State v. Long ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-922
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 07 CRS 238137-38, 238140
ANTHONY DARRELL LONG
Appeal by defendant from judgments entered 20 February 2013
by Judge C. Thomas Edwards in Mecklenburg County Superior Court.
Heard in the Court of Appeals 22 January 2014.
Roy Cooper, Attorney General, by Gary R. Govert, Assistant
Solicitor General, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
STEELMAN, Judge.
Where defendant raised a diminished capacity defense, the
trial court did not err in allowing an examining psychiatrist,
presented as part of the State’s rebuttal evidence, to testify
as to defendant’s statements upon which her opinion was based.
This testimony did not implicate defendant’s Fifth Amendment
rights concerning self-incrimination. The trial court did not
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err in refusing to charge the jury on the lesser offense of
voluntary manslaughter.
I. Factual and Procedural Background
Anthony Darrell Long (defendant) and Sonia Long (wife) were
married in 2000. As of 16 August 2007, however, defendant and
wife had separated, and wife was living with her boyfriend,
Roderick Phillips (Phillips).
On 16 August 2007, wife, with Phillips and his son Daniel,
drove to defendant’s home in Charlotte to pick up some
paperwork. Wife entered the home while Phillips remained in the
car. After waiting about forty-five minutes, Phillips
approached the door; defendant answered, and informed Phillips
that wife would be out shortly. Phillips returned to his car,
and shortly thereafter defendant emerged from the house, urging
Phillips to rush inside, informing him that wife needed his
help. Phillips, with Daniel, followed defendant into the home.
As Phillips entered the master bedroom, he felt defendant strike
him in the back with something; he turned and saw defendant come
at him and Daniel with a knife. Phillips fled with Daniel. He
did not see wife inside the home.
Police arrived at the home, and discovered wife, almost
completely nude, with a black leather belt tightened around her
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neck. She was pronounced dead. Forensic examination showed
recent sexual contact.
Defendant was charged with the first-degree murder of wife,
attempted first-degree murder of Phillips, assault with a deadly
weapon with intent to kill as to Phillips, and second-degree
sexual offense as to wife.1
Prior to trial, defendant gave notice of his intent to
raise a defense of diminished capacity. The trial court ordered
that defendant submit to a psychological examination by Dr.
Nicole Wolfe. Defendant presented two expert witnesses who
testified on the issue of diminished capacity, Drs. Moire
Artigues and Dan Chartier. Dr. Wolfe testified as to her report
during the State’s rebuttal presentation.
The jury found defendant guilty of first-degree murder
based upon premeditation and deliberation, and felony murder
based upon the sex offense; the jury also found defendant guilty
on all other charges. The trial court sentenced defendant to
life imprisonment without parole for first-degree murder,
followed by a consecutive term of 100-129 months for second-
degree sexual offense, followed by a consecutive term of 151-191
1
Defendant was also charged with second-degree rape. This
charge was dismissed by the State.
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months for attempted murder. The trial court arrested judgment
on the assault conviction.
Defendant appeals.
II. Admission of Statements Made During Examination
In his first argument, defendant contends that the trial
court erred in admitting statements made by him during a
psychological examination into evidence. We disagree.
A. Standard of Review
“[T]he 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).
B. Analysis
Prior to trial, defendant gave notice of his intent to
raise a defense of diminished capacity. The trial court ordered
defendant to submit to a psychological examination by Dr. Nicole
Wolfe. Prior to Dr. Wolfe’s testimony at trial, but subsequent
to the testimony of defendant’s experts, defendant raised the
following objection:
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I would certainly object to any statements
made by Mr. Long in this case from Dr.
Wolfe's interviews that were conducted
during January when I was actually there.
. . .
Certainly we don't object to the state
asking what questions were asked. We would
just object to quotations on what Mr. Long
said in response to those questions by Dr.
Wolfe on those different interviews that
happened this January.
The trial court held that “the statements may be received
for the limited purposes of establishing the basis for Dr.
Wolfe's opinion as to the defendant's medical status and for no
other purpose.” The trial court further held that “the
objections to Dr. Wolfe's report in their entirety, then, are
overruled.”
