State v. McGrady

• Decision Date: 21 January 2014
• Docket Number: No. COA13–330.,COA13–330.
• Citation: 753 S.E.2d 361
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Charles Anthony McGRADY.

753 S.E.2d 361

STATE of North Carolina

v.Charles Anthony McGRADY.

No. COA13–330.

Court of Appeals of North Carolina.

Jan. 21, 2014.

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, Chapel Hill, 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 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, 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 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 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 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] 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.”

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, 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, ...