FBI defensive tactics instructor . . . .” Before the
trial, Cloutier had been admitted as an expert approximately
twenty-two times in state and federal court. Cloutier does not
have a Ph.D or any medical degree.
Applying the use of force doctrine to the facts in this
case, Cloutier offered the following observations: (1) The
decedent exhibited a number of pre-attack cues that might have
indicated a forthcoming assault. (2) “[A]ge, gender, size,
environment, use of a weapon, type of weapon, number of weapons,
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and . . . number of subjects” were “use of force variables”
present in this case and, along with the pre-attack cues, these
factors were “consistent with exhibition by an individual that
an attack was likely imminent.” (3) The rounds fired at the
decedent were fired in “somewhere around 1.8 seconds . . . [,
meaning] it’s very possible and likely that during the course of
firing in that 1.8 seconds that [the decedent] could have, in
fact, [reacted and] turned 90 to 180 degrees, or, in fact, could
have turned 360 degrees,” accounting for the injuries in his
side and back. In addition, (4) Defendant was possibly affected
by perceptual narrowing.
When Cloutier was questioned about the scientific basis for
his opinions, he testified that his knowledge came from
published articles in the field of use of force and the training
he received “by some of those authors and studies that I have
myself been involved in . . . .” He explained that the “Justice
Academy” uses “a number of tests . . . to look at various
principles of use of force . . . .” According to Cloutier, this
information is regularly relied on by people in the field. When
asked to explain the reliability of the information described in
his testimony, Cloutier explained:
The tests, for example, that I have been a
part of performing and been involved in with
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the Justice Academy . . . measure the
physiological results of an individual under
stress and their reaction time; once they
perceive a threat, how long it takes to
react and what type of reaction they have.
Those results of those studies that we have
performed at the Justice Academy are
consistent with the studies that have been
performed and published on a national basis.
According to Cloutier, these tests have “remained consistent
over time.” When asked to describe the “known or potential rate
of error,” however, Cloutier admitted that he did not know.3
At the end of the hearing, the trial court sustained the
State’s objection and excluded Cloutier’s testimony in its
entirety. The court pointed out that (1) much of Cloutier’s
report constituted impermissible witness bolstering, (2) certain
of Cloutier’s opinions were based on medical knowledge that he
was not qualified to discuss, (3) Cloutier’s opinion on use of
force variables would not be helpful to the jury because most
individuals are able to recognize pre-attack cues and other use
of force variables, and (4) Cloutier is not competent to testify
about reaction times. In addition, the court determined that
Cloutier’s “testimony [was] not based on sufficient facts or
data. . . . [,] not the product of reliable principles or
3 Cloutier later stated: “I have not done[ a] statistical
analysis on any of these studies or read a statistical
analysis.”
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methods. . . . [, and] simply a conclusory approach that [could
not] reasonably assess for reliability.” The court noted that
Cloutier’s testimony had not been subject to peer review,
Cloutier had no knowledge of a potential rate of error regarding
any of the use of force factors, and Cloutier did not recognize
or apply the variables that could have affected his opinions in
the case. As a result, the court concluded that Cloutier’s
“opinions . . . [were] . . . based on speculation. He[ was] just
guessing and overlooking a very important part of what could
very well affect his opinions in this case.” It also found,
“[n]otwithstanding all those findings,” that the probative value
of Cloutier’s testimony was “substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury” under Rule 403 of the North Carolina Rules
of Evidence.
B. Legal Background
Rule 702 states, in pertinent part, that
(a) if scientific, technical or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion,
or otherwise, if all of the following apply:
(1) The testimony is based upon
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sufficient facts or data.
(2) The testimony is the product
of reliable principles and
methods.
(3) The witness has applied the
principles and methods reliably to
the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2013). Rule 702(a) was
amended to read as quoted above, effective 1 October 2011. 2011
N.C. Sess. Laws 400, § 1(c) (S.B. 33); 2011 N.C. Sess. Laws 283,
§ 1.3 (H.B. 542). The earlier version of the rule did not
include the criteria listed in subsections (1)–(3), but was
otherwise the same. See id.
