State v. McGrady

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
 -2-
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,
 -3-
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
 -4-
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.
 -5-
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
 -6-
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]
 -7-
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.”
 -8-
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,
 -9-
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
 -10-
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.”
 -11-
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
 -12-
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
 -13-
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:
 -14-
[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).
 -15-
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
 -16-
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
 -17-
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
 -18-
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).
 -19-
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.
 -20-
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.
 -21-
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.
 -22-
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.
 -23-
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,
 -24-
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
 -26-
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
 -27-
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
 -28-
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
 -29-
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
 -30-
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.
 -31-
(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.