               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-841

                                 Filed: 18 July 2017

Wake County, Nos. 13 CRS 209228, 13 CRS 209337

STATE OF NORTH CAROLINA

              v.

JONATHAN WAYNE BROYHILL, Defendant.


        Appeal by defendant from judgments entered 19 March 2015 by Judge Paul C.

Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 19 April

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General Mary Carla
        Babb, for the State.

        Rudolf Widenhouse, by M. Gordon Widenhouse Jr., for defendant-appellant.


        ELMORE, Judge.


        Defendant Jonathan Broyhill was convicted of first-degree murder for the

death of Jamie Hahn, and attempted first-degree murder and assault with a deadly

weapon with intent to kill inflicting serious injury against Nation Hahn. Defendant

appeals, arguing that (1) the trial court erred in excluding the testimony of his

psychiatrist, Dr. Badri Hamra, on the basis that Dr. Hamra’s proffered testimony

constituted expert opinion testimony which had not been disclosed pursuant to a

reciprocal discovery order; (2) the trial court unduly restricted defendant’s voir dire
                                 STATE V. BROYHILL

                                  Opinion of the Court



of prospective jurors concerning their ability to fairly assess the credibility of

witnesses; and (3) the trial court erred in excluding defendant’s two prior custodial

statements while admitting the third statement into evidence at trial. Upon review,

we conclude that defendant received a fair trial, free from error.

                                   I. Background

      On 20 May 2013, a Wake County Grand Jury indicted defendant on charges of

first-degree murder, attempted first-degree murder, and assault with a deadly

weapon with intent to kill inflicting serious injury. A jury trial was held at the 23

February 2015 Criminal Session of the Superior Court for Wake County, the

Honorable Paul C. Ridgeway presiding. The State’s evidence at trial tended to show

the following:

      Defendant was a close friend to Nation and Jamie Hahn. He and Nation

became friends after a church trip, when Nation was entering his freshman year of

high school in Lenoir. Defendant had just graduated from the same school but Nation

would often visit him at his job in a local paint store. After high school, Nation

attended the University of North Carolina at Chapel Hill, where he met Jamie while

both were volunteering for a presidential campaign. Nation and Jamie started dating

and were eventually married. As with Nation, defendant and Jamie quickly became

friends. Defendant even served as Nation’s best man at the Hahns’ wedding.




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                                  Opinion of the Court



      In April 2010, Jamie hired defendant at her political consulting firm, Sky Blue

Strategies. Sky Blue provided clients with a variety of campaign services, including

strategy, fundraising, and compliance. U.S. Congressman Brad Miller hired Sky Blue

the following year for his re-election campaign. Jamie focused on fundraising and

strategy, while defendant handled Federal Elections Commission (FEC) compliance,

managed campaign donations, and disbursed funds for campaign expenses.

Defendant was a signatory on the campaign’s bank account.

      In fall 2011, Congressman Miller suspended his re-election campaign, leading

Sky Blue to shift its focus from fundraising toward issuing refund checks to donors.

Due to the change in circumstances, defendant became primarily responsible for the

remaining work on the campaign. Unbeknownst to Jamie, defendant wrote checks to

himself out of the campaign account from June 2011 to March 2013. The checks

totaled more than $46,500.

      Near the end of his employment with Sky Blue, defendant started to complain

of various health issues. In August 2012, he told the Hahns he had Multiple Sclerosis

and was seeking treatment. Defendant also reported problems with his gallbladder,

claiming he had scheduled surgery to remove gallstones. In November or December

2012, defendant expressed to Jamie that, in light of his health problems, he would

need to find a less stressful job. Recognizing that Sky Blue could no longer afford to




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                                  Opinion of the Court



pay defendant without revenue from the Miller campaign, Jamie agreed to help

defendant find a job elsewhere.

      Jamie soon discovered that certain Miller campaign expenses had not been

paid. Although he was no longer employed by Sky Blue, defendant continued to

manage campaign finances and FEC quarterly reports. In early 2013, Jamie received

inquiries from campaign staffers concerning delays in refund check disbursements.

Defendant avoided Jamie’s requests for information on the campaign finances, citing

his preoccupation with the upcoming gallbladder surgery.

      Defendant eventually agreed to meet with Jamie at the Hahns’ home on 8 April

2013 to draft the quarterly report due the following week. When he failed to show,

defendant claimed he was working late at his new job with LabCorp, a job he did not

have. Defendant agreed to reschedule their meeting for the next evening. Upon his

arrival, defendant appeared “very weak, sort of white faced.” He told Nation that

doctors had discovered a spot when they removed his gallstones, a spot which they

believed was pancreatic cancer. Stunned by the news, the Hahns spent the evening

comforting defendant rather than drafting the report.

