State v. McClary, COA02-504.

• Decision Date: 01 April 2003
• Docket Number: No. COA02-504.,COA02-504.
• Parties: STATE of North Carolina v. Ronald McCLARY.
• Court: North Carolina Court of Appeals

577 S.E.2d 690

157 NC App. 70

STATE of North Carolina v. Ronald McCLARY.

No. COA02-504.

Court of Appeals of North Carolina.

April 1, 2003.

Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.

Miles & Montgomery, by Lisa Miles, Durham, for the defendant.

STEELMAN, Judge.

Defendant was indicted for and found guilty of first degree murder by a jury. The trial court sentenced him to life imprisonment without parole. Defendant appeals his conviction for first degree murder.

The State's evidence at trial tended to show that on 29 April 1999, the defendant shot Mary Mitchell ("Mitchell") twice in the back. In the weeks prior to the shooting, Mitchell had obtained warrants against defendant for making harassing phone calls and for assault by pointing a gun. Defendant also had obtained warrants against Mitchell in March 1999 for unauthorized use of his automobile and for communicating threats.

One or two days before the shooting, Mitchell told the manager of the laundry where she worked that defendant "had threatened her and she had told the police." Otis Blackwell, Mitchell's father, testified that the week before she was killed, Mitchell had told him that defendant was harassing her. He further testified that two nights before her death, Mitchell stayed with him because defendant "had pulled a gun on her."

Brenda Henderson ("Henderson"), Mitchell's co-worker, testified that defendant told her the night before the shooting that he would "rather see her [Mitchell] dead than for anyone else [to have her]." She also testified that defendant had pulled a gun on Mitchell in the past. Angela Rogers ("Rogers"), a relative of defendant, testified that on the morning of 29 April 1999, defendant told her he was "at the end of his rope" and "he was on his way over there to ... shoot Mary [Mitchell]."

Officer Kevin Crowder ("Crowder") of the Burlington Police Department testified that about two hours after Mitchell was shot, defendant telephoned to turn himself in to police. Crowder testified that during the call, defendant stated that Mitchell, her father and a man associated with Mitchell known as "Hawk" all had threatened to kill him.

Defendant's forensic psychiatry expert, Dr. George Corvin ("Dr. Corvin"), testified during defendant's evidence that in his opinion, defendant's capacity to form the specific intent to kill was "substantially reduced" at the time of the murder. Dr. Corvin based this conclusion on interviews with defendant and previous psychiatric evaluations performed by other psychiatrists, including Dr. Gary Hoover ("Dr. Hoover") who had been retained by defendant's previous counsel.

Dr. Robert Rollins ("Dr. Rollins"), chief of forensic psychiatry at Dorothea Dix Hospital, evaluated defendant on 23 January 2001 pursuant to the trial court's order and subsequently "saw [defendant] approximately eleven times while he was [at Dorothea Dix] for brief to longer interviews." Dr. Rollins testified for the State on rebuttal that in his opinion, defendant's mental disorder would not have prevented him from forming the specific intent to kill. Dr. Rollins based his opinion on his own interviews of defendant, interviews by a psychologist and reports of previous psychiatric evaluations by Dr. Corvin and Dr. Hoover.

Also on rebuttal, Todd Davis ("Davis"), an Alamance County jail administrator, testified for the State that defendant voluntarily stated "I'm not trying to get out of my charges, because I'm guilty of killing my girlfriend. I did it and meant to. But I need medical treatment for my mental problem now. I cannot make it without help." Davis sent a letter detailing defendant's statement to the lead investigator, Sergeant Doug Murphy, but did not send it to the district attorney's office.

At defendant's first trial in May 2000, the trial court granted a motion to withdraw by defendant's original counsel and declared a mistrial. At defendant's second trial in March 2001, he made a pre-trial motion in limine to exclude any reference to or questioning regarding a report of Dr. Hoover's psychiatric evaluation of defendant. The trial court ruled that whether Dr. Hoover's report could be used by the State at trial was an evidentiary matter and would not be ruled upon pre-trial.

I.

Defendant first contends the trial court erred in allowing the State to use Dr. Hoover's report and to question Dr. Rollins about it. Specifically, defendant argues that the State should not have been permitted to use this evidence at trial because defendant's original counsel had voluntarily given the report to the State and his new legal counsel did not intend to rely on Dr. Hoover's report or to call him to testify as an expert witness.

