                               NO. COA13-330

                     NORTH CAROLINA COURT OF APPEALS

                         Filed: 21 January 2014


STATE OF NORTH CAROLINA

    v.                                     Wilkes County
                                           No. 11 CRS 54425
CHARLES ANTHONY MCGRADY



     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, 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
                                     -2-
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,
                                              -3-
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
                                           -4-
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


1   The shots were fired in 1.82 seconds.
                                      -5-
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
                               -6-
         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]
                                         -7-
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.”



2 He elaborated: “[B]y the time the individual perceives a
threat, recognize[s] it as a threat, and makes the decision to
begin to use some technique, tactic, or method to either flee or
fight[, i]t usually takes the average person about three-
quarters of a second to begin to react to some stimulus that
they perceive as a threat. So we utilize that reaction time in
analyzing these various cases.”
                                            -8-
      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,
                                     -9-
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, [reacted and] turned 90 to 180 degrees, or, in fact, could

have turned 360 degrees,” accounting for the injuries in his

side and back. In addition, (4) Defendant was possibly affected

by perceptual narrowing.

      When Cloutier was questioned about the scientific basis for

his   opinions,   he    testified     that   his     knowledge    came    from

published articles in the field of use of force and the training

he received “by some of those authors and studies that I have

myself been involved in . . . .” He explained that the “Justice

Academy”   uses   “a   number   of   tests   . . .    to   look   at   various

principles of use of force . . . .” According to Cloutier, this

information is regularly relied on by people in the field. When

asked to explain the reliability of the information described in

his testimony, Cloutier explained:

           The tests, for example, that I have been a
           part of performing and been involved in with
                                     -10-
            the   Justice  Academy   . . .  measure   the
            physiological results of an individual under
            stress and their reaction time; once they
            perceive a threat, how long it takes to
            react and what type of reaction they have.
            Those results of those studies that we have
            performed   at   the   Justice  Academy   are
            consistent with the studies that have been
            performed and published on a national basis.

According   to   Cloutier,   these    tests       have   “remained    consistent

over time.” When asked to describe the “known or potential rate

of error,” however, Cloutier admitted that he did not know.3

     At the end of the hearing, the trial court sustained the

State’s   objection   and    excluded       Cloutier’s     testimony     in   its

entirety.   The court    pointed out        that (1) much of Cloutier’s

report constituted impermissible witness bolstering, (2) certain

of Cloutier’s opinions were based on medical knowledge that he

was not qualified to discuss, (3) Cloutier’s opinion on use of

force variables would not be helpful to the jury because most

individuals are able to recognize pre-attack cues and other use

of force variables, and (4) Cloutier is not competent to testify

about reaction times. In addition, the court determined that

Cloutier’s “testimony [was] not based on sufficient facts or

data. . . . [,]    not   the   product       of     reliable   principles     or


3  Cloutier later     stated: “I have not done[ a]                   statistical
analysis on any       of these studies or read a                     statistical
analysis.”
                                           -11-
methods. . . . [, and] simply a conclusory approach that [could

not] reasonably assess for reliability.” The court noted that

Cloutier’s      testimony      had    not    been      subject       to    peer   review,

Cloutier had no knowledge of a potential rate of error regarding

any of the use of force factors, and Cloutier did not recognize

or apply the variables that could have affected his opinions in

the    case.    As   a   result,     the    court      concluded      that    Cloutier’s

“opinions . . . [were] . . . based on speculation. He[ was] just

guessing and overlooking a very important part of what could

very well affect his opinions in this case.” It also found,

“[n]otwithstanding all those findings,” that the probative value

of    Cloutier’s     testimony       was   “substantially           outweighed    by   the

danger    of     unfair    prejudice,        confusion         of    the     issues,   or

misleading the jury” under Rule 403 of the North Carolina Rules

of Evidence.

               B. Legal Background

       Rule 702 states, in pertinent part, that

               (a)   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
                                           -12-
                     sufficient facts or data.

                     (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) (2013). Rule 702(a) was

amended to read as quoted above, effective 1 October 2011. 2011

N.C. Sess. Laws 400, § 1(c) (S.B. 33); 2011 N.C. Sess. Laws 283,

§    1.3   (H.B.    542).    The    earlier       version   of   the    rule    did   not

include     the    criteria       listed    in    subsections     (1)–(3),      but   was

otherwise the same. See id.