      Two days later, the Hahns arranged to take defendant to Duke Cancer

Hospital to confirm his diagnosis. When defendant failed to meet at their home as

planned, Nation and Jamie became concerned and drove to defendant’s house. He

answered the door “in a daze,” claiming he overslept. At this point, defendant realized



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                                 Opinion of the Court



he would certainly miss the appointment.       He pretended to call the hospital to

reschedule for the next day and, at Jamie’s suggestion, agreed to help with the

quarterly report for the rest of the afternoon. Moments after arriving at the Hahns’

home, defendant informed Jamie that he forgot to bring his computer. He left to

retrieve it but never returned. Jamie made repeated attempts to contact defendant

to no avail.

       When the Hahns finally heard from defendant the next morning, he told them

he was at the beach. He said he had been fired from LabCorp, and with his “presumed

cancer diagnosis,” he “just needed to get away.” Defendant apologized and assured

Jamie that he would be back in time to prepare the quarterly report. The Hahns,

meanwhile, had planned a week-long vacation at the beach to celebrate their

anniversary and Nation’s birthday. Jamie asked defendant to reschedule his doctor’s

appointment for 15 April 2013, so that she and Nation could attend before leaving for

the beach.

       On Sunday, 14 April 2013, defendant purchased a large chef’s knife before

driving to the Hahns’ residence to finalize the quarterly report with Jamie. He and

Jamie met downstairs while Nation worked upstairs in his office. During their

meeting, Jamie received a message from Nation informing her that, according the

FEC website, the Miller campaign’s 2012 fourth quarter report had never been filed.




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                                  Opinion of the Court



When pressed by Jamie, defendant assured her that he filed the report and had

received confirmation via facsimile from the FEC.

      The next morning, Jamie and defendant met with Congressman Miller’s

campaign treasurer, John Wallace, to review the completed draft of the quarterly

report. The report revealed a continuing indebtedness to Congressman Miller, a debt

which Wallace believed had been retired. He requested that the draft be amended to

reflect the debt as paid before the report was submitted to the FEC. At the time, a

separate discrepancy in the draft report was overlooked. The report indicated that

the campaign had $62,914.52 in cash at the end of the first quarter when, in fact, the

campaign account had a negative balance of $3,587.06.

      After the meeting with Wallace, Nation and Jamie drove defendant to Duke

Cancer Hospital for his appointment.        Upon their arrival, the Hahns dropped

defendant off at the entrance to check in while Nation and Jamie parked the car.

When they reconvened inside, defendant said he had to go in for tests and the nurses

would call the Hahns if needed. Nation and Jamie sat down in the lobby while

defendant went through a set of double doors behind the reception desk. Defendant

admitted to police that he did not have a doctor’s appointment that day. He walked

around the hospital for nearly two hours while the Hahns waited in the lobby. When

he returned, defendant told them “he did indeed have pancreatic cancer but the

doctors were hopeful.”



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                                 STATE V. BROYHILL

                                 Opinion of the Court



      The Hahns drove defendant back to Raleigh before leaving for the beach. On

the way out of town, Jamie received a call from Congressman Miller’s office informing

her that a check written from the campaign account had bounced. Based on the first

quarter report, Jamie believed the campaign account had more than sufficient funds.

She decided that the returned check must have been a mistake.

      On Wednesday, 17 April 2013, Wallace e-mailed Jamie and defendant about

recent communications between the FEC and the Miller campaign. The FEC had

requested additional information to address concerns over suspicious disbursements

from the campaign account. The FEC had also informed the campaign that it had

failed to timely file a report covering the last quarter of 2012. Defendant responded

on the e-mail thread: “Good afternoon, John. I am working on this now, and I will be

in touch.” In light of defendant’s prior assurances and his e-mail response, Jamie

assumed that defendant had the issues under control. Defendant never followed up

with Wallace.

      The Hahns returned from the beach the following Sunday.          Shortly after

midnight, defendant used Nation’s credit card to purchase a one-way airline ticket

from Charlotte to Las Vegas, departing Monday afternoon. He canceled his flight

reservation one hour before take-off. Defendant opted instead to purchase a one-way

train ticket from Raleigh to Charlotte, departing Tuesday morning.




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                                 STATE V. BROYHILL

                                  Opinion of the Court



      On Monday, 22 April 2013, defendant and Jamie met at the Hahns’ home to

finalize matters with Congressman Miller’s campaign. In his backpack, defendant

concealed the chef’s knife he had recently purchased. Nation arrived home around

5:00 p.m. Jamie, he noticed, was on the phone in her office downstairs and defendant

was walking through the kitchen. Nation greeted defendant with a hug and invited

him to stay the night before another doctor’s appointment in the morning. Defendant

answered equivocally but added that “he had his clothes packed with him in case he

did.” After their brief conversation, Nation proceeded upstairs to change out of his

work clothes and into his running gear.