Though our appellate courts have not addressed in detail
the significance of the October 2011 amendment to Rule 702, this
Court has noted that the current, amended “language . . .
implements the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579,[] 125 L. Ed. 2d 469
(1993).” Wise v. Alcoa, Inc., __ N.C. App. __, __ n.1, __ S.E.2d
__, __ n.1 (2013); see also State v. Hudson, __ N.C. App. __,
721 S.E.2d 763 (2012) (unpublished opinion), available at 2012
WL 379936. That observation comports with the bill analysis
provided to the Senate Judiciary Committee which reviewed the
amendment. See Committee Counsel Bill Patterson, 2011–2012
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General Assembly, House Bill 542: Tort Reform for Citizens and
Business 2–3 n.3 (8 June 2011) (“As amended, Rule 702(a) will
mirror Federal Rule 702(a), which was amended in 2000 to conform
to the standard outlined in Daubert . . . .”); see generally
Fed. R. Evid. 702; Daubert, 509 U.S. at 589, 125 L. Ed. 2d at
469. This new language represents a departure from our previous
understanding of Rule 702, which eschewed the Supreme Court’s
decision in Daubert. Howerton, 358 N.C. at 469, 597 S.E.2d at
693 (“North Carolina is not, nor has it ever been, a Daubert
jurisdiction.”). Given the changes wrought by our legislature,
however, it is clear that amended Rule 702 should be applied
pursuant to the federal standard as articulated in Daubert.
In the Daubert case, the United States Supreme Court
defined a gatekeeping role for trial judges. Daubert, 509 U.S.
at 597, 125 L. Ed. 2d at 485 (“We recognize that [such a role],
no matter how flexible, inevitably on occasion will prevent the
jury from learning of authentic insights and innovations.”).
Accordingly, an expert must first base his testimony on
“scientific knowledge,” which “implies a grounding in the
methods and procedures of science,” in order for that testimony
to be admissible. Id. at 590, 125 L. Ed. 2d at 480–81. The Court
explained this requirement in detail as follows:
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[T]he word “knowledge” connotes more than
subjective belief or unsupported
speculation. The term applies to any body of
known facts or to any body of ideas inferred
from such facts or accepted as truths on
good grounds. . . . [I]n order to qualify as
“scientific knowledge,” an inference or
assertion must be derived by the scientific
method.4 Proposed testimony must be supported
by appropriate validation — i.e., “good
grounds,” based on what is known. In short,
the requirement that an expert’s testimony
pertain to “scientific knowledge”
establishes a standard of evidentiary
reliability.
Id. at 590, 125 L. Ed. 2d at 481 (emphasis added). Second, an
expert’s testimony must assist the trier of fact to understand
the evidence or determine a fact in issue. Id. at 591, 595, 125
L. Ed. 2d at 481, 483–84. “The focus, of course, must be solely
on principles and methodology, not on the conclusions that they
generate.” Id. at 595, 125 L. Ed. 2d at 484 (emphasis added).
It is the trial court’s responsibility to determine
“whether the expert is proposing to testify to (1) scientific
knowledge” and whether that knowledge “(2) will assist the trier
of fact to understand or determine a fact in issue.” Id. at 592,
125 L. Ed. 2d at 482. In deciding whether the proffered
4 The “scientific method” is “[a]n analytical technique by which
a hypothesis is formulated and then systematically tested
through observation and experimentation.” Black’s Law Dictionary
1463–64 (9th ed. 2009).
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scientific theory or technique will assist the trier of fact,
the trial court may consider, among other things, (1) “whether
[a theory or technique] can be (and has been) tested,” (2)
“whether the theory or technique has been subjected to peer
review and publication,” (3) “the known or potential rate of
error . . . and the existence and maintenance of standards
controlling the technique’s operation,” and (4) whether the
theory or technique is generally accepted as reliable in the
relevant scientific community. Id. at 593–94, 125 L. Ed. 2d at
482–83. This inquiry is “a flexible one,” id. at 594, 125 L. Ed.
2d at 483–84, and remains reviewable under the abuse of
discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136,
147, 139 L. Ed. 2d 508, 519 (1997).
C. Analysis
Defendant argues that the trial court erroneously excluded
Cloutier’s testimony under Rule 702 and, in doing so, abused its
discretion. Specifically, Defendant asserts that “use of force
is a science,” based on scientific principles and utilized by
other experts. He states that concepts like “reaction time” are
based on “reliable” studies, which were cited by Cloutier, and
points out that Cloutier unearthed a number of “use of force
variables that came into play in this situation. . . . Most
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important[ly], Cloutier explained that [the decedent] could have
turned 90 to 180 degrees in 1.8 seconds,” the amount of time it
took Defendant to fire the shots. Defendant argues that this
fact, in particular, could have assisted the jury in determining
that Defendant used “defensive force” in the confrontation with
the decedent. Defendant also argues that expert testimony
“should be liberally admitted” and that the trial court
“unfairly interject[ed] itself into the litigation” and
disregarded the liberal admission precept. In conjunction with
the above argument, Defendant contends that the trial court’s
decision to exclude Cloutier’s testimony violated his
constitutional right to present a defense. We disagree.