       Though our appellate courts have not addressed in detail

the significance of the October 2011 amendment to Rule 702, this

Court      has    noted    that    the     current,    amended     “language         . . .

implements the standards set forth in Daubert v. Merrell Dow

Pharmaceuticals,          Inc.,    509     U.S.    579,[]   125    L.    Ed.    2d    469

(1993).” Wise v. Alcoa, Inc., __ N.C. App. __, __ n.1, __ S.E.2d

__, __ n.1 (2013); see also State v. Hudson, __ N.C. App. __,

721 S.E.2d 763 (2012) (unpublished opinion), available at 2012

WL    379936.      That   observation       comports    with     the    bill   analysis

provided to the Senate Judiciary Committee which reviewed the

amendment.        See     Committee      Counsel     Bill   Patterson,         2011–2012
                                      -13-
General Assembly, House Bill 542: Tort Reform for Citizens and

Business 2–3 n.3 (8 June 2011) (“As amended, Rule 702(a) will

mirror Federal Rule 702(a), which was amended in 2000 to conform

to the standard outlined in Daubert . . . .”); see generally

Fed. R. Evid. 702; Daubert, 509 U.S. at 589, 125 L. Ed. 2d at

469. This new language represents a departure from our previous

understanding of Rule 702, which eschewed the Supreme Court’s

decision in Daubert. Howerton, 358 N.C. at 469, 597 S.E.2d at

693 (“North Carolina is not, nor has it ever been, a Daubert

jurisdiction.”). Given the changes wrought by our legislature,

however, it is clear that amended Rule 702 should be applied

pursuant to the federal standard as articulated in Daubert.

       In   the   Daubert    case,    the    United    States       Supreme     Court

defined a gatekeeping role for trial judges. Daubert, 509 U.S.

at 597, 125 L. Ed. 2d at 485 (“We recognize that [such a role],

no matter how flexible, inevitably on occasion will prevent the

jury   from   learning      of   authentic    insights       and    innovations.”).

Accordingly,       an   expert    must      first   base      his    testimony    on

“scientific       knowledge,”     which     “implies     a    grounding    in     the

methods and procedures of science,” in order for that testimony

to be admissible. Id. at 590, 125 L. Ed. 2d at 480–81. The Court

explained this requirement in detail as follows:
                                         -14-
            [T]he word “knowledge” connotes more than
            subjective       belief      or    unsupported
            speculation. The term applies to any body of
            known facts or to any body of ideas inferred
            from such facts or accepted as truths on
            good grounds. . . . [I]n order to qualify as
            “scientific knowledge,” an inference or
            assertion must be derived by the scientific
            method.4 Proposed testimony must be supported
            by appropriate validation — i.e., “good
            grounds,” based on what is known. In short,
            the requirement that an expert’s testimony
            pertain     to       “scientific    knowledge”
            establishes    a    standard    of evidentiary
            reliability.

Id. at 590, 125 L. Ed. 2d at 481 (emphasis added). Second, an

expert’s testimony must assist the trier of fact to understand

the evidence or determine a fact in issue. Id. at 591, 595, 125

L. Ed. 2d at 481, 483–84. “The focus, of course, must be solely

on principles and methodology, not on the conclusions that they

generate.” Id. at 595, 125 L. Ed. 2d at 484 (emphasis added).

      It   is    the   trial       court’s      responsibility   to    determine

“whether the expert is proposing to testify to (1) scientific

knowledge” and whether that knowledge “(2) will assist the trier

of fact to understand or determine a fact in issue.” Id. at 592,

125   L.   Ed.   2d    at   482.    In    deciding    whether    the   proffered



4 The “scientific method” is “[a]n analytical technique by which
a hypothesis is formulated and then systematically tested
through observation and experimentation.” Black’s Law Dictionary
1463–64 (9th ed. 2009).
                                              -15-
scientific theory or technique will assist the trier of fact,

the trial court may consider, among other things, (1) “whether

[a   theory    or    technique]         can   be     (and    has   been)    tested,”     (2)

“whether the theory or technique has been subjected to peer

review and publication,” (3) “the known or potential rate of

error     . . .     and    the    existence        and      maintenance     of   standards

controlling       the     technique’s         operation,”       and   (4)    whether     the

theory or technique is generally accepted as reliable in the

relevant scientific community. Id. at 593–94, 125 L. Ed. 2d at

482–83. This inquiry is “a flexible one,” id. at 594, 125 L. Ed.

