              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-1141

                                Filed: 20 February 2018

Lee County, No. 10 CRS 53292

STATE OF NORTH CAROLINA

             v.

ISAAC TYRONE JACKSON, JR.


      Appeal by defendant from judgment entered 25 June 2015 by Judge Charles

W. Gilchrist in Lee County Superior Court.          Heard in the Court of Appeals 1

November 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick
      C. Mertz, for the State.

      Jarvis John Edgerton, IV, for defendant.


      ELMORE, Judge.


      Isaac Tyrone Jackson, Jr. (defendant) appeals from a judgment sentencing him

to life imprisonment without parole after he was convicted by a jury of first-degree

premeditated murder for the shooting death of his ex-girlfriend, Shamekia Griffin.

The sole issue on appeal is whether the trial court erred by allowing the State to elicit

testimony from a supplemental rebuttal expert, Nicole Wolfe, M.D., that the State

first disclosed to the defense during trial, in alleged violation of N.C. Gen. Stat. § 15A-

903(a)(2)’s pre-trial expert witness disclosure requirements.
                                  STATE V. JACKSON

                                   Opinion of the Court



      Although the State did not disclose Dr. Wolfe, her opinion, nor her expert

report before trial, we hold that defendant failed to demonstrate the trial court

abused its discretion in allowing the State to elicit her limited expert rebuttal

testimony. The State explained it sought Dr. Wolfe in direct response to its untimely

receipt, right before jury selection, of a primary defense expert’s final report, which

differed from that expert’s previously furnished report. Dr. Wolfe was a supplemental

rebuttal witness, not the State’s sole rebuttal witness, nor a primary expert

introducing new evidence. Defendant was able to fully examine Dr. Wolfe and the

basis for her opinion during a voir dire examination held eight days before her trial

testimony.   The trial court set parameters limiting Dr. Wolfe’s testimony.         And

defendant received the required discovery eight full days before Dr. Wolfe testified,

four days of which no court was held, providing the defense an opportunity to prepare

against her rebuttal testimony. Finally, although the defense moved to continue its

expert’s voir dire examination based on the State’s alleged untimely discovery

disclosures, it never moved for a continuance of trial or requested more time to

prepare for Dr. Wolfe’s rebuttal. On this record, we hold that defendant has failed to

demonstrate that the trial court abused its discretion in allowing Dr. Wolfe’s limited

rebuttal testimony and, therefore, that defendant received a fair trial, free of error.

                                   I. Background




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                                   Opinion of the Court



      The State’s trial evidence indicated that, on 19 November 2010, defendant

premeditatedly and deliberately shot and killed Shamekia in front of one of their

fifteen-year-old sons in an act of domestic violence. Defendant and Shamekia had a

long relationship history together and started dating in 1995, when they were around

sixteen years old. About three years later, they became parents to twin boys and,

after defendant’s sister kicked him out of her apartment for selling drugs, defendant

moved into Shamekia’s apartment. In 2002, defendant was arrested on federal drug

charges, later convicted of trafficking cocaine, and served around eight years in

federal prison. A few years into his prison sentence, defendant and Shamekia’s

relationship began to deteriorate. Shamekia eventually stopped visiting defendant

in 2007 and their relationship became “distanced.” In July 2010, after discovering he

had been approved for release to a halfway house that October, defendant attempted

to reconcile his relationship with Shamekia. They discussed defendant being a better

father to their children, obtaining a legitimate job, and not returning to selling drugs.

      A few weeks after defendant’s release to the halfway house in October 2010,

however, he returned to drug dealing. When Shamekia found out defendant returned

to hanging around with the friends he used to sell drugs with, she confronted him

about his promise not to deal drugs, which caused arguments. Defendant continued

hanging out with his friends, and they began making remarks about Shamekia

having seen other men. When Shamekia confronted defendant about selling drugs,



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defendant accused her of cheating on him. These arguments continued for several

days and progressed in intensity. Shamekia eventually told defendant: “[P]lease

don’t contact me anymore.” By 18 November 2010, Shamekia stopped responding to

his accusations. That day, defendant called and texted Shamekia repeatedly until

about 3:00 a.m.

