State v. Mason ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-684
No. COA22-216
Filed 18 October 2022
Rowan County, No. 18 CRS 51710
STATE OF NORTH CAROLINA
v.
DEDRIC MICHELLE MASON
Appeal by defendant from judgment entered 23 September 2021 by Judge Lori
I. Hamilton in Rowan County Superior Court. Heard in the Court of Appeals 23
August 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Kimberly N. Callahan, for the State.
Marilyn G. Ozer for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Dedric Michelle Mason appeals from a judgment entered upon a
jury’s verdict finding her guilty of second-degree murder. On appeal, Defendant
challenges the exclusion of her expert’s testimony and the admission of the lay
opinion testimony of a State’s witness. After careful review, we conclude that
Defendant received a fair trial, free from prejudicial error.
Background
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¶2 Defendant and James Davis were acquaintances, and although Defendant
knew Mr. Davis’s longtime girlfriend, Cheviss Bennett, she had not interacted with
her much prior to the early morning hours of 21 April 2018. However, Defendant’s
friend, Andrea Dillard, had a more complicated history with Mr. Davis and Ms.
Bennett. Sometime before 21 April 2018, Ms. Bennett saw Mr. Davis walking Ms.
Dillard to her car outside of FishZilla Arcade in Salisbury, North Carolina. Ms.
Bennett immediately confronted Mr. Davis in the parking lot; Mr. Davis, Ms.
Bennett, and Ms. Dillard then began “exchanging words” regarding the nature of Mr.
Davis’s interactions with Ms. Dillard. Mr. Davis ended his relationship with Ms.
Bennett.
¶3 At approximately 1:00 a.m. on 21 April 2018, Defendant and Ms. Dillard
arrived at FishZilla. Mr. Davis and Ms. Bennett were already present at the arcade;
having reconciled following their argument with Ms. Dillard, they were playing
together at one of the gaming tables when Defendant and Ms. Dillard arrived. Despite
Ms. Dillard and Ms. Bennett’s acrimonious relationship, Defendant and Ms. Dillard
opted to sit at the same gaming table as Mr. Davis and Ms. Bennett, because sitting
at a table “that’s been paid into” by active players would allow Defendant and Ms.
Dillard “to get money quicker[.]”
¶4 After a few minutes, an argument ensued. Ms. Bennett refused to play with
Defendant and Ms. Dillard, and she repeatedly asked Mr. Davis if he was ready to
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leave. Defendant and Ms. Dillard exchanged insults with Ms. Bennett, and the
conflict escalated, with all three women shouting loudly. Curtis Quick, II, a FishZilla
employee, and Robert Livengood, the security guard, approached the table and
directed the group to quiet down or to leave. Ms. Bennett and Mr. Davis decided to
leave in order to avoid Defendant and Ms. Dillard; Defendant and Ms. Dillard also
decided to leave at the same time. Consequently, the four wound up standing together
at the front counter, waiting to “cash out.” The arguing continued and began to
intensify. At one point, Mr. Davis placed his cell phone on the counter, and Defendant
threw it across the room.
¶5 The argument between Defendant and Mr. Davis then became physical.
Despite video recordings from multiple angles inside the arcade, as well as interviews
of numerous eyewitnesses, the identity of the initial aggressor remains unclear,
although Defendant and Ms. Dillard both claimed that Mr. Davis was the aggressor.
Mr. Quick observed “some intense shoving” and “punches” between Defendant and
Mr. Davis. Mr. Livengood witnessed Defendant “make a strike toward . . . [or] raise
her hand toward” Mr. Davis and saw Mr. Davis push Defendant into the ATM near
the front counter. Ms. Bennett saw Mr. Davis put his arm out near Defendant to push
her back. After some shoving between Defendant and Mr. Davis, Defendant was
knocked into the ATM, hit her head, and landed on the floor.
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¶6 At trial, Ms. Dillard and Defendant testified that Mr. Davis began to attack
Ms. Dillard after she told him to stop punching Defendant while Defendant was on
the floor. However, Ms. Bennett and Mr. Livengood testified that it was Ms. Dillard
who initiated an assault upon Mr. Davis while he was still engaged in the conflict
with Defendant.