(1) Rule 702
In Joiner, the United States Supreme Court reviewed a trial
court’s application of the Daubert test. 522 U.S. at 136, 139 L.
Ed. 2d at 508. The respondent-employee worked as an electrician
for the petitioner-employer. Id. at 139, 139 L. Ed. 2d at 514.
By expert testimony, the employee linked the development of his
cancer to his exposure to certain chemicals used by his
employer. Id. at 139–40, 139 L. Ed. 2d at 514. In providing that
testimony, the experts relied on a number of specific scientific
studies. Id. at 143–44, 139 L. Ed. 2d at 517. Nonetheless, the
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trial court excluded the proffered testimony on grounds that it
did not rise above “subjective belief or unsupported
speculation.” Id. at 140, 139 L. Ed. 2d at 515. On appeal, the
circuit court reversed the trial court, citing a general
“preference” for the admission of expert testimony.5 Id. The
United States Supreme Court reversed that decision on writ of
certiorari and affirmed the trial court’s original decision to
exclude the expert testimony. Id. at 141, 139 L. Ed. 2d at 515.
In his argument to the Supreme Court, the employee asserted
that the trial court’s disagreement with the experts’
conclusions was error because the experts had relied on the
specific principles and methodology used in the cited studies,
pursuant to the requirements laid down in Daubert. Id. at 146,
139 L. Ed. 2d at 518. The Supreme Court overruled that argument
and stated that, while the focus of a trial court’s analysis
must be on principles and methodology,
conclusions and methodology are not entirely
distinct from one another. . . . [N]othing
. . . requires a [trial court] to admit
opinion evidence that is connected to
existing data only by the ipse dixit6 of the
5 Such “preference” is not unlike the liberal admission precept
invoked by Defendant in this case.
6 Ipse dixit is Latin for “he himself said it” and defined as
“[s]omething asserted but not proved[.]” Black’s Law Dictionary
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expert. A court may conclude that there is
simply too great an analytical gap between
the data and the opinion proffered.
Id. at 146, 139 L. Ed. 2d at 519 (emphasis added). Citing the
highly deferential standard afforded to a trial court’s decision
to exclude or admit expert testimony, the Court concluded that
the trial court did not abuse its discretion in excluding the
employee’s expert testimony and in determining that the
analytical gap between the data and the opinion in that case was
too great. Id.
In this case, just as in Joiner, the trial court determined
that there was too great an analytical gap between the
authorities cited by Cloutier and his offered opinion.
Specifically, the court concluded that Cloutier’s testimony was
not based on sufficient facts or data or the product of reliable
principles and methods. The trial court also noted that (1) the
testimony served as “simply a conclusory approach that cannot
reasonably assess for reliability” and (2) Cloutier had failed
to provide any known rate of error or show that any of the
referenced studies were the subject of peer review. For those
reasons, the trial court determined that Cloutier’s testimony
was merely “based on speculation” and commented that “[Cloutier]
905 (9th ed. 2009).
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is just guessing and overlooking [variables that] could . . .
affect his opinions in this case.”
Defendant contests the trial court’s conclusions and
asserts that it abused its discretion in coming to those
conclusions, but does not show how the court’s decision was
arbitrarily or manifestly unreasonable. Rather, he argues for
the reasonableness of a different conclusion based on the same
evidence.7 This demonstrates a misunderstanding of the abuse of
discretion standard.
The federal courts have traditionally granted “a great deal
of discretion” to the trial court when determining whether
expert testimony is admissible under Daubert. See, e.g., U.S. v.
Dorsey, 45 F.3d 809 (4th Cir. 1995); Maryland Cas. Co. v. Therm-
O-Disc, Inc., 137 F.3d 780 (4th Cir. 1998) (“Daubert clearly
contemplates the vesting of significant discretion in the
district court with regard to the decision to admit expert
scientific testimony.”). As the State points out in its brief,
Cloutier provided little data to support the reliability of his
proposed methodology. Though Cloutier testified that (1) use of
7 We also note that Defendant does not address the trial court’s
determination that the testimony is inadmissible under Rule 403.