      Shortly thereafter, Nation heard Jamie screaming from downstairs. He threw

open the bedroom door and ran down the stairs shouting, “What’s happening?” Jamie

cried out, “He’s trying to kill me.” Nation rounded the corner of the staircase when

he saw blood on the floor and defendant standing over Jamie with a knife. Nation

shouted, “What the fuck are you doing?” Defendant said nothing as he turned and

came at Nation, raising the knife in the air as he moved closer. Nation grabbed the

blade with one hand and started striking defendant in the face with the other. As

the struggle continued, Nation yelled at Jamie to get out of the house. Jamie, covered

in blood, ran out the side door and collapsed in a neighbor’s yard. After gaining

separation from defendant, Nation followed Jamie out of the house while shouting for




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                                   Opinion of the Court



someone to call 9-1-1. Neighbors tended to Nation and Jamie until the ambulance

arrived.

      Police surrounded the Hahns’ home and ordered defendant to come outside.

He exited the house calmly with his hands in the air. Officer Roy Smith observed

self-inflicted knife wounds on defendant’s wrists and a stab wound to his stomach.

To Officer Smith, defendant’s self-inflicted wounds were indicative of an attempted

suicide. Officer Smith rode in the ambulance transporting defendant to the hospital.

As EMS workers spoke with defendant, he became visibly upset and started weeping.

He told them, “It’s been a long time coming,” and said repeatedly, “I just want to die.”

      Jamie died in the hospital two days later as a result of her injuries. An autopsy

revealed multiple stab wounds, including one to her torso which penetrated her liver,

and another to her chest which penetrated her lung and severed an artery. Nation

survived the attack with injuries to his hands, including a deep laceration which

transected an artery, tendons, and nerves in two fingers on his left hand.

      While defendant was hospitalized, police conducted three custodial interviews

on 23, 25, and 26 April 2013, respectively. The State introduced the recording and

transcript of the 26 April interview, which were published to the jury.           Over

defendant’s objection, the court declined to admit transcripts of the 23 and 25 April

interviews.




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                                  Opinion of the Court



      During the 26 April 2013 interview, defendant admitted that he had embezzled

money from the Miller campaign and had lied about his gallbladder surgery, his

pancreatic cancer, and his appointments at Duke Cancer Hospital. Defendant also

reported bouts with depression and thoughts of suicide, claiming he often heard

voices telling him to hurt other people, he had bought the knife to hurt himself, and

he had planned on traveling to Las Vegas to commit suicide. At his last meeting with

Jamie, defendant anticipated a conversation about the discrepancies in the campaign

account.   When asked to describe his memory of that night, defendant recalled

stabbing Jamie but did not recall attacking Nation or cutting himself.

      At trial, defendant offered testimony of his family members and a nurse

psychotherapist, Susan Simon, who saw defendant for ten sessions between February

and May 2012. Among other things, Ms. Simon testified that during the sessions

defendant expressed feelings of worthlessness and depression. Upon the State’s

objections, the court refused to admit the proffered testimony of Dr. Badri Hamra, a

psychiatrist with the North Carolina Department of Public Safety, who treated

defendant fifteen months after his arrest.

      At the conclusion of trial, the jury found defendant guilty of first-degree

murder, attempted first-degree murder, and assault with a deadly weapon with

intent to kill inflicting serious injury. The trial court sentenced defendant to a term




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                                   Opinion of the Court



of life in prison without parole, and consecutive terms of 157 to 201 months and 73 to

100 months. Defendant entered notice of appeal in open court.

                                    II. Discussion

A. Discoverable Expert Opinion Testimony

      Defendant first argues that the trial court erred in excluding the proffered

testimony of Dr. Hamra. After voir dire, the court determined that Dr. Hamra was

rendering expert opinion testimony, thereby triggering the discovery requirements of

N.C. Gen. Stat. § 15A-905(c)(2). Because defendant failed to disclose Dr. Hamra as

an expert witness pursuant to the reciprocal discovery order, the court did not allow

Dr. Hamra to testify at trial. The court also concluded, in the alternative, that Dr.

Hamra’s testimony was not relevant, and if it was, the probative value of his

testimony was substantially outweighed by the danger of unfair prejudice, confusion

of the issues, and misleading the jury. Defendant maintains that Dr. Hamra was

testifying as a fact witness, outside the scope of the reciprocal discovery order, and

the testimony was relevant to the issue of premeditation and deliberation, such that

the court’s decision to exclude it constitutes reversible error.

       Rule 702(a) of the North Carolina Rules of Evidence provides: “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



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                                         Opinion of the Court



of an opinion, or otherwise . . . .” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2015). An

expert’s testimony relies upon “scientific, technical or other specialized knowledge” to

“provide insight beyond the conclusions that jurors can readily draw from their

ordinary experience.” State v. McGrady, 368 N.C. 880, 889, 787 S.E.2d 1, 8 (2016).