      On the morning of 19 November 2010, defendant called Shamekia and

attempted to visit her at work, but Shamekia refused. Around 3:00 p.m., defendant

called Shamekia again. They continued to argue about defendant allegedly lying

about not returning to dealing drugs and Shamekia allegedly lying about having seen

other people. After the conversation ended, defendant called Shamekia multiple

times but was unable to reach her. Around 6:00 p.m., defendant asked his cousin to

give him a ride to Shamekia’s mother’s house in an attempt to locate Shamekia. After

Shamekia’s mother told defendant everything was fine and instructed him to return

to the halfway house, defendant and his cousin left. Around 8:00 p.m., defendant

asked a borrow a gun from his cousin and asked his cousin to drive him Shamekia’s

house. Shamekia’s car was not in the driveway, so defendant asked his cousin to drop

him off at a nearby McDonalds. After he ate, defendant called his cousin again, and

he picked him up. A short time later, defendant requested to borrow his cousin’s car.

Defendant then drove around, calling Shamekia and looking for her. Defendant had

called Shamekia nearly forty times that day.



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                                 Opinion of the Court



      Eventually, defendant spotted Shamekia’s car driving through the McDonald’s

drive-thru with one of their sons, and he called her.      Shamekia answered but

immediately gave the phone to her son. Defendant asked whether Shamekia was

with a man, and their son replied: “No.” Unbeknownst to Shamekia or their son,

defendant followed Shamekia’s car back to her house and parked nearby.

      After Shamekia and their son went inside and ate, defendant called Shamekia

again. Shamekia answered, and defendant demanded to know why she had been

refusing to answer his calls. Shamekia accused him of lying about drug dealing;

defendant accused her of lying about cheating on him. After their conversation ended,

defendant walked toward Shamekia’s house and called her again.            Shamekia

answered and replied “yeah” and then immediately hung up.           Defendant then

proceeded to enter Shamekia’s house at around 8:41 p.m. and fatally shoot her five

times in front of their son.

      On 13 December 2010, defendant was indicted for first-degree premeditated

murder. On 17 December 2010, defendant filed a “Request for Voluntary Discovery,”

seeking all information discoverable under N.C. Gen. Stat. § 15A-903.          On 6

September 2013, the State disclosed its proposed expert witness list, which did not

include Dr. Wolfe. On 18 September 2013, the defense alerted the State it might

present a diminished-capacity defense.




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                                   Opinion of the Court



      On 16 February 2015, three months before trial, the defense disclosed Dan

Chartier, Ph.D. and Moira Artigues, M.D. as its primary expert witnesses. Chartier,

a psychologist, was later tendered as an expert in administering a controversial

diagnostic tool called a qualitative electroencephalograph (qEEG).           While an

electroencephalograph (EEG) measures electrical patterns on the brain that reflect

cortical activity, qEEG qualitatively measures a patient’s EEG data by comparing it

to databases of other patients’ EEG data for statistical analysis. A patient’s qEEG

results are typically processed into topographical “brain maps” reflecting the

comparative cortical activity, which the defense argued can provide diagnostic value

in identifying relative brain functioning impairment.

      The defense furnished Chartier’s curriculum vitae, a first draft of Chartier’s

expert report containing his interpretative conclusions of defendant’s qEEG results,

and notice that Chartier would rely on qEEG to support his opinion that, at the time

of the shooting, defendant was incapable of forming the specific intent to kill required

for a first-degree premeditated murder conviction. According to Chartier, defendant’s

qEEG results showed significantly diminished electrical activity in his frontal and

central cortex, the brain centers responsible for governing “decision-making,

reasoning[,] and impulse control.” Based on these results, Chartier opined that

defendant suffered from “left hemisphere and frontal lobe dysfunction,” a mental




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                                   Opinion of the Court



disorder not recognized in the Diagnostic and Statistical Manual of Mental Disorders

(DSM).