¶7 As Mr. Davis and Ms. Dillard were fighting, they tripped over a chair and fell
to the floor. Mr. Davis then put his hands around Ms. Dillard’s throat. Ms. Dillard
testified at trial that in that moment, she believed that her life was in danger: “I
really thought he was going to take my life. He continued to attack me, and as he was
choking me, I’m beginning to black out and I really thought my life was about to be
over.”
¶8 Although Defendant yelled for help, no one in FishZilla responded.
Accordingly, once Defendant was able to stand, she walked over to where Ms. Dillard
and Mr. Davis were fighting on the floor, pulled out her handgun, and fired.
Defendant shot Mr. Davis twice while he was on top of Ms. Dillard, once in the back
and once in the chest. Mr. Davis later died from these injuries.
¶9 Defendant testified that she initially shot Mr. Davis because she believed that
he was going to kill Ms. Dillard. She testified that she fired a second shot because “he
hadn’t reacted to the first shot at all”; after the first shot, Mr. Davis “was still on top
of [Ms. Dillard] and didn’t really move or stop[.]” Defendant also stated that she fired
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twice because she was trained in her concealed carry class “to shoot until there’s no
longer a threat.”
¶ 10 On 14 May 2018, a Rowan County grand jury returned a true bill of indictment
charging Defendant with second-degree murder. The matter came on for trial in
Rowan County Superior Court on 14 September 2021. Defendant maintained
throughout the trial that she had acted in self-defense and defense of others.
¶ 11 On 23 September 2021, the jury returned its verdict finding Defendant guilty
of second-degree murder. The trial court entered judgment upon the jury’s verdict
and sentenced Defendant to a term of 150 to 192 months in the custody of the North
Carolina Division of Adult Correction. Defendant gave notice of appeal in open court.
Discussion
¶ 12 On appeal, Defendant argues that the trial court abused its discretion by (1)
“precluding [her] from putting on expert testimony” concerning the principles of self-
defense and use of force, and (2) admitting Ms. Bennett’s lay opinion testimony as to
whether she believed that anyone was in danger prior to the shooting that evening.
I. Standard of Review
¶ 13 A trial court’s decision regarding whether proffered expert testimony meets the
requirements of Rule 702(a) of the North Carolina Rules of Evidence “will not be
reversed on appeal absent a showing of abuse of discretion.” State v. McGrady, 368
N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citation omitted). “[A] trial court may be
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reversed for abuse of discretion only upon a showing that its ruling was manifestly
unsupported by reason and could not have been the result of a reasoned decision.” Id.(citation omitted). This standard of review applies “whether the trial court has
admitted or excluded the testimony[.]” Id.¶ 14 Similarly, “[w]hether a lay witness may testify as to an opinion is reviewed for
abuse of discretion.” State v. Dove, 274 N.C. App. 417, 422, 852 S.E.2d 681, 685 (2020)
(citation omitted), disc. review denied, 376 N.C. 666, 853 S.E.2d 151 (2021).
II. Expert Opinion
¶ 15 Defendant first argues that the trial court abused its discretion by excluding
her expert’s testimony because the principles of self-defense and use of force “are not
common knowledge[.]” Defendant contends that she was prejudiced by the exclusion
of this testimony, in that it violated her “federal and state constitutional rights to put
on witnesses in [her] defense, to have a fair trial and due process.” We disagree.
A. Defendant’s Proffer of Expert Testimony
¶ 16 In a pretrial hearing on 10 September 2021, Defendant proffered the testimony
of three retired Rowan County law enforcement officers—Investigator Samuel
Henline, Sheriff George Wilhelm, and Sergeant Carl Dangerfield. During voir dire,
the trial court determined that it would reserve its ruling on the admissibility of the
expert testimony until “the time that . . . Defendant seeks to introduce that
testimony” at trial.
