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State v. Thomas

Court of Appeals of North Carolina

April 17, 2018

STATE OF NORTH CAROLINA
v.
COREY ALEXANDER THOMAS

          Heard in the Court of Appeals 9 January 2018.

          Appeal by defendant from judgment entered 17 June 2016 by Judge Ronald L. Stephens in Onslow County Superior Court, No. 14CRS057467

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Patrick S. Wooten, for the State.

          Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant-appellant.

          BRYANT, JUDGE.

         Where the proffered expert testimony would not provide insight to the trier of fact beyond the conclusions that jurors could readily draw from their ordinary experience, the trial court did not abuse its discretion in excluding the testimony. Where there was evidence that defendant was the aggressor, the trial court did not err in instructing the jury on the aggressor doctrine as it relates to self-defense. Where there was insufficient evidence to support restitution in the amount of $3, 360.00 in funeral expenses to Ward's family, we vacate and remand this portion of the trial court's order.

         On 23 July 2014, Ronnie Williams was in the muffler shop that he ran on Bell Fork Road in Jacksonville, North Carolina, when he heard four gunshots. Williams testified that he could not recall the exact time of day he heard the gunshots, but that he believed it was in the afternoon. The first three shots were fired in rapid succession followed by a short pause before the fourth shot. Williams looked outside behind the shop and saw a man running from the area where the shots had been fired. A car pulled up, and the man got into the car. As gunfire was common in the area, Williams went back to work. Just before 7:00 p.m., Williams walked into the field behind his shop to retrieve a hoe he had left outside. He found a body and had his wife call the police.

         Around 7:00 p.m., the first officer responded to the scene. He discovered a male body with blood visible on his back and around the body. He also noticed a shell casing near the victim's head. The victim had been shot in the upper chest, shoulder, abdomen, right flank, and twice in the back. Later, more shell casings were found, all from a 9mm weapon.

         Jennifer Hankins arrived at the scene and related that she was the girlfriend of the deceased, Robert Ward. Ward, who was known to buy and sell drugs, had worked as an informant for one of the detectives who identified Ward as the victim at the scene and informed Hankins of the deceased's identity. Hankins told officers that at about 6:30 p.m. that day, Ward indicated he was going out with Antonio Best to rob a target, and as he did so, he put a 9mm pistol into the pocket of his waistband. Ward and Best hoped to steal as much as $20, 000.00 from their target, defendant Corey Alexander Thomas. Hankins also recalled that Ward had put $80.00 in "flash money" in his pocket. Officers obtained an arrest warrant for Best, charging him with conspiring with Ward to commit robbery with a dangerous weapon.

         Meanwhile, during the afternoon of 23 July 2014, defendant had been to the Liberty Inn to visit Lia Cassell, his sometime-roommate and sexual partner and to whom he also sold heroin. Later, defendant called Cassell asking her to call him a cab but refusing to tell her where he was. Defendant sounded very panicky and said he had shot somebody.

         Ten to fifteen minutes after the phone call, defendant showed up at Cassell's motel room very disheveled, panicky, and with blood on him. Surveillance video from the Liberty Inn showed a Yellow Cab arrive at the rear of the motel around 7:26 p.m.

         Defendant went into the bathroom and cleaned up. He then told Cassell that he had shot someone multiple times and was sure the person was dead. Defendant told Cassell he "wanted to go on the run" and that he wanted Cassell to come with him. Cassell refused and told him she would only help him turn himself in. Defendant left, and Cassell went to the police, told them what she had heard, helped police identify the likely places to which defendant might have run, and allowed officers to search her motel room.

         Defendant was ultimately located and arrested in a motel parking lot in Havelock, North Carolina. The officer who took him into custody testified that defendant complained of a shoulder injury and had a .32-caliber Kel-Tec semiautomatic handgun concealed in his front pocket.