      At a pretrial hearing on 12 March, defendant’s motion under N.C. Gen. Stat. §

15A-903(a)(2) for the State to disclose all of its experts was heard. That day, the State

disclosed Julia Messer Ph.D., a forensic psychologist who had previously examined

defendant’s capacity to stand trial, as the only expert it forecast calling to rebut a

diminished-capacity defense. At the conclusion of the hearing, the trial court ordered

that “all expert opinions be disclosed . . . within a reasonable time” and that, “[t]o the

extent that there is a motion in limine, that’s reserved for the trial judge. If there is

some question about not being disclosed, that’s for the trial judge to decide whether

to allow that evidence.”

      On 17 April, immediately before jury selection, the defense furnished

Chartier’s final report. In that report, Chartier’s ultimate conclusions and opinion

remained the same—that is, defendant’s qEEG results indicated he lacked the

mental capacity to form the specific intent to kill—but Chartier appeared to have

conducted further qEEG analysis, and the black-and-white brain maps included in

Chartier’s first report were now illustrated in color, enhancing their visual impact.

      On 26 May, immediately after jury selection but before empanelment, the

State informed the defense and the trial court that it had been “digesting, reviewing

and consulting on” Chartier’s final report, and first alerted the defense it was filing a



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                                    Opinion of the Court



motion in limine to contest the admissibility of Chartier’s testimony regarding the

qEEG testing on Daubert grounds.

      On 28 May, the State began its case-in-chief. On 1 June, outside the presence

of the jury, the State first disclosed it intended to call Dr. Nicole Wolfe, a forensic

psychiatrist, to testify at Chartier’s voir dire examination in rebuttal. The State

furnished Dr. Wolfe’s curriculum vitae, and disclosed that it intended to elicit opinion

testimony from Dr. Wolfe aimed at discounting the diagnostic utility of qEEG. The

defense objected on timeliness grounds, arguing that the State failed to disclose Dr.

Wolfe on any pre-trial expert witness lists, had just furnished her curriculum vitae,

and had not yet furnished her report. The State explained that it only sought Dr.

Wolfe in response to Chartier’s final April report that was untimely furnished right

before jury selection, which the State argued contained “marked differences” from

Chartier’s first February report.

      On Wednesday 3 June, after the State rested its case-in-chief, the trial court

requested copies of Chartier’s and Dr. Wolfe’s reports in preparation for Chartier’s

voir dire examination scheduled the next day. Defense counsel furnished Chartier’s

reports, but the State advised that, due to the short notice and scheduling issues, it

was unable to meet with Dr. Wolfe until the preceding Friday, and it had not yet

received her report. Around 4:45 p.m., immediately upon receipt, the State brought

Dr. Wolfe’s report to one of defendant’s trial counsel’s offices. Dr. Wolfe’s report was



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                                   Opinion of the Court



a 55-page PowerPoint presentation that contained multiple peer-reviewed journal

articles purportedly discounting qEEG’s diagnostic utility.

      On Thursday 4 June, over defendant’s request for a continuance based on the

State’s untimely discovery disclosures relating to Dr. Wolfe, Chartier’s scheduled voir

dire examination was held. After Chartier was examined, the trial court allowed Dr.

Wolfe to testify in rebuttal. After the hearing, the trial court denied the State’s

Daubert motion entirely, ruling that Chartier’s expert opinion testimony and the

contested qEEG evidence was admissible. In response, the State requested for the

first time that Dr. Wolfe be allowed to testify as a supplemental rebuttal expert

witness at trial.

      After a lengthy discussion on the propriety of allowing the State to elicit Dr.

Wolfe’s testimony, the trial court ruled that Dr. Wolfe be allowed to testify in rebuttal

within certain parameters:

             THE COURT: . . . I’m going to let Doctor Wolfe testify. I
             think generally she can qualify as a forensic psychiatrist.
             I think she can talk about whether she relies on QEEG,
             what she knows about the general practice in her field,
             about similar experts relying upon that methodology, and
             she can state generally why, in her opinion, it’s not a
             reliable methodology for a forensic psychiatrist to rely
             upon. Now, you know, beyond that basis, she is not an
             expert in the administration of QEEG. . . .

