NO. COA02-504
NORTH CAROLINA COURT OF APPEALS
Filed: 01 April 2003
STATE OF NORTH CAROLINA
v.
RONALD MCCLARY
Appeal by the defendant from judgment entered 5 April 2001 by
Judge Ronald L. Stephens in Alamance County Superior Court.
Heard
in the Court of Appeals 13 February 2003.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Miles & Montgomery, by Lisa Miles, for the defendant.
STEELMAN, Judge.
Defendant was indicted for and found guilty of first degree
murder
by
a
jury.
The
imprisonment without parole.
trial
court
sentenced
him
to
life
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
1999
Mitchell
in
March
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
-2and 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.
defendant,
testified
Angela Rogers (“Rogers”), a relative of
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
-3previous 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]
testified
for
for
the
brief
State
to
longer
on
interviews.”
rebuttal
that
in
Dr.
his
Rollins
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.
to.
I did it and meant
But I need medical treatment for my mental problem now.
cannot make it without help.”
I
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
evaluation of defendant.
report
of
Dr.
Hoover’s
psychiatric
The trial court ruled that whether Dr.
-4Hoover’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, 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
-5question for appeal, our review is limited to plain error.
App.
P.
10(c)(4)
(2001).
To
receive
plain
error
N.C.R.
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
-6remedies
in
requirements,
the
case
including
of
a
failure
grant
of
to
comply
with
continuance
suppression of evidence not properly disclosed.
or
discovery
recess
or
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.
Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988).
State v.
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.
-7The 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
evidence,
ruling
the
trial
on
a
court
motion
must
to
dismiss
determine
for
whether
insufficient
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 to the State and draw all reasonable inferences in the
State’s favor.
State v. Patterson, 335 N.C. 437, 439 S.E.2d 578
(1994).
First-degree murder is the unlawful killing of a human being
with malice, premeditation and deliberation. N.C. Gen. Stat. § 1417 (2001); State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979).
Premeditation means
some
length
of
Deliberation means
executed by one in a
thought beforehand for
time,
however
short.
an intention to kill
cool state of blood, in
-8furtherance of a fixed design to gratify a
feeling of revenge or to accomplish some
unlawful purpose and not under the influence
of a violent passion suddenly aroused by some
lawful or just cause or legal provocation.
Ruof, 296 N.C. at 636, 252 S.E.2d at 728 (citations omitted).
“Circumstances to consider in determining whether a killing was
premeditated and deliberate include: the conduct and statements of
the defendant before and after the killing, ill-will or previous
difficulty between the parties, and evidence that the killing was
done in a brutal manner.”
State v. Coplen, 138 N.C. App. 48, 59,
530 S.E.2d 313, 321 (citation omitted), cert. denied, 353 N.C. 677,
545 S.E.2d 438 (2000).
necessary
constituent
“Since a specific intent to kill is a
of
the
elements
of
premeditation
and
deliberation, proof of premeditation and deliberation is also proof
of intent to kill.”
State v. Lowery, 309 N.C. 763, 768, 309 S.E.2d
232, 237 (1983) (citation omitted).
In this case, Mitchell and defendant had obtained warrants
against each other, and the State presented testimony of several
witnesses regarding the ill-will between Mitchell and defendant.
Rogers testified that defendant told her he was going to shoot
Mitchell, and Henderson testified defendant stated that he would
rather see Mitchell dead.
Further, defendant shot Mitchell twice
in the back as she tried to run away from him.
This evidence,
viewed in the light most favorable to the State, was sufficient to
demonstrate
defendant’s
premeditation
therefore, to show his intent to kill.
and
deliberation
and,
We hold the trial court did
not err in denying defendant’s motion to dismiss for insufficient
-9evidence.
IV.
Finally, defendant contends the trial court committed plain
error in allowing Dr. Rollins to give his opinion as to defendant’s
mental state at the time of the shooting since the opinion exceeded
the scope of his evaluation of defendant and was without proper
foundation.
Defendant further argues that allowing Dr. Rollins to
give his opinion deprived him of his sixth amendment right to
assistance of counsel, citing Estelle v. Smith, 451 U.S. 454, 68 L.
Ed. 2d 359 (1981).
In Estelle, the defendant did not place his mental state at
issue or otherwise present psychiatric evidence.
468, 68 L. Ed. 2d at 365 n.1, 372.
sua
sponte,
a
pre-trial
at 365.
The trial court had ordered,
psychiatric
defendant’s capacity to stand trial.
Id. at 457 n.1,
evaluation
to
determine
Id. at 456-57, 68 L. Ed. 2d
The United States Supreme Court held that the defendant
was denied his sixth amendment right to assistance of counsel when
the State introduced the psychiatrist’s testimony to show the
defendant’s future dangerousness because the defendant’s counsel
was not notified in advance that the evaluation would encompass
that issue.
Id. at 471, 68 L. Ed. 2d at 374.
The Estelle Court
reasoned that because the defendant’s counsel did not have advance
notice of the scope of the psychiatric evaluation, the defendant
could not consult properly with his counsel regarding the decision
to submit to the evaluation or the possible use of the results.
Id. at 470-71, 68 L. Ed. 2d at 374.
-10In State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), sentence
vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990),
our Supreme Court considered whether a defendant’s sixth amendment
right to effective assistance of counsel was violated by the
admission of rebuttal testimony by the State’s psychiatric expert
who had performed an evaluation of the defendant pursuant to a
court order.
In Huff, the court relied upon the United States
Supreme Court decision in Buchanan v. Kentucky, 483 U.S. 402, 97 L.
Ed. 2d 336, reh’g denied, 483 U.S. 1044, 97 L. Ed. 2d 807 (1987).
