State v. McGrady

• Decision Date: 10 June 2016
• Docket Number: No. 72PA14,72PA14
• Citation: 787 S.E.2d 1,368 N.C. 880
• Parties: STATE of North Carolina v. Charles Anthony MCGRADY
• Court: North Carolina Supreme Court

368 N.C. 880

787 S.E.2d 1

STATE of North Carolina

v.Charles Anthony MCGRADY

No. 72PA14

Supreme Court of North Carolina.

Filed 10 June 2016

Roy Cooper, Attorney General, by Gary R. Govert, Assistant Solicitor General, and Robert C. Montgomery, Senior Deputy Attorney General, for the State.

M. Gordon Widenhouse Jr., Chapel Hill, for defendant-appellant.

Zaytoun Law Firm, PLLC, Raleigh, by Matthew D. Ballew ; Robert P. Mosteller, UNC Chapel Hill School of Law, Chapel Hill; Donald H. Beskind, Duke University School of Law, Durham; Patterson Harkavy LLP, Raleigh, by Burton Craige ; and Office of the Appellate Defender, by John F. Carella, Assistant Appellate Defender, for North Carolina Advocates for Justice, amicus curiae.

McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness, Elizabethtown, for National Association of Police Organizations, Southern States Police Benevolent Association, and North Carolina Police Benevolent Association, amici curiae.

MARTIN, Chief Justice.

This appeal arises from defendant Charles Anthony McGrady's first-degree murder conviction for the shooting death of his cousin James Allen Shore Jr. Defendant admitted to shooting Mr. Shore. The central issue at trial was whether defendant shot and killed Mr. Shore in lawful defense of himself and his adult son Brandon McGrady. Defendant sought to introduce expert witness testimony on this issue. We allowed discretionary review to address whether amended Rule 702(a) of the North Carolina Rules of Evidence now incorporates the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and whether the trial court abused its discretion in excluding the testimony of defendant's expert under the amended rule.

I

Defendant and his cousin Mr. Shore lived in mobile homes across the street from each other in Hays, North Carolina. Various other members of their family also lived nearby. The two men had a combative history, having engaged in multiple verbal and physical altercations. Defendant testified that, on the evening of 19 December 2011, Mr. Shore threatened to kill defendant and his family. The following day, defendant was driving his golf cart between his home and his mailbox with his son Brandon in the passenger seat. Brandon had an AR–15 assault rifle with him, and defendant had a 9–millimeter Beretta handgun in his pocket. Defendant was also carrying an audio cassette recorder.

After stopping at his mailbox and starting to drive toward Brandon's mailbox down the road, defendant saw Mr. Shore in the distance. Defendant testified that Mr. Shore began yelling at him and moving toward the golf cart. Defendant turned on the tape recorder and stopped the golf cart. The tape recorder captured much of the argument that ensued between defendant and Mr. Shore. Defendant accused Mr. Shore of threatening to kill his family the night before. Mr. Shore accused defendant of shining a spotlight on him that same night. (A witness testified that defendant had previously shined an assault rifle's laser sight on Mr. Shore.) Defendant said to Mr. Shore, "You stole from me, you motherf- - -er!" After more arguing, Mr. Shore said to defendant, "Get over here and get you some!" Defendant responded, "I'll put you in the grave, man; I'll put you in the morgue, motherf- - -er!" Brandon testified that Mr. Shore then walked up to the golf cart, put his hands on the roof, and began shaking the cart.

According to defendant, as the argument continued, Mr. Shore threatened Brandon and defendant with a knife, causing defendant to ask Brandon to hand him the AR–15 in an attempt to "defuse the situation." Defendant testified that, as Brandon was handing the rifle to him, Mr. Shore dove into the golf cart, grabbed the rifle, and pulled it away from defendant. Another witness testified that Mr. Shore tried to grab the rifle but did not take it from defendant. According to defendant, Brandon exited the golf cart and began moving toward Mr. Shore, who then pointed the rifle at Brandon's head. Defendant exited the golf cart, removed the Beretta pistol from his pocket, and fired it approximately seven times at Mr. Shore, hitting him four or five times in the front and side and twice in the back. Defendant then said, "What about now, Bobo? What about now, motherf- - -er?"¹ Mr. Shore died from these gunshot wounds

before he could be taken to the hospital. Defendant was indicted for first-degree murder and tried noncapitally.