      The trial court further elaborated:

             THE COURT: The main point is that, as I understand it,
             the [State] does not intend to elicit testimony that [Dr.


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                                    Opinion of the Court



             Wolfe] gleaned from these various articles that she testified
             about during the hearing before the Court on QEEG. She
             can testify about her general area of expertise in forensic
             psychiatry, whether or not she relies on the test, her
             knowledge about whether other forensic psychiatrists
             generally rely upon the test, and why it is or is not relied
             upon. In other words, if [Dr. Wolfe] doesn’t rely upon it, it’s
             her understanding generally in the field forensic
             psychiatrists don’t rely upon it because there are questions
             about its validity. . . . That’s within her field of expertise to
             say that. She is not an expert in administering QEEG. . . .
             [T]estimony about the administration of [QEEG] and
             interpretation of the results of the type that’s talked about
             in the PowerPoint, that would not be a proper area for [Dr.
             Wolfe] to testify to. . . .

      Additionally, the trial court prohibited the State from introducing Dr. Wolfe’s

full report, limiting its admission to only a few slides that it required the State to

select and furnish to the defense at that time.

      On Friday 5 June, the defense began its case-in-chief and called defendant to

testify before the jury. Defendant testified in relevant part that while he remembered

everything leading up to and after the shooting, his emotions were running so high

because he believed that Shamekia had just admitted to cheating on him, that he did

not remember actually shooting Shemekia. But after his memory returned, he saw

her lying dead on the floor, realized he was holding a gun, and conceded that he

believed he must have shot and killed her.

      No court was held on the following Monday or Tuesday. On Wednesday 10

June, the case resumed, and the defense called Chartier to testify. According to



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                                   Opinion of the Court



Chartier, defendant’s qEEG results revealed notable statistical deviations of

electrical activity in the frontal and central temporal cortical regions of his brain,

particularly in an area “involved in the control of emotions” and “significantly” in the

area controlling language ability, which might manifest in “misinterpret[ing] the

actions or behavior of others.” Based on these results, Chartier opined that defendant

suffered from “left hemisphere and frontal lobe dysfunction.” He further opined:

             Based on these consistent, combined findings from the
             multiple analyses of [defendant]’s EEG data, it is apparent
             to a high degree of neuropsychological certainty that this
             unfortunate gentleman suffers with significant neuro-
             cognitive deficits that are consistent . . . with[ ] impaired
             reasoning, judgment, decision-making and impulse control.

Chartier also opined that these neurocognitive deficiencies would be more

pronounced when someone is stressed, emotional, or upset.

      On Thursday 11 June, after Chartier’s testimony, the defense called Dr.

Artigues, tendered as an expert in general and forensic psychiatry, to testify. Dr.

Artigues performed a forensic psychiatric evaluation on defendant. Based on his

interview with defendant and his review of defendant’s medical history and records,

including Chariter’s qEEG report, Dr. Artigues diagnosed defendant with

“personality disorder with borderline dependent and antisocial traits and with frontal

lobe syndrome.” Dr. Artigues conceded that frontal lobe syndrome is not recognized

as a medical diagnosis in the DSM, and that he relied on his review of Chartier’s

qEEG report for this part of his diagnosis. According to Dr. Artigues, defendant’s


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                                    Opinion of the Court



“ability to plan was seriously impaired, if not completely wiped out” and he could not

“weigh the consequences of harming Shamekia in a rational way” at the time he shot

her. Dr. Artigues opined that he “d[id] not believe [defendant] could form the specific

intent to kill at the time of the shooting.”

