in the Court of Appeals 9 January 2018.
by defendant from judgment entered 17 June 2016 by Judge
Ronald L. Stephens in Onslow County Superior Court, No.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Patrick S. Wooten, for the State.
Widenhouse, by M. Gordon Widenhouse, Jr., for
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
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.
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.
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.
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.
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.
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.
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.
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]."
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
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.
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.
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"). As such, we
review for abuse of discretion. See infra.
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)).
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
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
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).
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 ...