2d   at    483–84,        and    remains       reviewable       under      the   abuse    of

discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136,

147, 139 L. Ed. 2d 508, 519 (1997).

              C. Analysis

      Defendant argues that the trial court erroneously excluded

Cloutier’s testimony under Rule 702 and, in doing so, abused its

discretion. Specifically, Defendant asserts that “use of force

is a science,” based on scientific principles and utilized by

other experts. He states that concepts like “reaction time” are

based on “reliable” studies, which were cited by Cloutier, and

points out that Cloutier unearthed a number of “use of force

variables     that      came     into    play      in    this   situation. . . .         Most
                                          -16-
important[ly], Cloutier explained that [the decedent] could have

turned 90 to 180 degrees in 1.8 seconds,” the amount of time it

took Defendant to fire the shots. Defendant argues that this

fact, in particular, could have assisted the jury in determining

that Defendant used “defensive force” in the confrontation with

the   decedent.        Defendant     also     argues     that   expert       testimony

“should     be       liberally   admitted”       and    that    the    trial        court

“unfairly        interject[ed]       itself      into    the      litigation”         and

disregarded the liberal admission precept. In conjunction with

the above argument, Defendant contends that the trial court’s

decision        to     exclude     Cloutier’s         testimony       violated       his

constitutional right to present a defense. We disagree.

                      (1) Rule 702

      In Joiner, the United States Supreme Court reviewed a trial

court’s application of the Daubert test. 522 U.S. at 136, 139 L.

Ed. 2d at 508. The respondent-employee worked as an electrician

for the petitioner-employer. Id. at 139, 139 L. Ed. 2d at 514.

By expert testimony, the employee linked the development of his

cancer     to    his    exposure     to     certain     chemicals     used     by     his

employer. Id. at 139–40, 139 L. Ed. 2d at 514. In providing that

testimony, the experts relied on a number of specific scientific

studies. Id. at 143–44, 139 L. Ed. 2d at 517. Nonetheless, the
                                        -17-
trial court excluded the proffered testimony on grounds that it

did    not     rise     above     “subjective     belief      or     unsupported

speculation.” Id. at 140, 139 L. Ed. 2d at 515. On appeal, the

circuit      court    reversed    the    trial   court,    citing        a   general

“preference” for the admission of expert                  testimony.5 Id. The

United States Supreme Court reversed that decision on writ of

certiorari and affirmed the trial court’s original decision to

exclude the expert testimony. Id. at 141, 139 L. Ed. 2d at 515.

       In his argument to the Supreme Court, the employee asserted

that    the     trial    court’s        disagreement   with        the       experts’

conclusions was error           because the experts had relied on the

specific principles and methodology used in the cited studies,

pursuant to the requirements laid down in Daubert. Id. at 146,

139 L. Ed. 2d at 518. The Supreme Court overruled that argument

and stated that, while the focus of a trial court’s analysis

must be on principles and methodology,

              conclusions and methodology are not entirely
              distinct from one another. . . . [N]othing
              . . . requires a [trial court] to admit
              opinion   evidence  that  is   connected  to
              existing data only by the ipse dixit6 of the


5 Such “preference” is not unlike the liberal admission precept
invoked by Defendant in this case.

6 Ipse dixit is Latin for “he himself said it” and defined as
“[s]omething asserted but not proved[.]” Black’s Law Dictionary
                                        -18-
             expert. A court may conclude that there is
             simply too great an analytical gap between
             the data and the opinion proffered.

Id. at 146, 139 L. Ed. 2d at 519 (emphasis added). Citing the

highly deferential standard afforded to a trial court’s decision

to exclude or admit expert testimony, the Court concluded that

the trial court did not abuse its discretion in excluding the

employee’s      expert     testimony     and     in   determining     that   the

analytical gap between the data and the opinion in that case was

too great. Id.