Lay testimony, by contrast, is based on personal knowledge of facts “which can be

perceived by the senses.” N.C. Gen. Stat. § 8C-1, Rule 602 cmt. (2015); see also N.C.

Gen. Stat. § 8C-1, Rule 701 (2015) (providing that lay opinion testimony is limited to

opinions which are “rationally based on the perception of the witness”). A lay witness

may state “ ‘instantaneous conclusions of the mind as to the appearance, condition,

or mental or physical state of persons, animals, and things, derived from observation

of a variety of facts presented to the senses at one and the same time.’ ” State v. Leak,

156 N.C. 643, 647, 72 S.E. 567, 568 (1911)1 (emphasis added) (quoting John Jay

McKelvey, Handbook of the Law of Evidence § 132 (rev. 2d ed. 1907)), quoted in State

v. Stager, 329 N.C. 278, 321, 406 S.E.2d 876, 901 (1991).

       Our Supreme Court recently explained the threshold difference between expert

opinion and lay witness testimony: “[W]hen an expert witness moves beyond

reporting what he saw or experienced through his senses, and turns to interpretation

or assessment ‘to assist’ the jury based on his ‘specialized knowledge,’ he is rendering



1  We have maintained the predominant citation to the North Carolina Reports, for the sake of
consistency, but include the correct citation for those individuals referencing the bound volumes: State
v. Leak, 156 N.C. 518, 521 (1911).

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an expert opinion.” State v. Davis, 368 N.C. 794, 798, 785 S.E.2d 312, 315 (2016)

(footnote omitted) (quoting N.C. Gen. Stat. § 8C-1, Rule 702(a)); see also David P.

Leonard, The New Wigmore: Expert Evidence § 2.6 (2009) (“[W]hile an expert relies

on scientific, technical, or other specialized knowledge, lay testimony is based solely

on the perception of the witness. . . . Application of specialized knowledge from

whatever source would bring the testimony within the sphere of expertise.” (footnote

omitted) (internal quotation marks omitted)).

      Ultimately, “what constitutes expert opinion testimony requires a case-by-case

inquiry” through an examination of “the testimony as a whole and in context.” Davis,

368 N.C. at 798, 785 S.E.2d at 315. We review de novo the trial court’s conclusion

that Dr. Hamra’s proffered testimony constitutes discoverable expert opinion

testimony. See id. at 797–98, 785 S.E.2d at 314–15 (applying de novo review to

determine “whether the State’s expert witnesses gave opinion testimony so as to

trigger the discovery requirements under section 15A-903(a)(2)”). “ ‘Under a de novo

review, the court considers the matter anew and freely substitutes its own judgment’

for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d

290, 294 (2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. P’ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003)).

      During voir dire, defendant elicited the following testimony from Dr. Hamra:

             Q. As a psychiatrist, do you ever prescribe medication for
             an inmate if you believe that it will help them to deal with


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                       STATE V. BROYHILL

                       Opinion of the Court



any mental health issues they may be dealing with?

A. Yes, sir.

....

Q. When you treated Mr. Broyhill, did you prescribe any
medications for him to take to deal with his mental health
issues?

A. Yes, I did.

Q. Among the medications that you prescribed for Mr.
Broyhill, were any of them for anxiety, depression, or
psychosis?

A. All of them were.

Q. Could you please tell us what medications you
prescribed for Mr. Broyhill when he was your patient.

A. There are four medications given to him. One is called
Effexor XR. . . . The next one is Zoloft . . . . The third one
is Buspar . . . . And the last one is Risperdal . . . .

....

Q. Even though you review a patient’s past summary, do
you still make your own evaluation as to whether that
patient is in need of medication?

A. That is my job, sir.

....

Q. Did your review of the medical summary that was
provided indicate that he had been on psychiatric
medications prior to coming into your care?

A. Yes, he was.


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                     Opinion of the Court




....

Q. When a patient gets transferred from one facility to
another, does that patient continue to get psychiatric
medications that had been prescribed for him at the
previous facility?

A. He will be automatically on them until he sees the
doctor, which is in case me [sic], and then I make a decision
whether to keep them or change them.

Q. And then if you decide to change it, at that point, you
can change it?

A. Oh, absolutely, yes.

Q. Is this what happened in Mr. Broyhill’s case?

A. No, sir. He stayed on the same medications.

Q. Did he stay—did he continue to receive psychiatric
medications until you were able to see him yourself?

A. Yes.

Q. After you saw him, you continued him on these
medications?

A. Yes, I did.

....