The defendant in Buchanan claimed his sixth amendment right to
assistance of counsel had been denied because his counsel did not
anticipate
that
the
results
of
the
psychiatric
examination
requested by defendant would have been used at trial to rebut his
affirmative defense of extreme emotional disturbance.
483 U.S. at 424, 97 L. Ed. 2d at 356.
Buchanan,
The Buchanan Court noted
that the purpose of the sixth amendment is to protect a defendant’s
right to effective consultation with counsel, which is “based on
counsel’s
being
proceeding.”
informed
about
the
scope
and
Id. at 424, 97 L. Ed. 2d at 357.
nature
of
the
However, the
Buchanan Court found that the defendant’s counsel was informed as
to the scope and nature of the proceeding since he had placed the
defendant’s mental condition at issue by arguing the extreme
emotional disturbance defense. Id. at 424-25, 97 L. Ed. 2d at 357.
Counsel must have anticipated that the State would use psychiatric
evidence of the defendant’s mental condition to rebut this defense.
Id. at 425, 97 L. Ed. 2d at 357.
Therefore, the defendant’s sixth
-11amendment right to assistance of counsel had not been violated.
Id.
Adopting the Buchanan rationale, the Huff Court stated that
because the defendant placed his mental status at issue by arguing
an insanity defense, “‘he would have to anticipate the use of
psychological evidence by the prosecution in rebuttal.’” Huff, 325
N.C. at 49, 381 S.E.2d at 662 (quoting Buchanan, supra, 483 U.S. at
425, 97 L. Ed. 2d at 357).
Our Supreme Court also noted that there
was no contention that the defendant did not have the opportunity
to confer with his counsel and to discuss whether to submit to an
examination.
Id. at 49, 381 S.E.2d at 662-63.
Huff held that
there was no violation of the defendant’s right to effective
assistance of counsel.
Id. at 49, 381 S.E.2d at 663.
The present case is controlled by our Supreme Court’s decision
in Huff, and not by Estelle.
Here, defendant filed a motion to
continue the trial in this case on 17 January 2001 based on the
results of a psychiatric examination by defendant’s own expert, Dr.
Corvin.
This examination concluded that defendant suffered from
“psychotic symptoms” and “major depression” and that his trial
should be delayed for treatment of his psychiatric illness.
The
trial court found that this motion raised the issue of defendant’s
capacity to proceed and allowed the motion to continue.
On its own
motion, the trial court ordered defendant committed to Dorothea Dix
Hospital for evaluation of his capacity to proceed.
Defendant and
his counsel were present during the trial court’s consideration of
the motion to continue and its order for commitment and did not
-12enter any objection.
Defendant placed his mental condition at issue first by moving
to continue the trial due to his psychiatric illness, and then by
asserting the defense of diminished capacity and his inability to
formulate the intent to kill.
Defendant submitted affidavits and
presented expert psychiatric testimony on these issues to the trial
court.
Defendant submitted to the psychiatric examination ordered
by the trial court and did not allege that he did not have an
opportunity to consult with his counsel regarding the scope of the
examination.
Based on our Supreme Court’s ruling in Huff, supra,
we find that defendant’s right to counsel was not affected by the
admission of Dr. Rollins’ testimony on rebuttal.
N.C. Gen. Stat. § 15A-1226 allows each party to “introduce
rebuttal evidence concerning matters elicited in the evidence in
chief of another party,” N.C. Gen. Stat. § 15A-1226(a) (2001), and
gives the trial court the discretion to allow “any party to
introduce additional evidence at any time prior to the verdict.”
N.C. Gen. Stat. § 15A-1226(b); see also State v. Johnston, 344 N.C.
596, 605, 476 S.E.2d 289, 294 (1996) (“The State has the right to
introduce
evidence
defendant....”)
to
rebut
or
explain
evidence
elicited
by
The trial court’s decision to admit rebuttal
evidence will not be reversed by this Court absent an abuse of
discretion.
State v. Anthony, 354 N.C. 372, 555 S.E.2d 557, cert.
denied, 354 N.C. 575, 559 S.E.2d 184 (2001).
Our review of the
record reveals no such abuse of discretion where the defendant
“opened the door” by introducing evidence on the issue of his
-13capacity to formulate the intent to kill and had the opportunity to
fully cross-examine and re-cross-examine Dr. Rollins.
As to defendant’s contention that Dr. Rollins’ opinion lacked
proper foundation, we cannot agree.
Defendant stipulated to Dr.
Rollins’ qualifications as a forensic psychiatrist.
Dr. Rollins
personally saw defendant approximately eleven times and reviewed
psychiatric evaluations performed by other psychiatrists, including
defendant’s own experts.
The opinions and evaluations of other
doctors have been held to be a proper basis for an expert opinion
under N.C. Gen. Stat. § 8C-1, Rule 703 (2001).
State v. Daniels,
337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135,
130 L. Ed. 2d 895 (1995); Donavant v. Hudspeth, 318 N.C. 1, 347
S.E.2d 797 (1986); State v. Wade, 296 N.C. 454, 251 S.E.2d 407
(1979).
Although Dr. Rollins evaluated defendant by court order
for
purpose
the
of
determining
his
capacity
to
proceed,
his
personal observations taken together with the other materials
considered
provided
an
adequate
basis
for
his
opinion
that
defendant was capable of forming the requisite intent to kill at
the time of the shooting.
We find the trial court did not err in allowing Dr. Rollins to
give his opinion as to defendant’s mental state at the time of the
shooting, and, therefore, we hold the trial court did not commit
plain error.
NO ERROR.
Judges McGEE and HUDSON concur.