      On Friday 12 June, after the defense rested, the State called Dr. Wolfe, over

defendant’s objection, and Messer to testify in rebuttal.       Dr. Wolfe, a forensic

psychiatrist, testified in relevant part that, after having examined peer-reviewed

journal articles while researching the diagnostic utility of qEEG, her practice of not

using qEEG as a diagnostic tool has not changed. Dr. Wolfe testified that neither she

nor any psychiatrist she had worked with at any facility used qEEG for psychiatric

diagnostic purposes. According to Dr. Wolfe, qEEG was not helpful “with assisting

in a psychiatric diagnosis.” She explained that “electrical brain wave activities” as

recorded in an EEG have no “particularly defined appearance,” and that psychiatric

diagnoses tend to consist of a combination of multiple different issues, meaning a

patient typically does not have just one diagnosis. Thus, Dr. Wolfe explained, while

having a patient’s EEG results might be useful in limited circumstances when

combined with other diagnostic tools, such as an MRI; standing alone, EEG results

are “not useful to [her] clinically at all” and, “in general, [q]EEG is not helpful for

diagnosis.”




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                                   Opinion of the Court



      Messer, a forensic psychologist, had previously performed a court-ordered

competency evaluation on defendant and had concluded that he was competent to

stand trial. Messer testified that defendant suffered from no mental disorder she

could identify that would account for his stated inability to remember the shooting.

Messer explained that based on her psychological examination, defendant

“demonstrated an ability to form intent, make rational decisions[,] and carry out

actions” and, therefore, opined that defendant was capable at the time of the shooting

to form the requisite specific intent to kill. Messer also discounted the defense

experts’ reliance on qEEG to support their opinions, testifying that neither she nor

any psychiatrists or psychologists she works with uses qEEG diagnostically.

      After the presentation of evidence, the jury convicted defendant of first-degree

premeditated murder, and the trial court sentenced defendant to life in prison

without parole. Defendant appeals.

                                     II. Analysis

      On appeal, defendant contends the trial court violated N.C. Gen. Stat. § 15A-

903(a)(2)’s statutory mandates when it allowed Dr. Wolfe’s expert rebuttal testimony

on the ground that the State violated that statute’s discovery requirements relating

to expert witness disclosures. We hold that the trial court did not abuse its discretion

in allowing Dr. Wolfe’s limited rebuttal testimony.

A. Review Standard



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                                   Opinion of the Court



      As an initial matter, the parties dispute the proper appellate review standard.

The State argues that the typical abuse-of-discretion review standard applies to

defendant’s allegation that the trial court erred in allowing the State to call Dr. Wolfe

as an expert witness. Defendant argues that, under State v. Davis, 368 N.C. 794, 785

S.E.2d 312 (2016), de novo review is proper because N.C. Gen. Stat. § 15A-903(a)(2)

imposes a statutory mandate. Defendant misconstrues Davis. Abuse-of-discretion

review properly applies here.

      In Davis, after “not[ing] that usually determining whether the State failed to

comply with discovery is a decision left to the sound discretion of the trial court,” 368

N.C. at 797, 785 S.E.2d at 314 (citation, brackets, and internal quotation marks

omitted), our Supreme Court reviewed de novo a challenge to the application of N.C.

Gen. Stat. § 15A-903(a)(2) when addressing “whether the trial court erred in

admitting the opinion testimony of [the State’s expert witnesses].” Id. (internal

quotation marks omitted). The Davis Court, however, applied de novo review not

because N.C. Gen. Stat. § 15A-903(a)(2) imposes statutory mandates, but because

determining whether the State’s experts’ testimonies constituted “expert[ ]

opinion[s]” under N.C. Gen. Stat. § 15A-903(a)(2) was a “question . . . of statutory

interpretation[.]” Id. at 797–98, 785 S.E.2d at 315; see also id. at 798, 785 S.E.2d at

315 (“The central question here is whether the State’s expert witnesses gave opinion

testimony so as to trigger the discovery requirements under section 15A-903(a)(2).”).



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                                   Opinion of the Court



      Here, contrarily, the central question is not whether Dr. Wolfe gave

discoverable expert opinion testimony that triggered application of N.C. Gen. Stat. §

15A-903(a)(2), but whether the State violated that discovery statute by failing timely

to disclose discovery related to Dr. Wolfe. Unlike in Davis, addressing the central

issue raised here does not require that we interpret N.C. Gen. Stat. § 15A-903(a)(2),

and thus the “usual[ ]” abuse-of-discretion review standard applies. Davis, 368 N.C.

at 797, 785 S.E.2d at 314.