Q. . . . Dr. Hamra, to your knowledge and based upon the
records you reviewed, is it fair to say that since his arrest
Mr. Broyhill has been held in custody as a safekeeper and
has consistently been prescribed psychiatric medications
for his mental health needs?

A. Yes, sir.


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                                  STATE V. BROYHILL

                                  Opinion of the Court




             Q. Would you prescribe these types of medications for an
             inmate if they didn’t need it?

             A. That would be unprofessional, sir.

             Q. In the present system, do inmates sometimes request a
             psychiatric medication even though they might not suffer
             from a mental illness?

             A. Sometimes that happens, yes.

             Q. Would you prescribe a medication for an inmate simply
             because they asked for it?

             A. I hope not. I don’t.

             Q. Would there have to be a legitimate medical reason for
             prescribing a patient a psychiatric medication?

             A. That’s the way it should be.

      Based on the foregoing, we agree with the trial court that Dr. Hamra intended

to offer expert opinion testimony. He testified in no uncertain terms that defendant

had a psychiatric condition for which he, Dr. Hamra, prescribed medication. He then

clarified that his decision to prescribe medication was based not merely on his review

of defendant’s medical history but on his own evaluation of defendant. Finally, he

confirmed that he would only have prescribed medication for “a legitimate medical

reason,” dismissing the notion that he would write a prescription simply because

defendant asked him to do so.




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                                  Opinion of the Court



       As the Supreme Court concluded in Davis, it is immaterial that Dr. Hamra’s

testimony was not elicited through the typical question: “ ‘Doctor, do you have an

opinion?’ ” Davis, 368 N.C. at 802, 785 S.E.2d at 317. His testimony was tantamount

to a diagnosis, which requires the application of specialized knowledge to his

observations of defendant, and which ventures beyond simply “reporting what he saw

or experienced through his senses.”     Id. at 798, 785 S.E.2d at 315.     And while

defendant argued at trial that the testimony was offered not as proof of diminished

capacity but to show he was truthful with police about his mental faculties, the

relevance of the latter still rests upon Dr. Hamra’s psychiatric evaluation.

       Assuming arguendo that Dr. Hamra was not testifying as an expert, the trial

court nevertheless acted within its discretion by excluding his testimony under Rule

403.   “The admissibility of evidence is governed by a threshold inquiry into its

relevance.” State v. Griffin, 136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000)

(citation omitted). Evidence is relevant if it has “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 (2015). The trial court is in the best position to evaluate relevance. Dunn v.

Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004). While its rulings on

relevance are not entirely discretionary, such rulings are afforded “great deference

on appeal.” Id.



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                                   STATE V. BROYHILL

                                    Opinion of the Court



         Even if relevant, evidence may nevertheless “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 (2015).

Whether relevant evidence satisfies the Rule 403 balancing test is a discretionary

ruling reviewed on appeal for abuse of discretion. State v. Beckelheimer, 366 N.C.

127, 130, 726 S.E.2d 156, 159 (2012). An abuse of discretion occurs “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) (citation omitted).

         Dr. Hamra first met with defendant fifteen months after defendant’s arrest.

He reviewed a summary of defendant’s medical records from Raleigh’s Central

Prison, but it is not clear whether Dr. Hamra had access to records of defendant’s

treatment before his arrest. Although his diagnosis and treatment may have some

probative value, bearing on defendant’s state of mind and credibility, Dr. Hamra’s

testimony does not speak directly to defendant’s condition at the time of Jamie Hahn’s

death.

         To the extent that it was relevant, there was a substantial risk that the

testimony would unfairly prejudice the State, mislead the jury, and result in

confusion of the issues. As the trial court aptly explained in its order:



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                                    Opinion of the Court



              [T]he naked testimony of Dr. Hamra that medications were
              required and helpful to the Defendant in July 2014,
              without being subjected to the strictures of Rule 702, would
              have the substantial likelihood of confusing the issues of
              this case, misleading the jury, and would invite the jury to
              speculate the nature of these medication[s], the nature of
              the conditions these medications are used to treat, the
              reliability of the diagnosis, the duration of the condition(s),
              and the effect of these conditions on the Defendant’s state
              of mind and credibility at any time relevant to the alleged
              criminal conduct.


Defendant offered Dr. Hamra’s testimony without evidence of his credentials, the

medical reports he reviewed, the results of any examinations he performed, or the

underlying basis for his opinions. To admit the testimony without the required prior

disclosure would have deprived the State of effective cross-examination and hindered

the trial court’s ability to fulfill its gatekeeping obligations under Rule 702. Both the

court and the State would have been left to accept Dr. Hamra’s evaluation at face

value.

         Because Dr. Hamra’s proffered testimony constituted expert opinion

testimony, which defendant failed to disclose pursuant to the reciprocal discovery

order, the trial court did not err in excluding the testimony at trial. Alternatively,

even if Dr. Hamra was testifying as a fact witness, the trial court did not abuse its

discretion in excluding his testimony under Rule 403. The probative value of the

testimony was substantially outweighed by the danger of unfair prejudice, confusion

of the issues, and misleading the jury.


