An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                      -2-
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
                                           -3-
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.
                                       -4-
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:
                                        -5-
              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
                                           -6-
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
                                  -7-
          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.
                                     -8-
      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
                                               -9-
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
                              -10-
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).