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¶ 17 Defendant called Investigator Henline and Sheriff Wilhelm as witnesses at
trial, but did not call Sergeant Dangerfield. Sheriff Wilhelm briefly testified
regarding his experience as a concealed carry instructor. Defendant then proffered
Investigator Henline’s testimony. During his second voir dire, Investigator Henline
first testified as to his qualifications and background. He had over 35 years of
experience in law enforcement and was “a certified general law enforcement
instructor[,]” but his specialty was arson and explosives investigations.
¶ 18 Investigator Henline clarified that his training on the use of deadly force
differed from Defendant’s because he received his training as a law enforcement
officer; as such, he did not testify to the instructions regarding the use of deadly force
that Defendant received in her civilian concealed carry class. Investigator Henline
explained that when he trains law enforcement officers regarding the use of deadly
force, he instructs that “there is not a specified number” of shots to fire in response
to a threat, but rather, they should “shoot until the threat stops.” He noted, however,
that two shots would typically suffice for this purpose. Investigator Henline opined
that civilians are justified in using deadly force “to protect themselves or a third party
from imminent death or bodily -- serious bodily injury.”
¶ 19 Investigator Henline next explained that he typically uses “the scientific
method with a systematic approach” to formulate his opinions, pursuant to which he
collects evidence, conducts interviews, and submits his findings to peer review. In
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preparing for Defendant’s case, he reviewed the State’s discovery, watched the video
recording of the shooting “[s]everal” times, and interviewed Defendant and Ms.
Dillard regarding the shooting. Based on this investigatory work, Investigator
Henline formed the opinion that it was reasonable for Defendant “to believe that she
was being threatened . . . at the time she fired her pistol[.]”
¶ 20 After Investigator Henline’s second voir dire, the trial court concluded:
To allow a witness to testify in the form of an opinion on
the issues of reasonableness of the belief that force was
necessary on the part of the Defendant or an opinion
regarding whether or not the force used was excessive, that
opinion being drawn from the observation of the witness of
the same exact evidence or less than the jury has seen and
heard this past seven days would be in the Court’s opinion
an invitation to the jury to substitute the expert’s judgment
of the meaning of the facts of the case for its own.
I have heard no testimony regarding what kind of scientific
method or systematic approach was used, and in the
Court’s opinion the proffered evidence is intended to cast a
sheen of technical and scientific methodology onto a
concept of which a lay person, and specifically in this case
a jury member, would probably already be aware or would
be able to discern from the jury member’s observation of
the evidence in the case, that this proffered testimony does
not provide insight beyond the conclusions that jurors can
readily draw from their ordinary experience and/or from
their observations of the evidence presented.
¶ 21 Thus, the court excluded Defendant’s proffered expert testimony pertaining to
the principles of self-defense and use of deadly force, as well as Investigator Henline’s
opinion as to the reasonableness of Defendant’s actions. The trial court permitted
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Investigator Henline to testify regarding the mechanics of the firearm and
ammunition used by Defendant.
B. Analysis
¶ 22 “Whether expert witness testimony is admissible under Rule 702(a) is a
preliminary question that a trial judge decides pursuant to” N.C. Gen. Stat. § 8C-1,
Rule 104(a) (2021). McGrady, 368 N.C. at 892, 787 S.E.2d at 10. “To the extent that
factual findings are necessary to answer this question, the trial judge acts as the trier
of fact. The court must find these facts by the greater weight of the evidence. . . .
[T]hese findings will be binding on appeal unless there is no evidence to support
them.” Id. at 892–93, 787 S.E.2d at 10–11 (citations omitted). From its findings of
fact, the trial court must then determine “whether the proffered expert testimony
meets Rule 702(a)’s requirements of qualification, relevance, and reliability.” Id. at
893, 787 S.E.2d at 11.
¶ 23 Rule 702(a) establishes the criteria by which a court determines the
admissibility of proffered expert testimony:
If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or
data.
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(2) The testimony is the product of reliable principles
and methods.
(3) The witness has applied the principles and
methods reliably to the facts of the case.
N.C. Gen. Stat. § 8C-1, Rule 702(a).