       In this case, just as in Joiner, the trial court determined

that    there   was      too    great   an     analytical   gap   between    the

authorities      cited     by    Cloutier      and    his   offered    opinion.

Specifically, the court concluded that Cloutier’s testimony was

not based on sufficient facts or data or the product of reliable

principles and methods. The trial court also noted that (1) the

testimony served as “simply a conclusory approach that cannot

reasonably assess for reliability” and (2) Cloutier had failed

to provide any known rate of error or show that any of the

referenced studies were the subject of peer review. For those

reasons, the trial court determined that Cloutier’s testimony

was merely “based on speculation” and commented that “[Cloutier]


905 (9th ed. 2009).
                                          -19-
is just guessing and overlooking [variables that] could . . .

affect his opinions in this case.”

      Defendant     contests       the     trial      court’s     conclusions         and

asserts    that    it    abused    its     discretion        in   coming   to       those

conclusions,      but does not show            how the court’s decision was

arbitrarily or manifestly unreasonable. Rather, he argues for

the reasonableness of a different conclusion based on the same

evidence.7 This demonstrates a misunderstanding of the abuse of

discretion standard.

      The federal courts have traditionally granted “a great deal

of   discretion”    to     the    trial       court   when    determining      whether

expert testimony is admissible under Daubert. See, e.g., U.S. v.

Dorsey, 45 F.3d 809 (4th Cir. 1995); Maryland Cas. Co. v. Therm-

O-Disc, Inc., 137 F.3d 780 (4th Cir. 1998) (“Daubert clearly

contemplates      the    vesting     of       significant     discretion       in     the

district   court    with    regard       to    the    decision    to   admit    expert

scientific testimony.”). As the State points out in its brief,

Cloutier provided little data to support the reliability of his

proposed methodology. Though Cloutier testified that (1) use of




7 We also note that Defendant does not address the trial court’s
determination that the testimony is inadmissible under Rule 403.
                                      -20-
force has been “tested,” (2) publications exist in the field,8

and (3) the theory is “relied upon regularly,” he provided no

substantive reasons — no specific scientific knowledge, methods,

or procedures — to support those assertions. Indeed, unlike the

experts in Joiner, Cloutier was not even able to cite a single

specific study, merely referring to the existence of studies and

their authors generally. In addition, when the court asked about

the relevant “rate of error,” Cloutier admitted that he knew

nothing about that factor or how it related to his opinions.

    A   review     of   the   trial     transcript    indicates    that,   in

excluding Cloutier’s testimony, the trial court properly applied

the standard laid down by the Supreme Court in Daubert. The

court determined that Cloutier’s testimony was firmly within the

realm of common knowledge and would not be helpful to the jury.

The Court pointed out that Cloutier completely lacked medical

credentials    and      provided      little   evidence      regarding     the

principles    or   methodology     used   to   come   to   his   conclusions.

Therefore, even if we were to assume that the doctrine of “use




8 Cloutier stated that he had read and even participated in some
of the studies leading to these publications. Nevertheless, he
was completely unable to provide details regarding their
content.
                                    -21-
of force” constitutes scientific knowledge,9 we see no reason to

conclude that the trial court was manifestly unreasonable in

determining   that     Cloutier’s    knowledge   of    that     doctrine     —

including the way an individual reacts in a confrontation or the

fact that an individual might turn away when a gun is fired —

was not helpful to the jury. See generally Braswell v. Braswell,

330 N.C. 363, 377, 410 S.E.2d 897, 905 (1991) (“When the jury is

in as good a position as the expert to determine an issue, the

expert’s   testimony   is   properly   excludable     because   it   is    not

helpful to the jury.”) (citation omitted).             In our    view, the

court’s decision was well-reasoned, especially given the Daubert

requirements invoked by amended Rule 702. Therefore, Defendant’s

first argument is overruled, and we affirm the trial court’s

decision to exclude Cloutier’s testimony under Rule 702.