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force has been “tested,” (2) publications exist in the field,8
and (3) the theory is “relied upon regularly,” he provided no
substantive reasons — no specific scientific knowledge, methods,
or procedures — to support those assertions. Indeed, unlike the
experts in Joiner, Cloutier was not even able to cite a single
specific study, merely referring to the existence of studies and
their authors generally. In addition, when the court asked about
the relevant “rate of error,” Cloutier admitted that he knew
nothing about that factor or how it related to his opinions.
A review of the trial transcript indicates that, in
excluding Cloutier’s testimony, the trial court properly applied
the standard laid down by the Supreme Court in Daubert. The
court determined that Cloutier’s testimony was firmly within the
realm of common knowledge and would not be helpful to the jury.
The Court pointed out that Cloutier completely lacked medical
credentials and provided little evidence regarding the
principles or methodology used to come to his conclusions.
Therefore, even if we were to assume that the doctrine of “use
8 Cloutier stated that he had read and even participated in some
of the studies leading to these publications. Nevertheless, he
was completely unable to provide details regarding their
content.
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of force” constitutes scientific knowledge,9 we see no reason to
conclude that the trial court was manifestly unreasonable in
determining that Cloutier’s knowledge of that doctrine —
including the way an individual reacts in a confrontation or the
fact that an individual might turn away when a gun is fired —
was not helpful to the jury. See generally Braswell v. Braswell,
330 N.C. 363, 377, 410 S.E.2d 897, 905 (1991) (“When the jury is
in as good a position as the expert to determine an issue, the
expert’s testimony is properly excludable because it is not
helpful to the jury.”) (citation omitted). In our view, the
court’s decision was well-reasoned, especially given the Daubert
requirements invoked by amended Rule 702. Therefore, Defendant’s
first argument is overruled, and we affirm the trial court’s
decision to exclude Cloutier’s testimony under Rule 702.
(2) Right to Present a Defense
Defendant also contends that the exclusion of Cloutier’s
testimony under Rule 702 violated his constitutional right to
9 We do not offer an opinion as to whether it does. We note,
however, that Cloutier offered scant evidence to support that
fact in this particular case. Merely referencing scientific
studies and explaining the meaning of apparent scholarly terms
like “perceptual narrowing” – without providing a more
substantial basis on which to ground one’s opinion — does not
fit with the Daubert Court’s intent that expert testimony be
based on scientific knowledge.
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present a defense under the Sixth Amendment of the United States
Constitution and Article I, section 23 of the North Carolina
Constitution. We disagree.
The right to present a defense is not absolute. U.S. v.
Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003). Criminal
defendants do not have a right to present evidence that the
trial court, in its discretion, deems inadmissible under the
rules of evidence. See id. (citing Taylor v. Illinois, 484 U.S.
400, 410, 98 L. Ed. 2d 798 (1988) (“The accused does not have an
unfettered Sixth Amendment right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”) (brackets omitted)). Indeed, only
rarely has the Supreme Court “held that the right to present a
complete defense [is] violated by the exclusion of defense
evidence under a state rule of evidence.” Nevada v. Jackson, __
U.S. __, __, 186 L. Ed. 2d 62, 66 (2013). Because we have
determined that the trial court excluded Cloutier’s testimony
within the bounds of our rules of evidence, we hold that
Defendant’s constitutional right to present a defense was not
violated. Defendant’s second argument is therefore overruled.
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II. Character Evidence
Defendant also argues that the trial court erred in
excluding the testimony of Dr. Jerry Brittain, who addressed the
decedent’s alleged proclivity toward violence. We disagree.
A. Voir Dire
At trial, Defendant called Dr. Brittain to the stand as a
lay witness. The State objected, and the trial court conducted a
voir dire examination.
On voir dire, Dr. Brittain discussed meetings he held with
the decedent in June and July of 2011, approximately one year
before the decedent’s death. Referencing his notes from those
meetings, Dr. Brittain testified that the decedent was angry and
frustrated with many “areas” of his life. By his second meeting
with the decedent, Dr. Brittain had begun “to surmise” that the
decedent was dealing with “aggression,” “thoughts of violence,”
and “conflict that he had with the people that were around him.”