A motion in limine will not preserve for appeal the issue of "the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. A criminal defendant is required to interpose at least a general objection to the evidence at the time it is offered." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46

(citations omitted) (emphasis added), cert. denied, 516 U.S. 884, 116 S.Ct. 223, 133 L.Ed.2d 153 (1995); Beaver v. Hampton, 106 N.C.App. 172, 416 S.E.2d 8 (1992) (holding that plaintiffs failed to preserve for appeal the issue of the trial court's alleged error in denying their motion in limine to prohibit introduction of evidence where they failed to object when the evidence was introduced at trial and the trial judge did not conduct a full hearing of evidentiary matters underlying the motion), modified on other grounds, 333 N.C. 455, 427 S.E.2d 317 (1993). If defendant fails to object to the evidence at the time it is offered or otherwise to preserve the question for appeal, our review is limited to plain error. N.C.R.App. P. 10(c)(4) (2001). To receive plain error review, a defendant must "specifically and distinctly" allege plain error in his assignments of error, N.C.R.App. P. 10(c)(4), and a failure to do so results in waiver of plain error review. State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998).

Defendant did not object at the time Dr. Hoover's report first was discussed during the State's examination of Dr. Rollins. Nor did defendant object when the State inquired as to what Dr. Hoover's report indicated about defendant's mental state at the time of the shooting. Defendant did object when the State asked whether Dr. Rollins was able to form an opinion as to defendant's mental state at the time of the shooting, but there is nothing in the record indicating that the grounds of the objection was the inadmissibility of Dr. Hoover's report. Defendant also failed to specifically and distinctly allege plain error. Therefore, we dismiss this assignment of error.

II.

Defendant next argues the trial court erred in denying his motion to continue or, in the alternative, his motion to suppress evidence of his statement to Davis.

N.C. Gen.Stat. § 15A-903(a)(2) (2001) requires the State to divulge any statement by defendant in its possession "no later than 12 o'clock noon, on Wednesday prior to the beginning of the week during which the case is calendared for trial." N.C. Gen.Stat. § 15A-910 (2001) gives the trial court discretion to apply several remedies in the case of failure to comply with discovery requirements, including a grant of continuance or recess or suppression of evidence not properly disclosed. It is within the trial court's sound discretion whether to impose sanctions for a failure to comply with discovery requirements, including whether to admit or exclude evidence, and the trial court's decision will not be reversed by this Court absent an abuse of discretion. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). An abuse of discretion results from a ruling so arbitrary that it could not have been the result of a reasoned decision or from a showing of bad faith by the State in its noncompliance. State v. Nolen, 144 N.C.App. 172, 550 S.E.2d 783, appeal dismissed and cert. denied, 354 N.C. 368, 557 S.E.2d 531 (2001).

The State did not meet the timing requirements in N.C. Gen.Stat. § 15A-903(a)(2) since it provided defendant with the statement on the day his case was called for trial, 12 March 2001. After hearing defendant's motions to suppress and continue, the trial court found that discovery had not been provided in a timely manner and ordered that the trial be recessed until 14 March 2001. This recess was ordered to allow defense counsel the opportunity to discuss the discovery with his client and defendant's psychiatric expert before proceeding with jury selection. The State did not call Davis as a witness until 18 days after it disclosed the statement to defendant. Davis testified as a rebuttal witness in response to testimony from defendant's psychiatric expert which put defendant's capacity to form the requisite intent to kill at issue. The trial court further found that the district attorney's office disclosed the statement as soon as it became aware of it and found that the State did not engage in bad faith in failing to disclose the statement at an earlier time. Based on the foregoing, we hold that the trial court did not abuse its discretion in denying defendant's motions and admitting his statement to Davis into evidence.

III.

Defendant next assigns as error the trial court's denial of his motion to dismiss for insufficient evidence of his intent to kill. When ruling on a motion to dismiss for insufficient evidence, the trial court must determine whether substantial evidence of each element of the crime charged has been presented by the State. State v. Carr, 122 N.C.App. 369, 470 S.E.2d 70 (1996). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted). The trial court must view all evidence in the light most favorable...