                (2) Right to Present a Defense

    Defendant also contends that the exclusion of Cloutier’s

testimony under Rule 702 violated his constitutional right to



9 We do not offer an opinion as to whether it does. We note,
however, that Cloutier offered scant evidence to support that
fact in this particular case. Merely referencing scientific
studies and explaining the meaning of apparent scholarly terms
like   “perceptual  narrowing” –   without  providing  a  more
substantial basis on which to ground one’s opinion — does not
fit with the Daubert Court’s intent that expert testimony be
based on scientific knowledge.
                                        -22-
present a defense under the Sixth Amendment of the United States

Constitution and Article I, section 23 of the North Carolina

Constitution. We disagree.

    The right to present a defense is not absolute. U.S. v.

Prince-Oyibo,     320    F.3d    494,      501     (4th     Cir.   2003).      Criminal

defendants do not have a right to present evidence that the

trial court, in its discretion, deems inadmissible under the

rules of evidence. See id. (citing Taylor v. Illinois, 484 U.S.

400, 410, 98 L. Ed. 2d 798 (1988) (“The accused does not have an

unfettered     Sixth    Amendment     right      to    offer    testimony      that   is

incompetent,      privileged,         or    otherwise          inadmissible        under

standard rules of evidence.”) (brackets omitted)). Indeed, only

rarely has the Supreme Court “held that the right to present a

complete   defense      [is]    violated      by      the   exclusion     of   defense

evidence under a state rule of evidence.” Nevada v. Jackson, __

U.S. __, __, 186 L. Ed. 2d 62,                   66 (2013). Because we have

determined that the trial court excluded Cloutier’s testimony

within   the    bounds    of    our   rules      of    evidence,     we     hold    that

Defendant’s constitutional right to present a defense was not

violated. Defendant’s second argument is therefore overruled.
                                     -23-
      II. Character Evidence

      Defendant      also   argues   that     the   trial    court   erred     in

excluding the testimony of Dr. Jerry Brittain, who addressed the

decedent’s alleged proclivity toward violence. We disagree.

             A. Voir Dire

      At trial, Defendant called Dr. Brittain to the stand as a

lay witness. The State objected, and the trial court conducted a

voir dire examination.

      On voir dire, Dr. Brittain discussed meetings he held with

the decedent in June and July of 2011, approximately one year

before the decedent’s death. Referencing his notes from those

meetings, Dr. Brittain testified that the decedent was angry and

frustrated with many “areas” of his life. By his second meeting

with the decedent, Dr. Brittain had begun “to surmise” that the

decedent was dealing with “aggression,” “thoughts of violence,”

and “conflict that he had with the people that were around him.”

In that meeting, Dr. Brittain and the decedent discussed “the

violence,” and Dr. Brittain stressed the need for the decedent

to   avoid   being    either   the   victim    or   the     perpetrator   in    a

confrontation. Dr. Brittain also referred to the decedent as “a

very angry man,” but noted that he was taking his medication,

“ha[d] not perpetrated violence,” and, in the decedent’s words,
                                        -24-
was “trying to not become angry and harm someone.” When asked

about the source of the decedent’s anger, Dr. Brittain testified

that it “permeated all of his life,” but noted that the source

was not specifically related to Defendant, who was not discussed

during the meetings.

       At the conclusion of voir dire, the trial court excluded

Dr. Brittain’s testimony in its entirety on relevance grounds

and under Rules 403 and 404(a)(2) of the North Carolina Rules of

Evidence.

             B. Legal Background and Analysis

       Defendant argues that the trial court erred in excluding

Dr. Brittain’s testimony, “[s]imply put, [because] a violent man

is    more   likely   to   be   the    aggressor   than       a    peaceable    man.”

Defendant     also    argues    that    this    error     prevented       him       from

offering important evidence in his defense and, thus, “denied

him   his    constitutional     right    to    present    a       defense.”    We    are

unpersuaded.

                  (1) Rule 404(a)(2)

       Rule 404 provides, in pertinent part, that:

             (a) . . . Evidence of a person’s character
             or   a  trait   of  his   character is not
             admissible for the purpose of proving that
             he acted in conformity therewith on a
             particular occasion, except:
                                     -25-
           . . .