      Under abuse-of-discretion review, “[t]he trial court may be reversed . . . only

upon a showing that its ruling was so arbitrary that it could not have been the result

of a reasoned decision.” State v. Cook, 362 N.C. 285, 295, 661 S.E.2d 874, 880 (2008)

(citation and quotation marks omitted).

B. Discussion

      Defendant contends the State, within a reasonable time before trial, failed to

disclose its intent to call Dr. Wolfe as an expert, or the nature of Dr. Wolfe’s opinion

testimony, in violation of N.C. Gen. Stat. § 15A-903(a)(2).

      “[T]he purpose of discovery under our statutes is to protect the defendant from

unfair surprise by the introduction of evidence he cannot anticipate.” Davis, 368 N.C.

at 798, 785 S.E.2d at 315 (citation and quotation marks omitted). N.C. Gen. Stat. §

15A-903(a)(2) (2015) imposes expert witness disclosure requirements on the State

and provides in pertinent part:



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                                  Opinion of the Court



             (a) Upon motion of the defendant, the court must order:

             ....

                    (2) The prosecuting attorney to give notice to the
                    defendant of any expert witnesses that the State
                    reasonably expects to call as a witness at trial. Each
                    such witness shall prepare, and the State shall
                    furnish to the defendant, a report of the results of
                    any examinations or tests conducted by the expert.
                    The State shall also furnish to the defendant the
                    expert’s curriculum vitae, the expert’s opinion, and
                    the underlying basis for that opinion. The State shall
                    give the notice and furnish the materials required by
                    this subsection within a reasonable time prior to
                    trial, as specified by the court.

(Emphasis added.) Additionally, once the State has provided discovery under this

statute it maintains a continuing duty to disclose additional discovery. N.C. Gen.

Stat. § 15A-907 (2015).

      Our review of the record reveals, and defendant has failed to demonstrate

otherwise, the trial court did not abuse its discretion in allowing Dr. Wolfe’s limited

rebuttal testimony, even though the State first disclosed her as an expert at trial.

      As early as February 2015, the defense knew it was introducing qEEG evidence

to support its diminished-capacity defense in part, and that the State intended to call

an expert witness to rebut that defense. Although the defense furnished Chartier’s

first qEEG report at that time, it did not furnish Chartier’s final qEEG report until

right before jury selection on 17 April. On 26 May, the State explained that, after it

had time to review and consult on Chartier’s final April report, it was filing a motion


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                                   Opinion of the Court



in limine on Daubert grounds to contest the admissibility of Chartier’s expert opinion

testimony relating to the qEEG testing.

      On 1 June, the State disclosed that it intended to call Dr. Wolfe to testify at

Chartier’s voir dire examination to rebut the diagnostic utility of qEEG and furnished

her curriculum vitae. After defendant objected on untimely disclosure grounds, the

State explained it only sought Dr. Wolfe “in response to [Chartier’s final] report [the

State] received on the Friday before jury selection began in this case.” According to

the State, Chartier’s final report contained two additional pages of analysis, enhanced

the brain mapping images with color, and contained “marked differences” from his

first report. Chartier later admitted that his April report was “absolutely different”

from his February report and that “further analysis had been done at that point.”

The trial court was in the best position to determine the extent to which those reports

differed, such that the State might not have reasonably forecast calling Dr. Wolfe in

rebuttal until after it had time to review and consult on Chartier’s final report.

      On the morning of 4 June, the defense was able to review Dr. Wolfe’s report,

and after Chartier’s voir dire examination, it was afforded the opportunity to fully

examine Dr. Wolfe, her credentials, and the basis for her opinion. After the trial court

ruled to allow Dr. Wolfe’s rebuttal testimony, it set parameters limiting her testimony

and restricting the use of her report to only a few slides that it required the State to

identify and furnish to the defense that day. Although the State did not disclose its



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                                    Opinion of the Court



intent to call Dr. Wolfe in rebuttal at trial until after Chartier’s voir dire examination

and its Daubert motion was denied, Dr. Wolfe did not actually testify until 12 June.