¶ 24 As noted above, “Rule 702(a) has three main parts, and expert testimony must
satisfy each to be admissible.” McGrady, 368 N.C. at 889, 787 S.E.2d at 8. First, the
witness must be “qualified as an expert[,]” such that the witness is “in a better
position than the trier of fact to have an opinion on the subject[.]” Id. at 889, 787
S.E.2d at 9 (citation omitted). “Expertise can come from practical experience as much
as from academic training.” Id. “As is true with respect to other aspects of Rule 702(a),
the trial court has the discretion to determine whether the witness is sufficiently
qualified to testify in that field.” Id. at 890, 787 S.E.2d at 9.
¶ 25 Second, the expert testimony must be relevant; that is, it must “assist the trier
of fact to understand the evidence[.]” Id. at 889, 787 S.E.2d at 8 (citation omitted). “In
order to ‘assist the trier of fact,’ expert testimony must provide insight beyond the
conclusions that jurors can readily draw from their ordinary experience.” Id. (citation
omitted). Further, the expert “testimony must do more than invite the jury to
substitute the expert’s judgment of the meaning of the facts of the case for its own.”
Id. (citation and internal quotation marks omitted).
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¶ 26 Our Supreme Court addressed the issue of relevance in McGrady, in which it
concluded that the proffered expert testimony in the science of “use of force” was not
relevant to support the defendant’s assertion of self-defense. Id. at 895, 787 S.E.2d at
12. The Court agreed with the trial court’s determination that the expert’s testimony
concerning pre-attack cues, use-of-force variables, and reaction times “would not
assist the jury because these matters were within the jurors’ common knowledge.” Id.
Thus, the exclusion of the expert’s testimony did not constitute an abuse of discretion
because it would not have assisted the jury in deciding whether the defendant acted
in self-defense: “The factors that [the expert] cited and relied on to conclude that [the]
defendant reasonably responded to an imminent, deadly threat are the same kinds of
things that lay jurors would be aware of, and would naturally consider, as they drew
their own conclusions.” Id.
¶ 27 Third, “the trial court must assess the reliability of the testimony to ensure
that it complies with the three-pronged test in Rule 702(a)(1) to (a)(3).” Id. at 892,
787 S.E.2d at 10. As detailed above, Rule 702(a) provides: “(1) The testimony [must
be] based upon sufficient facts or data. (2) The testimony [must be] the product of
reliable principles and methods. (3) The witness [must have] applied the principles
and methods reliably to the facts of the case.” N.C. Gen. Stat. § 8C-1, Rule 702(a)(1)–
(3). “The primary focus of the inquiry is on the reliability of the witness’s principles
and methodology, not on the conclusions that they generate . . . .” McGrady, 368 N.C.
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at 890, 787 S.E.2d at 9 (citations and internal quotation marks omitted). “However,
conclusions and methodology are not entirely distinct from one another, and . . . the
court is not required to admit opinion evidence that is connected to existing data only
by the ipse dixit of the expert.” Id. (citation and internal quotation marks omitted).
¶ 28 On appeal, Defendant asserts that the trial court should have permitted
Investigator Henline to testify to his opinion regarding the reasonableness of
Defendant’s use of deadly force because the “proffered testimony met the McGrady
standards.” She further argues that Investigator Henline was properly qualified as
an expert, and that his expertise was necessary to help the jury assess “when a second
shot is excessive force[,]” a concept that Defendant contends “is not common
knowledge[.]” This assertion is unpersuasive.
¶ 29 In the instant case, the trial court excluded Investigator Henline’s testimony
regarding self-defense and deadly force because his testimony “d[id] not provide
insight beyond the conclusions that jurors can readily draw from their ordinary
experience and/or from their observations of the evidence presented.” In that
Investigator Henline’s proffered testimony did not satisfy the requirements of Rule
702(a) as articulated in McGrady, we conclude that the trial court did not abuse its
discretion by excluding it.