                 (2) . . . Evidence of a pertinent
                 trait of character of the victim
                 of   the   crime   offered   by  an
                 accused, or by the prosecution to
                 rebut the same, or evidence of a
                 character trait of peacefulness of
                 the    victim    offered   by   the
                 prosecution in a homicide case to
                 rebut evidence that the victim was
                 the first aggressor.

N.C. Gen. Stat. § 8C-1, Rule 404.

    Character evidence is evidence of “[t]he peculiar qualities

impressed by nature or by habit on the person, which distinguish

him from others.” Bottoms v. Kent, 48 N.C. (3 Jones) 154, 160

(1855). A person’s character “can only be known indirectly . . .

by inference from acts. A witness called to prove them, can only

give the opinion which he has formed by his observations of the

conduct of the person under particular circumstances . . . .”

Id. As distinct from reputation, “character is what a man is”

and “reputation is what others say he is.” Kenneth S. Broun, 1

Brandis & Broun on North Carolina Evidence 253 (6th ed. 2004)

(emphasis in original).

    “Rule 404(a) is a general rule of exclusion, prohibiting

the introduction of character evidence to prove that a person

acted in conformity with that evidence of character.” State v.

Bogle,   324   N.C.   190,   201,   376   S.E.2d   745,   751   (1989).   Such
                                     -26-
evidence may be admitted, however, when testimony regarding a

pertinent character trait of the victim (here, the decedent) is

offered by the defendant in a criminal case. N.C. Gen. Stat. §

8C-1, Rule 404(a)(2). In cases where self-defense is at issue,

evidence of a victim’s violent or dangerous character may be

admitted under Rule 404(a)(2) when “(1) such character was known

to the accused, or (2) the [other] evidence of the crime is all

circumstantial or the nature of the transaction is in doubt.”

State v. Winfrey, 298 N.C. 260, 262, 258 S.E.2d 346, 347 (1979)

(emphasis added); see also State v. Blackwell, 162 N.C. 672, 78

S.E. 316 (1913) (“[Evidence] is . . . competent to show the

character of the deceased as a violent and dangerous man when

the   [remaining]    evidence   is     wholly   circumstantial    and    the

character of the encounter is in doubt.”) (emphasis added). This

is because the evidence of the victim’s violent character “tends

to shed some light upon who was the aggressor since a violent

man is more likely to be the aggressor than is a peaceable man.”

Winfrey, 298 N.C. at 262, 258 S.E.2d at 348 (emphasis added).

      In this case, the court excluded Dr. Brittain’s testimony

under Rule 404(a)(2) because the witness “didn’t testify as to

any   trait   or   character.   He   was    simply   testifying   as    to   a

fact. . . . He . . . was merely reciting what the facts were
                                      -27-
when    the    victim   presented     himself    [during     the     meetings].”

Defendant argues, however, that Dr. Brittain’s testimony should

have been admitted pursuant to State v. Everett, 178 N.C. App.

44, 630 S.E.2d 703 (2006), affirmed, 361 N.C. 217, 639 S.E.2d

442 (2007). In that case, the defendant, arguing that she killed

the victim in self-defense, presented evidence that the victim

had committed a separate violent act. Id. at 52, 630 S.E.2d at

708. The trial court excluded that testimony as irrelevant. Id.

at 50, 630 S.E.2d at 707. We reversed the trial court’s decision

under Winfrey and Rule 404(a)(2) and held that the evidence of

the violent act was relevant and admissible, in part, because it

was known by the defendant. Id. Defendant argues under Everett

that, “[w]ithout the testimony from Dr. Brittain, the jury was

unable to understand how [the decedent] was the aggressor. This

evidence      established,   through       specific   examples,      that     [the

decedent] was a violent man and likely was the aggressor. The

exclusion of this evidence by the trial court was error.” We

disagree.

       Dr. Brittain’s testimony        —     as the trial court noted in

excluding it under Rule 404(a) — does not constitute evidence of

the    decedent’s   character   for    violence.      When   asked    about    his

meetings with the decedent, Dr. Brittain testified to the fact
                                           -28-
that   the    decedent       was    an    angry    person       who   had   thoughts        of

violence. He did not, however, testify to his opinion that the

decedent was, inherently, a man of violent character or even a

violent person as distinguished from others. In fact, contrary

to   Defendant’s      argument       on    appeal,      Dr.     Brittain    affirmed        on

cross-examination          that     “there        was     no    evidence      that        [the

decedent]      was    actually       committing         any    acts   of    violence[.]”