Dr. Wolfe testified that defendant informed her that he had
not been hearing voices or seeing hallucinations on 16 August
2007. She then testified that defendant informed her that he
was “feeling frustrated, confused” that day, that he “had
started drinking again that week,” and that “he hadn't been
exercising, playing with his kids, and that he was having
occasional violent sporadic thoughts of things such as dogs
biting, dragons fighting, thoughts of sometimes when his mom
used to beat him, and even thoughts of various plane crashes or
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train crashes.” Dr. Wolfe then testified that defendant
informed her that, on 16 August 2007, “he had knocked [wife] to
the ground and she did not appear to be resisting, and that he
took her clothes off, had sex with her both vaginally and
anally, and that he estimated that the sexual act lasted
somewhere between five and ten minutes.” Defendant repeatedly
objected to this testimony, and the trial court consistently
overruled the objections.
On appeal, defendant contends that this testimony violated
his privilege against self-incrimination pursuant to the Fifth
Amendment of the United States Constitution. However, we have
previously held that:
When a defendant attempts to establish a
diminished capacity defense and introduces
expert testimony regarding his mental
status, the State may then introduce expert
testimony derived from prior court-ordered
psychiatric examinations in order to rebut
that testimony without implicating the fifth
amendment of the U.S. Constitution or
Article I, Section 23 of the North Carolina
Constitution.
State v. Clark, 128 N.C. App. 87, 94, 493 S.E.2d 770, 774
(1997). In Clark, we cited to our Supreme Court’s decision in
State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated on
other grounds, 497 U.S. 1021, 111 L.Ed.2d 777 (1990), in which
[O]ur Supreme Court specifically addressed
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the constitutional propriety of multiple
psychiatric examinations when used by the
State for the purpose of rebutting a
defendant's assertion of the insanity
defense. There, the Court held that “a fair
opportunity to rebut may include more than
one examination of defendant.”
Clark, 128 N.C. App. at 94, 493 S.E.2d at 774 (quoting
Huff, 325 N.C. at 47, 381 S.E.2d at 661). Our holding in Clark
is explicit. Where a defendant raises a defense of diminished
capacity, and expert testimony regarding his mental state is
introduced, no Fifth Amendment privilege is implicated. In the
instant case, Dr. Wolfe’s testimony was introduced to rebut the
testimony of defendant’s experts. The trial court explicitly
limited the jury’s consideration of Dr. Wolfe’s testimony to
“the purpose of showing intent and motive, as well as for the
purpose of establishing the basis for the formulation of mental-
health diagnosis.” The jury was not to consider defendant’s
statements during Dr. Wolfe’s examination for the purpose of
determining guilt or innocence.
We hold that the trial court did not abuse its discretion
in admitting Dr. Wolfe’s rebuttal testimony concerning
statements by defendant, made pursuant to her examination of
defendant, which formed the basis of her opinion of defendant’s
mental state.
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This argument is without merit.
III. Refusal of Trial Court to Charge on Voluntary Manslaughter
In his second argument, defendant contends that the trial
court erred in declining to instruct the jury upon the lesser
included offense of voluntary manslaughter. We disagree.
A. Standard of Review.
“An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find
defendant guilty of the lesser offense and to acquit him of the
greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,
771 (2002).
B. Analysis
During the jury charge conference, defendant requested that
the trial court instruct the jury on the lesser included offense
of involuntary manslaughter. Defendant cited, as evidence
supporting this charge, Dr. Wolfe’s testimony regarding what
defendant had told her about “the poking in the chest and the
words you'll never see your children again or something to that
effect.” The trial court declined to give the instruction,
holding that those statements – as per defendant’s earlier
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motion – were not to be considered as evidence of guilt or
innocence.
A “killing committed in the heat of passion suddenly
aroused by adequate provocation . . . is voluntary
manslaughter.” State v. Huggins, 338 N.C. 494, 497, 450 S.E.2d
479, 481 (1994) (citations and quotations omitted). However,
“[m]ere words, however abusive or insulting[,] are not
sufficient provocation to negate malice and reduce the homicide
to manslaughter. Rather, this level of provocation must
ordinarily amount to an assault or threatened assault by the
victim against the perpetrator.” Id. at 498, 450 S.E.2d at 482(citations omitted).
In the instant case, defendant cites, as evidence of
provocation, statements that wife poked defendant, and taunted
him that she would keep his children away. We recognize that
the trial court issued a limiting instruction that the
statements constituting this evidence would be admitted solely
to establish the basis for Dr. Wolfe’s report, and not for the
purpose of determining guilt or innocence. Even assuming
arguendo that this limiting instruction had not issued, however,
there was no evidence of adequate provocation sufficient to
support an instruction on voluntary manslaughter. We hold that
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the trial court did not err in declining to instruct the jury on
the lesser included offense of voluntary manslaughter.
This argument is without merit.
NO ERROR.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).