In that meeting, Dr. Brittain and the decedent discussed “the
violence,” and Dr. Brittain stressed the need for the decedent
to avoid being either the victim or the perpetrator in a
confrontation. Dr. Brittain also referred to the decedent as “a
very angry man,” but noted that he was taking his medication,
“ha[d] not perpetrated violence,” and, in the decedent’s words,
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was “trying to not become angry and harm someone.” When asked
about the source of the decedent’s anger, Dr. Brittain testified
that it “permeated all of his life,” but noted that the source
was not specifically related to Defendant, who was not discussed
during the meetings.
At the conclusion of voir dire, the trial court excluded
Dr. Brittain’s testimony in its entirety on relevance grounds
and under Rules 403 and 404(a)(2) of the North Carolina Rules of
Evidence.
B. Legal Background and Analysis
Defendant argues that the trial court erred in excluding
Dr. Brittain’s testimony, “[s]imply put, [because] a violent man
is more likely to be the aggressor than a peaceable man.”
Defendant also argues that this error prevented him from
offering important evidence in his defense and, thus, “denied
him his constitutional right to present a defense.” We are
unpersuaded.
(1) Rule 404(a)(2)
Rule 404 provides, in pertinent part, that:
(a) . . . Evidence of a person’s character
or a trait of his character is not
admissible for the purpose of proving that
he acted in conformity therewith on a
particular occasion, except:
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. . .
(2) . . . Evidence of a pertinent
trait of character of the victim
of the crime offered by an
accused, or by the prosecution to
rebut the same, or evidence of a
character trait of peacefulness of
the victim offered by the
prosecution in a homicide case to
rebut evidence that the victim was
the first aggressor.
N.C. Gen. Stat. § 8C-1, Rule 404.
Character evidence is evidence of “[t]he peculiar qualities
impressed by nature or by habit on the person, which distinguish
him from others.” Bottoms v. Kent, 48 N.C. (3 Jones) 154, 160
(1855). A person’s character “can only be known indirectly . . .
by inference from acts. A witness called to prove them, can only
give the opinion which he has formed by his observations of the
conduct of the person under particular circumstances . . . .”
Id. As distinct from reputation, “character is what a man is”
and “reputation is what others say he is.” Kenneth S. Broun, 1
Brandis & Broun on North Carolina Evidence 253 (6th ed. 2004)
(emphasis in original).
“Rule 404(a) is a general rule of exclusion, prohibiting
the introduction of character evidence to prove that a person
acted in conformity with that evidence of character.” State v.
Bogle, 324 N.C. 190, 201, 376 S.E.2d 745, 751 (1989). Such
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evidence may be admitted, however, when testimony regarding a
pertinent character trait of the victim (here, the decedent) is
offered by the defendant in a criminal case. N.C. Gen. Stat. §
8C-1, Rule 404(a)(2). In cases where self-defense is at issue,
evidence of a victim’s violent or dangerous character may be
admitted under Rule 404(a)(2) when “(1) such character was known
to the accused, or (2) the [other] evidence of the crime is all
circumstantial or the nature of the transaction is in doubt.”
State v. Winfrey, 298 N.C. 260, 262, 258 S.E.2d 346, 347 (1979)
(emphasis added); see also State v. Blackwell, 162 N.C. 672, 78
S.E. 316 (1913) (“[Evidence] is . . . competent to show the
character of the deceased as a violent and dangerous man when
the [remaining] evidence is wholly circumstantial and the
character of the encounter is in doubt.”) (emphasis added). This
is because the evidence of the victim’s violent character “tends
to shed some light upon who was the aggressor since a violent
man is more likely to be the aggressor than is a peaceable man.”
Winfrey, 298 N.C. at 262, 258 S.E.2d at 348 (emphasis added).
In this case, the court excluded Dr. Brittain’s testimony
under Rule 404(a)(2) because the witness “didn’t testify as to
any trait or character. He was simply testifying as to a
fact. . . . He . . . was merely reciting what the facts were
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when the victim presented himself [during the meetings].”
Defendant argues, however, that Dr. Brittain’s testimony should
have been admitted pursuant to State v. Everett, 178 N.C. App.