Rather,     “[h]e    was     just    generally      frustrated        at    the    system.”

Because      Rule    404(a)(2)       only       allows        testimony     regarding       a

pertinent     character       trait,      the     trial       court   did   not     err    in

excluding      Dr.    Brittain’s         testimony       as    inadmissible        on     that

basis.

       To    the    extent    that       Dr.    Brittain’s       testimony        could    be

construed as character evidence, however, we note that this case

is   distinct       from   Everett.       In    Everett,       the    evidence      of     the

victim’s violent act fulfilled one of the Winfrey requirements —

it was known by the defendant — and, therefore, increased the

likelihood that the defendant acted out of self-defense. Dr.

Brittain’s testimony met neither requirement. First, it failed

to show that Defendant was aware of any anger issues or the

alleged violent nature of the decedent. Indeed, Dr. Brittain

clearly stated that the source of the decedent’s anger was not
                                       -29-
Defendant and that Defendant was not even discussed. Second,

there is ample direct evidence regarding the altercation between

the    decedent    and    Defendant.   The    altercation     was   recorded   on

Defendant’s tape recorder and was the subject of eye-witness

testimony. Such evidence is not circumstantial and, therefore,

does not allow the trial court to admit the evidence under Rule

404(a)(2). Accordingly, Defendant’s argument is overruled.

                   (2) Rules 401, 402, and 403

       Defendant     also    argues    that    the    trial   court    erred   in

excluding Dr. Brittain’s testimony as to Defendant’s character

for violence because “[the decedent’s alleged] violent character

is relevant as it relates to whether [he] was the aggressor” and

is not unfairly prejudicial under Rule 403 because “[i]ts only

prejudice to the State was its relevance to the defense.” This

argument is without merit.

       Rule 401 of the North Carolina Rules of Evidence states

that “‘[r]elevant evidence’ means evidence having any tendency

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule

401.    Rule   402       provides   that     “[a]ll   relevant      evidence   is

admissible, except as otherwise provided by the Constitution of
                                              -30-
the United States, by the Constitution of North Carolina, by Act

of Congress, by Act of the General Assembly or by these rules.

Evidence which is not relevant is not admissible.” N.C. Gen.

Stat. § 8C-1, Rule 402 (emphasis added). Rule 403 provides that

“[a]lthough relevant, evidence may be excluded if its probative

value    is    substantially           outweighed         by     the     danger     of    unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1,

Rule    403.    “We     review     a     trial       court’s          decision     to    exclude

evidence      under    Rule    403      for       abuse    of    discretion.”           State   v.

Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).

       Because we have already determined that the trial court

properly      excluded      Dr.    Brittain’s         testimony         as   not    admissible

under   Rule    404(a)(2),         we    need       not    address       these     alternative

bases    for    exclusion.         Nonetheless,            we    note     that     Defendant’s

argument      does    not    provide         any    reason       to    believe     that    Judge

Albright      acted    arbitrarily           or    was    manifestly         unreasonable       in

determining      that       “any   probative             value    of     this    evidence       is

substantially         outweighed        by    the    danger       of     unfair     prejudice,

confusion of the issues, or misleading the jury.” Defendant’s

argument is overruled.
                                      -31-
                   (3) Constitutional Right to Present a Defense

    As a part of his preceding arguments, Defendant contends

that the trial court’s exclusion of Dr. Brittain’s testimony

requires    a    new   trial   because    it   violated   his    constitutional

right to present witnesses in his own defense under Article VI

of the United States Constitution and Article 1, Section 23 of

the North Carolina Constitution. We disagree.

    As we noted in section I(C)(2), the right to present a

defense is not absolute and does not apply when a trial court

properly    deems      evidence    inadmissible       under     the   rules   of

evidence.       Because   we   have      determined   that      Dr.   Brittain’s

testimony was properly excluded by the trial court under Rule

404(a)(2), this argument is overruled.

    NO ERROR.

    Judges CALABRIA and ELMORE concur.