¶ 30 Although Investigator Henline was unquestionably qualified to testify
concerning the use-of-force training of law enforcement officers, he was not
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sufficiently familiar with the use-of-force training of civilians to testify as an expert
on the subject. As Investigator Henline readily admitted during voir dire, he “fell
under a different category on concealed carry permit” as a law enforcement officer
and “didn’t have to take [the] concealed carry” class taught to civilians. Consequently,
he could not testify to what civilians learn in their concealed carry classes. By
contrast, Defendant testified as to what she learned about the use of deadly force in
her concealed carry class. And as the trial court noted, “probably close to half of [the]
jurors ha[d] a concealed carry permit and ha[d] taken the class presumably in order
to get it.” Therefore, Investigator Henline did not “have enough expertise to be in a
better position than the trier of fact to have an opinion on the subject” of civilians’
use-of-force training. Id. at 889, 787 S.E.2d at 9. As such, he was not sufficiently
qualified to provide an expert opinion as to the reasonableness of Defendant’s actions
in the present case. See id.
¶ 31 Furthermore, Investigator Henline’s proffered expert testimony did not satisfy
Rule 702(a)’s relevance requirement because no specialized knowledge was required
to determine the reasonableness of Defendant’s actions. As he testified during the
pretrial voir dire, Investigator Henline formed his opinion on this issue after he
reviewed the State’s discovery, interviewed Defendant and Ms. Dillard, and watched
the video recording multiple times. The jury, likewise, had the ability and opportunity
to consider the same materials: the State presented its evidence during its case-in-
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chief; Defendant and Ms. Dillard testified about the night of the shooting; and both
the State and Defendant played the video recording multiple times for the jury. The
jury also had the opportunity to hear directly from Defendant regarding her concealed
carry training, which many of the jurors had also received.
¶ 32 Accordingly, the testimony of Investigator Henline would not have “assist[ed]
the trier of fact to understand the evidence or to determine a fact in issue,” N.C. Gen.
Stat. § 8C-1, Rule 702(a), and therefore, was not relevant. Indeed, Investigator
Henline’s proffered expert testimony regarding the use of deadly force and the
reasonableness of Defendant’s actions would have impermissibly “invite[d] the jury
to substitute [his] judgment of the meaning of the facts of the case for its own.”
McGrady, 368 N.C. at 889, 787 S.E.2d at 8 (citation and internal quotation marks
omitted).
¶ 33 Moreover, Defendant has failed to establish that Investigator Henline’s
opinion was “the product of reliable principles and methods.” N.C. Gen. Stat. § 8C-1,
Rule 702(a)(2). The trial court found that Investigator Henline’s testimony regarding
his methods of investigation “cast a sheen of technical and scientific methodology onto
a concept of which a lay person, and specifically in this case a jury member, would
probably already be aware or would be able to discern from the jury member’s
observation of the evidence in the case[.]” A review of the record supports this finding.
Investigator Henline testified to using “the scientific method with a systematic
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approach[,]” by which he collects evidence, conducts interviews, and submits his
finding to peer review. However, as described above, the jury necessarily performed
a similar review of the evidence in determining whether Defendant acted reasonably.
Accordingly, because the proffered opinion testimony was “connected to existing data
only by [Investigator Henline’s] ipse dixit[,]” McGrady, 368 N.C. at 890, 787 S.E.2d
at 9 (citation omitted), we conclude that the trial court’s determination “that this
testimony would simply be an effort to cast a sheen of technical and scientific
methodology onto a concept into which a lay person, particularly a jury member,
would probably already be aware” was not “manifestly unsupported by reason[,]” id.
at 893, 787 S.E.2d at 11 (citation omitted).
¶ 34 In sum, Investigator Henline lacked sufficient “expertise to be in a better
position than the trier of fact to have an opinion on the subject” of the appropriate
use of force by civilians. Id. at 889, 787 S.E.2d at 9. Further, “[t]he factors that [he]
cited and relied on to conclude that [D]efendant reasonably responded to an
imminent, deadly threat are the same kinds of things that lay jurors would be aware
of, and would naturally consider, as they drew their own conclusions.” Id. at 895, 787
S.E.2d at 12. In addition, “the court [wa]s not required to admit [the] opinion
evidence,” as it was “connected to existing data only by the ipse dixit of the expert.”