         On 6 June 2015, defendant was indicted by an Onslow County grand jury for first-degree murder. The case came on for trial during the 6 June 2016 session, the Honorable Ronald L. Stephens, Superior Court Judge presiding. Defendant testified at length about the events of 23 July 2014. Among other things, defendant testified that upon meeting Ward and Best, he knew he was being robbed. According to defendant, Ward struck defendant across the head with his pistol and, after a struggle, defendant got control of the gun and "three shots let off in succession: Pow! Pow! Pow!" while Ward was on his knees reaching for the gun. Defendant emptied Ward's pockets taking "everything that looked like it belonged to [defendant]."

         The trial court submitted the case to the jury on second-degree murder and voluntary manslaughter. Defendant was convicted of voluntary manslaughter and sentenced to an active term of imprisonment for sixty-five months minimum to ninety months maximum. Restitution in the amount of $3, 360.00 was entered as a civil judgment to be paid as a condition of post-release supervision or work release, if applicable. Defendant appeals.

         On appeal, defendant argues the trial court erred (I) in excluding the testimony of a forensic psychologist about the phenomenon of "fight or flight"; (II) in overruling defendant's objection to an instruction that he would not be entitled to a claim of self-defense if he was the aggressor where no evidence supported such an instruction; and (III) by imposing $3, 360.00 in restitution where this amount was not supported by the evidence.

         I

         Defendant argues the trial court erred in excluding the expert opinion testimony of a forensic psychologist about the phenomenon of "fight or flight" as it was relevant to defendant's defense to the charge of voluntary manslaughter. Specifically, defendant contends the trial court incorrectly ruled that this evidence was not relevant or reliable and that it would not assist the jury and that the trial court's exclusion of this testimony violated his constitutional rights. We disagree.

         In contending that the trial court's exclusion of this testimony violated his constitutional rights, defendant argues the standard of review on appeal should be de novo. However, this Court has previously addressed and rejected such an argument. See State v. McGrady (McGrady I), 232 N.C.App. 95');">232 N.C.App. 95, 105-06, 753 S.E.2d 361, 369-70 (2014) (disagreeing with the defendant's contention that the exclusion of his witness's testimony under Rule 702 violated his constitutional right to present a defense under the Sixth Amendment of the United States Constitution and Article I, section 23 of the N.C. Constitution), aff'd 368 N.C. 880');">368 N.C. 880, 787 S.E.2d 1 (2016) ("McGrady II").[1] As such, we review for abuse of discretion. See infra.

         "[T]he trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony." State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). "The trial court's decision regarding what expert testimony to admit will be reversed only for an abuse of discretion." State v. Alderson, 173 N.C.App. 344, 350, 618 S.E.2d 844, 848 (2005) (citing State v. Holland, 150 N.C.App. 457, 461-62, 566 S.E.2d 90, 93 (2002)).

         In affirming this Court's opinion in McGrady II, our Supreme Court set forth the grounds on which an abuse of discretion may be found when a trial court admits or excludes expert testimony:

The trial court then concludes, based on these findings, whether the proffered expert testimony meets Rule 702(a)'s requirements of qualification, relevance, and reliability. This ruling "will not be reversed on appeal absent a showing of abuse of discretion." And "[a] trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). The standard of review remains the same whether the trial court has admitted or excluded the testimony-even when the exclusion of expert testimony results in summary judgment and thereby becomes "outcome determinative."

368 N.C. at 893, 787 S.E.2d at 11 (alteration in original) (internal citations omitted). "In addition, even if expert scientific testimony might be reliable in the abstract, to satisfy Rule 702(a)'s relevancy requirement, the trial court must assess 'whether that reasoning or methodology properly can be applied to the facts in issue.' " State v. Babich, __ N.C.App. __, __, 797 S.E.2d 359, 362 (2017) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593, 125 L.Ed.2d 469, 482 (1993)). "This ensures that 'expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.' " Id. (quoting Daubert, 509 U.S. at 591, 125 L.Ed.2d at 481). "The Supreme Court in Daubert referred to this as the 'fit' test." Id. (citation omitted).

         Rule 702(a) states as follows:

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 ...

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