44, 630 S.E.2d 703 (2006), affirmed, 361 N.C. 217, 639 S.E.2d
442 (2007). In that case, the defendant, arguing that she killed
the victim in self-defense, presented evidence that the victim
had committed a separate violent act. Id. at 52, 630 S.E.2d at
708. The trial court excluded that testimony as irrelevant. Id.
at 50, 630 S.E.2d at 707. We reversed the trial court’s decision
under Winfrey and Rule 404(a)(2) and held that the evidence of
the violent act was relevant and admissible, in part, because it
was known by the defendant. Id. Defendant argues under Everett
that, “[w]ithout the testimony from Dr. Brittain, the jury was
unable to understand how [the decedent] was the aggressor. This
evidence established, through specific examples, that [the
decedent] was a violent man and likely was the aggressor. The
exclusion of this evidence by the trial court was error.” We
disagree.
Dr. Brittain’s testimony — as the trial court noted in
excluding it under Rule 404(a) — does not constitute evidence of
the decedent’s character for violence. When asked about his
meetings with the decedent, Dr. Brittain testified to the fact
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that the decedent was an angry person who had thoughts of
violence. He did not, however, testify to his opinion that the
decedent was, inherently, a man of violent character or even a
violent person as distinguished from others. In fact, contrary
to Defendant’s argument on appeal, Dr. Brittain affirmed on
cross-examination that “there was no evidence that [the
decedent] was actually committing any acts of violence[.]”
Rather, “[h]e was just generally frustrated at the system.”
Because Rule 404(a)(2) only allows testimony regarding a
pertinent character trait, the trial court did not err in
excluding Dr. Brittain’s testimony as inadmissible on that
basis.
To the extent that Dr. Brittain’s testimony could be
construed as character evidence, however, we note that this case
is distinct from Everett. In Everett, the evidence of the
victim’s violent act fulfilled one of the Winfrey requirements —
it was known by the defendant — and, therefore, increased the
likelihood that the defendant acted out of self-defense. Dr.
Brittain’s testimony met neither requirement. First, it failed
to show that Defendant was aware of any anger issues or the
alleged violent nature of the decedent. Indeed, Dr. Brittain
clearly stated that the source of the decedent’s anger was not
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Defendant and that Defendant was not even discussed. Second,
there is ample direct evidence regarding the altercation between
the decedent and Defendant. The altercation was recorded on
Defendant’s tape recorder and was the subject of eye-witness
testimony. Such evidence is not circumstantial and, therefore,
does not allow the trial court to admit the evidence under Rule
404(a)(2). Accordingly, Defendant’s argument is overruled.
(2) Rules 401, 402, and 403
Defendant also argues that the trial court erred in
excluding Dr. Brittain’s testimony as to Defendant’s character
for violence because “[the decedent’s alleged] violent character
is relevant as it relates to whether [he] was the aggressor” and
is not unfairly prejudicial under Rule 403 because “[i]ts only
prejudice to the State was its relevance to the defense.” This
argument is without merit.
Rule 401 of the North Carolina Rules of Evidence states
that “‘[r]elevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401. Rule 402 provides that “[a]ll relevant evidence is
admissible, except as otherwise provided by the Constitution of
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the United States, by the Constitution of North Carolina, by Act
of Congress, by Act of the General Assembly or by these rules.
Evidence which is not relevant is not admissible.” N.C. Gen.
Stat. § 8C-1, Rule 402 (emphasis added). Rule 403 provides that
“[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1,
Rule 403. “We review a trial court’s decision to exclude
evidence under Rule 403 for abuse of discretion.” State v.
Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
Because we have already determined that the trial court
properly excluded Dr. Brittain’s testimony as not admissible
under Rule 404(a)(2), we need not address these alternative
bases for exclusion. Nonetheless, we note that Defendant’s
argument does not provide any reason to believe that Judge
Albright acted arbitrarily or was manifestly unreasonable in
determining that “any probative value of this evidence is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Defendant’s
argument is overruled.
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(3) Constitutional Right to Present a Defense
As a part of his preceding arguments, Defendant contends
that the trial court’s exclusion of Dr. Brittain’s testimony
requires a new trial because it violated his constitutional
right to present witnesses in his own defense under Article VI
of the United States Constitution and Article 1, Section 23 of
the North Carolina Constitution. We disagree.
As we noted in section I(C)(2), the right to present a
defense is not absolute and does not apply when a trial court
properly deems evidence inadmissible under the rules of
evidence. Because we have determined that Dr. Brittain’s
testimony was properly excluded by the trial court under Rule
404(a)(2), this argument is overruled.
NO ERROR.
Judges CALABRIA and ELMORE concur.