Id. at 890, 787 S.E.2d at 9 (citation and internal quotation marks omitted). Therefore,
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the trial court did not abuse its discretion by excluding Investigator Henline’s opinion
testimony. Id. at 893, 787 S.E.2d at 11.
¶ 35 Defendant next asserts that Investigator Henline’s testimony was necessary
for her defense because “the jury did not have ‘the same exact’ knowledge of the video”
as Investigator Henline. Specifically, she contends that because the jurors viewed the
low-resolution video from a distance due to COVID-19 protocols, Investigator
Henline’s testimony would have been “very helpful” to the jury to explain what was
happening; hence, Defendant argues, the trial court abused its discretion by
excluding it. This argument lacks merit.
¶ 36 A careful review of the record reveals that the trial court went to great lengths
to ensure that the jurors could view the video recording while remaining socially
distanced due to the COVID-19 pandemic. Before the trial began, the court instructed
the jurors to “[r]aise [their] hand[s]” or “[s]ay something” if they could not properly
see the evidence. The trial court also informed the jury that the court “will do
whatever [it] can to make sure that you are able to see and hear and observe all of
the evidence[.]” Additionally, a television was placed in front of the jurors in lieu of
the television mounted to the courtroom wall to allow for better visibility. Upon
publishing the video recording of the shooting to the jury for the first time, the trial
court instructed the State to move the television as close to the jury as possible, and
it reiterated its prior instructions regarding jurors’ view of the television: “If you
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cannot see and see clearly, folks, raise your hand. We’ll stop it. We’ll make
adjustments. You folks adjust if you need to move.” None of the jurors expressed any
difficulty seeing the video while the recording played. Moreover, the court granted
the jury’s request during deliberations to view the recording again, playing the video
once at half-speed and again at full speed.
¶ 37 The trial court’s astute actions precluded the need for Investigator Henline to
narrate the events of the video to the jury; his narration would not have further
“assist[ed] the trier of fact to understand the evidence[.]” N.C. Gen. Stat. § 8C-1, Rule
702(a). The court’s decision to exclude such testimony, therefore, did not constitute
an abuse of discretion. McGrady, 368 N.C. at 893, 787 S.E.2d at 11.
III. Lay Opinion
¶ 38 Defendant next asserts that the trial court abused its discretion and committed
prejudicial error by allowing Ms. Bennett to testify, over Defendant’s objection, to her
opinion as to the level of danger to the persons present at FishZilla that evening prior
to the shooting. Again, we disagree.
¶ 39 Rule 701 of the North Carolina Rules of Evidence permits a lay witness to offer
“opinions or inferences which are (a) rationally based on the perception of the witness
and (b) helpful to a clear understanding of his testimony or the determination of a
fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701. Our Supreme Court has interpreted
this Rule as permitting a lay witness to testify to an opinion that is “a shorthand
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statement of fact, or, in other words, the instantaneous conclusions of the mind as to
the appearance, condition, or mental or physical state of persons, animals, and things,
derived from observation of a variety of facts presented to the senses at one and the
same time[.]” State v. Roache, 358 N.C. 243, 294, 595 S.E.2d 381, 414 (2004) (citations
and internal quotation marks omitted).
¶ 40 Relatedly, Rule 704 provides that “[t]estimony in the form of an opinion or
inference is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact.” N.C. Gen. Stat. § 8C-1, Rule 704. The Rule thus allows for “admission
of lay opinion evidence on ultimate issues, but to qualify for admission the opinion
must be helpful to the jury.” State v. Elkins, 210 N.C. App. 110, 124, 707 S.E.2d 744,
754 (2011) (citation omitted). Furthermore, “while opinion testimony may embrace
an ultimate issue, the opinion may not be phrased using a legal term of art carrying
a specific legal meaning not readily apparent to the witness.” State v. Najewicz, 112
N.C. App. 280, 293, 436 S.E.2d 132, 140 (1993), disc. review denied, 335 N.C. 563, 441
S.E.2d 130 (1994).