At trial, defendant claimed that he shot Mr. Shore in defense of himself and his son. He sought to call Dave Cloutier as an expert in "the science of the use of force" to testify in support of this claim. The State objected, and the trial court held a voir dire hearing. After hearing Mr. Cloutier's voir dire testimony and reviewing his expert report, the trial court sustained the State's objection and ruled that Mr. Cloutier's expert testimony did not meet the standard for admissibility set forth in Rule 702(a) of the North Carolina Rules of Evidence. Following trial, the jury unanimously found defendant guilty of first-degree murder, and the trial court sentenced him to life in prison without the possibility of parole. Defendant entered notice of appeal in open court.

Before the Court of Appeals, defendant argued that the trial court ignored the liberal standard that Rule 702(a) establishes and abused its discretion in excluding Mr. Cloutier's proposed testimony. State v. McGrady , 232 N.C.App. 95, 103, 753 S.E.2d 361, 368 (2014). The Court of Appeals held that the 2011 amendment to Rule 702(a) effectively adopted the standard set forth in Daubert, id. at 101, 753 S.E.2d at 367, and that the trial court did not abuse its discretion in applying that standard, id. at 105–06, 753 S.E.2d at 369–70. The Court of Appeals rejected defendant's arguments and found no error in defendant's conviction. Id. at 106, 110–11, 753 S.E.2d at 370, 373. We allowed defendant's petition for discretionary review and now affirm the decision of the Court of Appeals.²

II

Our first task is to determine the correct interpretation of Rule 702(a) of the North Carolina Rules of Evidence, as it was amended in 2011. We hold that the 2011 amendment adopts the federal standard for the admission of expert witness testimony articulated in the Daubert line of cases. The General Assembly amended North Carolina's rule in 2011 in virtually the same way that the corresponding federal rule was amended in 2000. It follows that the meaning of North Carolina's Rule 702(a) now mirrors that of the amended federal rule.

The General Assembly has the power to create and modify rules of evidence for the superior and district courts. See N.C. Const. art. IV, § 13 (2); State v. Scoggin , 236 N.C. 19, 23, 72 S.E.2d 54, 56–57 (1952) (deferring to the General Assembly for the creation of a new rule of evidence); see also State v. Smith , 312 N.C. 361, 366, 323 S.E.2d 316, 319 (1984) (recognizing that the General Assembly can create new exceptions to the hearsay rule). When the General Assembly amended Rule 702(a) in 2011, its federal counterpart already had a settled meaning.

In 1993, the United States Supreme Court interpreted Rule 702 of the Federal Rules of Evidence in Daubert . See 509 U.S. at 588–98, 113 S.Ct. 2786. The Court held that Rule 702 required federal district courts to determine, before they admitted expert testimony, "that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786. This determination entailed "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592–93, 113 S.Ct. 2786. According to the Court, Rule 702 gave federal district courts a "gatekeeping role." Id. at 597, 113 S.Ct. 2786. The Court further clarified the Daubert standard in General Electric Co. v. Joiner , 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The Court indicated that these three cases established "exacting standards of reliability" for the admission of expert testimony. Weisgram v. Marley Co. , 528 U.S. 440, 455, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000).

In 2000, the Supreme Court adopted an amendment to Federal Rule 702. Amendments to Federal Rules of Evidence , 529 U.S. 1189, 1191, 1195 (2000). This amendment added three requirements governing the admission of expert testimony to the text of the rule: "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Id. at 1195.

The new text did not expressly mention Daubert , Joiner , or Kumho , or use precise language from those three cases. But the note from the Advisory Committee on the Federal Rules of Evidence that accompanied the amendment stated that the federal rule was amended to incorporate the standard delineated by those cases.³ See Fed. R. Evid. 702 advisory committee's note to 2000 amendment (" Rule 702 has been amended in response to Daubert ... and to the many cases applying Daubert , including Kumho ....") (also citing, inter alia, Joiner ). And federal appellate courts confirmed that the changes to Rule 702 had precisely that effect. See, e.g. , United States v. Diaz , 300 F.3d 66, 73 (1st Cir. 2002) ("The three numbered criteria were added to Rule 702 in a recent amendment codifying the Supreme Court's decision in Daubert ... and its progeny, including Kumho ...."); Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 n. 1 (4th Cir. 2001) ("As the Advisory Committee Notes indicate, the amendment to Rule 702 is consistent with the district court's gatekeeping function as articulated in Daubert and Kumho Tire ."); see also United...