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B. Voir Dire of Prospective Jurors

      Defendant next argues that the trial court erred during jury selection by

unduly restricting defendant’s inquiry into whether prospective jurors could fairly

evaluate credibility if faced with evidence that a person had lied in the past.

      The primary goal of jury selection “is to empanel an impartial and unbiased

jury.” State v. Garcia, 358 N.C. 382, 407, 597 S.E.2d 724, 743 (2004) (citations

omitted).   A defendant is entitled to a jury composed of members “free from a

preconceived determination to vote contrary to [the defendant’s] contention

concerning [his] guilt of the offense for which he is being tried.” State v. Williams,

286 N.C. 422, 427–28, 212 S.E.2d 113, 117 (1975) (citing Witherspoon v. Illinois, 391

U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)). As an appropriate means to that

end, “counsel may question prospective jurors concerning their fitness or competency

to serve as jurors to determine whether there is a basis to challenge for cause or

whether to exercise a peremptory challenge.” State v. Fullwood, 343 N.C. 725, 733,

472 S.E.2d 883, 886–87 (1996) (citing N.C. Gen. Stat. § 15A-1214(c) (1988)), cert.

denied, 520 U.S. 1122, 117 S. Ct. 1260, 137 L. Ed. 2d 339 (1997).

      Counsel may not, however, “ask questions that use hypothetical evidence or

scenarios to attempt to ‘stake-out’ prospective jurors and cause them to pledge

themselves to a particular position in advance of the actual presentation of the

evidence.” State v. Fletcher, 348 N.C. 292, 308, 500 S.E.2d 668, 677 (1998) (citations



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omitted); see also State v. Vinson, 287 N.C. 326, 336, 215 S.E.2d 60, 68 (1975)

(“Counsel may not pose hypothetical questions designed to elicit in advance what the

juror’s decision will be under a certain state of the evidence or upon a given state of

facts.”), sentence vacated on other grounds, 428 U.S. 902, 96 S. Ct. 3204, 49 L. Ed. 2d

1206 (1976). These “stakeout” questions are improper because they cause a juror “to

pledge himself to a decision in advance of the evidence to be presented.” State v.

Jones, 339 N.C. 114, 134, 451 S.E.2d 826, 835 (1994) (citing Vinson, 287 N.C. at 336,

215 S.E.2d at 68); see also State v. Simpson, 341 N.C. 316, 336, 462 S.E.2d 191, 202

(1995) (“[T]he parties should not be able to elicit in advance what the jurors’ decision

will be under a certain set of facts. This type of ‘staking out’ is improper.” (citations

omitted)). It is also improper for counsel to ask “[q]uestions that seek to indoctrinate

prospective jurors regarding potential issues before the evidence has been presented

and jurors have been instructed on the law.” State v. Richmond, 347 N.C. 412, 425,

495 S.E.2d 677, 683–84 (1998) (citing State v. Parks, 324 N.C. 420, 423, 378 S.E.2d

785, 787 (1989)).

      While the law affords counsel “wide latitude” in the voir dire of prospective

jurors, “the form and extent of the inquiry rests within the sound discretion of the

court.” State v. Johnson, 317 N.C. 343, 382, 346 S.E.2d 596, 618 (1986) (citations

omitted). “[T]o show reversible error in the trial court’s regulation of jury selection,

a defendant must show that the court abused its discretion and that he was



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                                   Opinion of the Court



prejudiced thereby.” State v. Lee, 335 N.C. 244, 268, 439 S.E.2d 547, 559 (citations

omitted), cert. denied, 513 U.S. 891, 115 S. Ct. 239, 130 L. Ed. 2d 162, reh’g denied,

513 U.S. 1035, 115 S. Ct. 624, 130 L. Ed. 2d 532 (1994). A defendant’s “right to an

adequate voir dire to identify unqualified jurors does not give rise to a constitutional

violation unless the trial court’s exercise of discretion in preventing a defendant from

pursuing a relevant line of questioning renders the trial fundamentally unfair.”

Fullwood, 343 N.C. at 732–33, 472 S.E.2d at 887 (citing Morgan v. Illinois, 504 U.S.

719, 730 n.5, 112 S. Ct. 2222, 2230 n.5, 119 L. Ed. 2d 492, 503 n.5 (1992); Mu’Min v.

Virginia, 500 U.S. 415, 425–26, 111 S. Ct. 1899, 1905–06, 114 L. Ed. 2d 493, 506

(1991)).

      In this case, the trial court sustained several objections by the State to

defendant’s line of questioning concerning credibility:

             [DEFENSE COUNSEL]: . . . . People who lie, does that
             necessarily mean that they lie about everything?