¶ 41 “However, even if the trial court erred by allowing such testimony, the
defendant must show that the error was prejudicial.” Dove, 274 N.C. App. at 422, 852
S.E.2d at 685; see N.C. Gen. Stat. § 15A-1443(a). “In determining whether a criminal
defendant is prejudiced by the erroneous admission of evidence, the question is
whether there is a reasonable possibility that, had the evidence not been admitted,
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the jury would have reached a different verdict.” State v. Malone-Bullock, 278 N.C.
App. 736, 2021-NCCOA-406, ¶ 17 (citation omitted), disc. review denied, 379 N.C.
682, 865 S.E.2d 863 (2021). “Further, if certain evidence is admitted without
objection, the admission of subsequent evidence of similar a character cannot be
objectionable.” State v. Delau, 381 N.C. 226, 2022-NCSC-61, ¶ 32 (concluding that the
defendant could not demonstrate prejudice from the admission of lay opinion
testimony because other admitted evidence included substantially similar
information). Constitutional errors are generally prejudicial “unless the appellate
court finds that it was harmless beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-
1443(b).
¶ 42 In the instant case, Defendant’s challenge to Ms. Bennett’s opinion testimony
concerns the following exchange:
[THE STATE:] Ms. Bennett, based on your observation of
the events unfolding that night and now I’m specifically
referring to the early morning hours of April 21, 2018, did
you feel that anyone’s life was in danger?
[MS. BENNETT:] No.
[THE STATE:] Did you feel that anyone’s life or anyone
was in imminent danger of serious bodily harm?
....
[MS. BENNETT:] No.
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¶ 43 Defendant first argues that the trial court should have excluded Ms. Bennett’s
opinion as to whether anyone at FishZilla was in danger on the evening in question
because her opinion on this issue impermissibly “invade[d] the province of the jury[.]”
According to Defendant, “[t]he jurors had more information concerning the danger
Ms. Dillard was in than Ms. Bennett because they had heard Ms. Dillard’s testimony
that she was blacking out and believed Mr. Davis was killing her.” Defendant also
contends that the challenged portion of Ms. Bennett’s testimony was tantamount to
an opinion as to whether Defendant’s use of deadly force was reasonable, which she
contends was an element of the crime with which Defendant was charged.
¶ 44 In fact, whether Defendant’s use of deadly force was reasonable was an
ultimate issue at trial in light of Defendant’s self-defense claim. Opinion testimony,
however, “is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact.” Id. § 8C-1, Rule 704. Nor did Ms. Bennett’s testimony impermissibly
invade the province of the jury, as she did not phrase her opinion “using a legal term
of art carrying a specific legal meaning not readily apparent to” her. Najewicz, 112
N.C. App. at 293, 436 S.E.2d at 140. Rather, she appropriately provided one-word
answers to the prosecutor’s carefully crafted questions. Further, Ms. Bennett’s
opinion was “helpful to the jury”: as a participant in the conflict, Ms. Bennett was
uniquely qualified to speak to the overall level of danger at FishZilla in the moments
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leading up to the shooting. Elkins, 210 N.C. App. at 124, 707 S.E.2d at 754 (citation
omitted).
¶ 45 Nevertheless, assuming, arguendo, that the trial court erroneously admitted
Ms. Bennett’s opinion testimony, Defendant cannot demonstrate prejudice. Although
Defendant correctly notes that a “violation of the defendant’s rights under the
Constitution of the United States is prejudicial unless the appellate court finds that
it was harmless beyond a reasonable doubt[,]” N.C. Gen. Stat. § 15A-1443(b), she fails
to articulate how the admission of Ms. Bennett’s opinion testimony amounted to a
constitutional violation. Citing no case law or statutory authority, Defendant simply
contends that “[a]llowing lay opinion evidence concerning an element of the crime
violated [her] constitutional right to a fair trial and due process.” As such, we have
no legal basis upon which to review this alleged error. See N.C.R. App. P. 28(b)(6). In
that “[i]t is not the role of this Court to craft [D]efendant’s arguments for h[er,]” State
v. Earls, 234 N.C. App. 186, 192, 758 S.E.2d 654, 658, disc. review denied, 367 N.C.