      Defendant received all required discovery eight days before Dr. Wolfe testified

in rebuttal at trial, and no court was held on four of those days.            The State’s

disclosures were thus made in time for effective use at trial. Cf. State v. Jackson, 340

N.C. 301, 317, 457 S.E.2d 862, 872 (1995) (concluding that the trial court granting a

four-day continuance “afforded the defense opportunity to meet [previously

undisclosed lay opinion testimonial] evidence”). Further, the State did not call Dr.

Wolfe to introduce entirely new evidence, but to rebut the qEEG evidence defendant

had intended months earlier to introduce. Defendant thus cannot complain that he

was “unfair[ly] surprise[d] by the introduction of evidence he [could ]not anticipate.”

Davis, 368 N.C. at 798, 785 S.E.2d at 315 (citation and quotation marks omitted).

      Moreover, although the defense attempted to move for a continuance before

Chartier’s voir dire examination on untimely discovery disclosure grounds, the

defense never moved for a continuance after the trial court ruled to allow Dr. Wolfe

to testify in rebuttal at trial. Cf. State v. Herrera, 195 N.C. App. 181, 199, 672 S.E.2d

71, 83 (2009) (“[A]ssuming, arguendo, that the State did violate the discovery statute

provisions, . . . we conclude the trial court did not abuse its discretion in allowing this

testimony especially when defendant did not request a recess or continuance to

address this newly disclosed evidence.” (emphasis added)).          Nor did the defense



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indicate that it had inadequate time to prepare effectively to develop meaningful

impeachment or rebuttal evidence for Dr. Wolfe’s cross-examination. Cf. State v.

McCail, 150 N.C. App. 643, 652, 565 S.E.2d 96, 102 (2002) (“There is no indication

that defense counsel’s receipt at that time (1) prevented development of important

impeachment evidence or (2) resulted in ineffective cross-examination of any

witnesses or representation of defendant.”). Accordingly, defendant has failed to

demonstrate that the trial court abused its discretion in allowing Dr. Wolfe’s limited

rebuttal testimony.

                                   III. Conclusion

      Defendant’s allegation that the trial court erred by allowing Dr. Wolfe to testify

in rebuttal due to the State’s alleged discovery disclosure violations raised no issue

requiring we interpret N.C. Gen. Stat. § 15A-903(a)(2). Accordingly, unlike in Davis,

the usual abuse-of-discretion standard applies to the question presented here.

      Although the State failed to disclose, within a reasonable time before trial, Dr.

Wolfe as a rebuttal expert witness, her opinion, or her report, the State explained it

only sought Dr. Wolfe in response to Chartier’s untimely furnished final report, which

it believed differed significantly from his first report. The trial court was in the best

position to determine whether Chartier’s reports differed such that the State would

not have reasonably forecast calling Dr. Wolfe to rebut Chartier’s expert testimony

or the qEEG evidence until after the State had time to review Chartier’s final report.



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Additionally, the defense was afforded the opportunity to fully examine Dr. Wolfe at

Chartier’s voir dire examination; the trial court limited Dr. Wolfe’s rebuttal testimony

and the use of her report; the defense was furnished all required discovery eight days

before Dr. Wolfe testified, and no court was held on four of those days; and defendant

never moved for a continuance of trial or requested additional time to prepare for Dr.

Wolfe’s rebuttal testimony.

       On this record, defendant has failed to demonstrate that the trial court’s ruling

was so arbitrary that it could not have been the result of a reasoned decision.

Accordingly, we hold that the trial court did not abuse its discretion in allowing Dr.

Wolfe’s limited rebuttal testimony and, therefore, that defendant received a fair trial,

free of error.

       NO ERROR.

       Judges DIETZ and INMAN concur.




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