             [PROSECUTOR]: Well, objection.

             THE COURT: Sustained.

             [DEFENSE COUNSEL]: If you hear testimony . . . about a
             person lying, does that diminish all their credibility on
             everything?

             [PROSECUTOR]: Objection.

             THE COURT: Sustained.

             [DEFENSE COUNSEL]: Wish to be heard.


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             THE COURT: It’s a stakeout question so it’s sustained.

(Emphasis added.) The trial court later explained: “[M]any of the questions are

stakeout questions, a number of which have been objected to and a number of which

have not been objected to. Those are impermissible in voir dire.” In particular, the

court expressed concern over defendant’s questions which “described a set of facts

and then [ ] asked the jurors to indicate how they would view that set of facts.”

      Before resuming voir dire, the court requested that defendant use the pattern

jury instructions to guide his line of questioning. The pattern jury instruction on the

credibility of a witness provides:

             You are the sole judges of the believability of (a)
             witness(es).

             You must decide for yourselves whether to believe the
             testimony of any witness. You may believe all, any part, or
             none of a witness’s testimony.

             In deciding whether to believe a witness you should use the
             same tests of truthfulness that you use in your everyday
             lives. Among other things, these tests may include: the
             opportunity of the witness to see, hear, know, or remember
             the facts or occurrences about which the witness testified;
             the manner and appearance of the witness; any interest,
             bias, prejudice or partiality the witness may have; the
             apparent understanding and fairness of the witness;
             whether the testimony is reasonable; and whether the
             testimony is consistent with other believable evidence in
             the case.

N.C.P.I.—Crim. 101.15 (2011) (emphasis added).



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                                    Opinion of the Court



      When compared to the pattern jury instructions, defendant’s rejected line of

questioning did not “amount[ ] to a proper inquiry as to whether the jury could follow

the law or ‘whether the juror would be able to follow the trial court’s instructions.’ ”

State v. Hill, 331 N.C. 387, 404, 417 S.E.2d 765, 772 (1992) (quoting State v. Phillips,

300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980)). Under the pattern instructions, a

juror may choose to “believe all, any part, or none of a witness’s testimony.”

N.C.P.I.—Crim. 101.15. Defendant, however, was concerned solely with whether a

juror was likely to believe “none of a witness’s testimony.” He sought to discover what

a prospective juror’s decision would be under a set of circumstances—in particular,

knowledge that defendant had embezzled money and lied about his health. In other

words, defendant attempted to stakeout prospective jurors based on their likelihood

to discredit evidence favorable to the defense upon learning that defendant had lied

in the past.

      The trial court also sustained objections to another, similar line of questioning

by defendant:

               [DEFENSE COUNSEL]: Have you ever known people to lie
               to get attention?

               [PROSECUTOR]: Objection.

               THE COURT: Sustained.

               [DEFENSE COUNSEL]: Can you consider the possibility
               that people would lie to get attention, not necessarily people
               you know?


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              [PROSECUTOR]: Objection.

              THE COURT: Sustained.

              [DEFENSE COUNSEL]: Is lying to get attention one of the
              things that you would consider as a juror in evaluating
              evidence?

              PROSPECTIVE JUROR NO. 6: Yes.

              [DEFENSE COUNSEL]: How about you . . . ?

              PROSPECTIVE JUROR NO. 5: Yes.

              [DEFENSE COUNSEL]: In evaluating that lie, would you
              evaluate it not only for whether it is for that or whether
              it’s—whether the lie is logical, whether it makes sense.

              [PROSECUTOR]: Objection.

              [DEFENSE COUNSEL]: Or it’s something someone would
              expect to be believed?

              THE COURT: Sustained.

(Emphasis added.)

      The trial court explained, and we agree, that the foregoing questions “tend[ed]

to indoctrinate the jury to a particular point of view, which is also not permissible in

voir dire.”   Defendant was aware of the State’s intention to offer evidence that

defendant had lied about his health on several occasions. His line of questioning

indicates an attempt to plant a seed in the minds of prospective jurors—that is, any

lie defendant may have told was told to get attention. In their objected form, the



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                                     Opinion of the Court



questions posed a distinct risk that jurors would be inclined to view the evidence

bearing on credibility through the lens provided by defendant at voir dire.

       In any event, defendant was still “allowed to ask other questions to achieve the

same inquiry sought by . . . the questions to which the court sustained the State’s

objection[s].” State v. Larry, 345 N.C. 497, 510, 481 S.E.2d 907, 914 (1997) (citing

State v. Bishop, 343 N.C. 518, 534–35, 472 S.E.2d 842, 850 (1996), cert. denied, 519

U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723 (1997)). Defendant resumed his line of

questioning in a manner consistent with the pattern jury instructions. And as the

State points out, several prospective jurors demonstrated a nuanced understanding

of how they should evaluate credibility.