791, 766 S.E.2d 643 (2014), Defendant’s prejudice argument pursuant to N.C. Gen.
Stat. § 15A-1443(b) fails.
¶ 46 Defendant next argues that because “[t]he jurors in this case would have been
sympathetic toward a woman whose common law husband and father of her children
had been shot in her presence[,]” there was a reasonable possibility that the jury
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would have acquitted Defendant if the trial court had not admitted Ms. Bennett’s
opinion testimony. The argument is also unavailing.
¶ 47 As the State articulates in its appellate brief, the trial court admitted without
objection substantially similar evidence regarding the level of danger at FishZilla
that evening. Mr. Quick stated at trial that he did not believe that it was necessary
to call 9-1-1 prior to the shooting, given that the altercation had lasted for less than
a minute at that point. Mr. Livengood testified that although he had a firearm on his
person that evening, he never brandished his weapon; when asked whether he
believed that either Defendant or Ms. Dillard “was in danger of serious, imminent
harm” that night, Mr. Livengood replied, “No.” Because “other admitted evidence
included substantially similar information” as Ms. Bennett’s challenged lay opinion,
Delau, 381 N.C. 226, 2022-NCSC-61, ¶ 33, Defendant cannot demonstrate that “there
is a reasonable possibility that, had the evidence not been admitted, the jury would
have reached a different verdict[,]” Malone-Bullock, 278 N.C. App. 736, 2021-
NCCOA-406, ¶ 17 (citation omitted). Accordingly, her argument is overruled.
¶ 48 Finally, Defendant argues that the trial court abused its discretion in
admitting Ms. Bennett’s lay opinion because her opinion “was based on inadmissible
character evidence[,]” as described in Rule 404 of the North Carolina Rules of
Evidence. However, careful review of the transcript reveals that Defendant did not
raise this argument before the trial court. Therefore, this issue was not preserved for
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appellate review. See N.C.R. App. P. 10(a)(1) (requiring a party to present to the trial
court a timely objection “stating the specific grounds for the ruling the party desired
the court to make if the specific grounds were not apparent from the context” and “to
obtain a ruling upon the party’s . . . objection” to preserve an issue for appellate
review).
¶ 49 “Where a defendant objects to the admission of evidence before the trial court
and states a specific ground as the basis for that objection, but raises a different
ground as the basis for his argument on appeal, the issue is not preserved.” State v.
Gettleman, 275 N.C. App. 260, 272, 853 S.E.2d 447, 455 (2020) (concluding that the
defendant had not preserved for appellate review his argument that the challenged
evidence was inadmissible as speculative lay-opinion testimony under Rule 701
where the defendant argued hearsay and confrontation grounds below), disc. review
denied, 377 N.C. 557, 858 S.E.2d 286, 290 (2021).
¶ 50 Here, Defendant’s counsel explicitly asked that his objection to Ms. Bennett’s
opinion “be noted under the Sixth and Fourteenth Amendment[s].” Defense counsel
also argued that Ms. Bennett’s opinion was not “relevant to the issue of self-defense
or defense of others from her perspective.” After hearing arguments from the parties,
the trial court overruled Defendant’s objection on both of the asserted grounds.
¶ 51 Our appellate courts have “long held that where a theory argued on appeal was
not raised before the trial court, the law does not permit parties to swap horses
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between courts in order to get a better mount” on appeal. State v. Sharpe, 344 N.C.
190, 194, 473 S.E.2d 3, 5 (1996) (citation and internal quotation marks omitted).
Accordingly, Defendant may not present her new argument for appellate review.
Conclusion
¶ 52 The trial court did not abuse its discretion by excluding Defendant’s expert’s
testimony regarding the use of force and self-defense, and Defendant has failed to
demonstrate that she was prejudiced by the admission of the lay opinion testimony
of a witness for the State. Thus, we conclude that Defendant received a fair trial, free
from prejudicial error.
NO PREJUDICIAL ERROR.
Chief Judge STROUD and Judge DIETZ concur.