       Based on the foregoing, we conclude that the trial court did not abuse its

discretion by restricting defendant’s voir dire examination of prospective jurors. The

court properly sustained objections to defendant’s improper stakeout questions and

questions tending to indoctrinate the jurors. In addition, the court did not close the

door on defendant’s inquiry into whether the prospective jurors could fairly assess

credibility. Rather, defendant was permitted to ask similar questions in line with the

pattern jury instructions, which were an adequate proxy to gauge a prospective

juror’s ability to fairly assess credibility at trial.

C. Exclusion of Custodial Interview Statements




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                                   Opinion of the Court



      Finally, defendant argues that the trial court erred in excluding statements

from his custodial interviews on 23 and 25 April 2013, while admitting statements

from his third custodial interview on 26 April 2013. In its ruling, defendant contends,

the court improperly placed a burden upon defendant to show how the third

statement was “out of context,” and how the two prior statements were “explanatory

or relevant.”   Although he acknowledges there was no substance to his second

statement, as he refused to answer questions during the interview, defendant

maintains that his two prior statements should have been admitted under Rule 106

because they would have enhanced the jury’s understanding of the third.

      Pursuant to Rule 106 of the North Carolina Rules of Evidence, when a party

introduces “a writing or recorded statement or part thereof . . . , an adverse party may

require him at that time to introduce any other part or any other writing or recorded

statement which ought in fairness to be considered contemporaneously with it.” N.C.

Gen. Stat. § 8C-1, Rule 106 (2015).       Rule 106 “is an expression of the rule of

completeness.” Id. cmt. (quoting Fed. R. Evid. 106 advisory committee’s note). It

“codifies the standard common law rule that when a writing or recorded statement or

a part thereof is introduced by any party, an adverse party can obtain admission of

the entire statement or anything so closely related that in fairness it too should be

admitted.” State v. Thompson, 332 N.C. 204, 219–20, 420 S.E.2d 395, 403 (1992).

The purpose of the rule “is merely to ensure that a misleading impression created by



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                                     Opinion of the Court



taking matters out of context is corrected on the spot,” due to “the inadequacy of

repair work when delayed to a point later in the trial.” Id. at 220, 420 S.E.2d at 403–

04 (citations and internal quotation marks omitted); see also N.C. Gen. Stat. § 8C-1,

Rule 106 cmt. (explaining the two considerations upon which Rule 106 is based).

       As Thompson instructs, defendant had to demonstrate that the third

statement was “somehow out of context” when it was introduced into evidence, and

that the two prior statements were “either explanatory of or relevant to” the third.

Thompson, 332 N.C. at 220, 420 S.E.2d at 404; see, e.g., State v. Castrejon, 179 N.C.

App. 685, 692–93, 635 S.E.2d 520, 524–25 (2006) (holding that the trial court did not

err by excluding the defendant’s exculpatory statements while admitting testimony

that he gave a false name to police, where the defendant failed to show that the

testimony “was taken out of context” or the exculpatory statements were “explanatory

of or relevant to” the testimony).

       We review the trial court’s ruling pursuant to Rule 106 for abuse of discretion.

Thompson, 332 N.C. at 220, 420 S.E.2d at 403 (citation omitted); see also State v.

Fowler, 353 N.C. 599, 620, 548 S.E.2d 684, 699 (2001) (“[W]hether evidence should be

excluded . . . under the common law rule of completeness codified in Rule 106 is within

the trial court’s discretion.” (citations omitted)).

       Contrary to defendant’s assertion, the trial court correctly applied Rule 106 in

its decision to exclude the first two statements at trial. After reviewing all three



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                                   Opinion of the Court



recorded statements and comparing the contents thereof, the court concluded that

defendant made no statement during the first or second interview “that under Rule

106 ought, in fairness, to be considered contemporaneously with the statements of

April 26.”   The court found “no instance where the statements in the April 26

interview require further explanation by any excerpts from the April 23 or the April

25 interview,” and “no instance where the statements in the [April 26] interview were

rendered out of context or misleading in the absence of excerpts from the April 23 or

April 25 interview.” Defendant harps on the “temporal connection and interrelated

nature” of the statements but fails to explain precisely how the first two statements

would “enhance the jury’s understanding” of the third. And upon our review of the

interview transcripts, we conclude defendant has failed to show that the court abused

its discretion in excluding defendant’s first two statements at trial.

                                   III. Conclusion

      Defendant received a fair trial, free from error.      The trial court properly

concluded that Dr. Hamra’s proffered testimony constituted expert opinion testimony

which defendant failed to disclose pursuant to the reciprocal discovery order. Even

if Dr. Hamra was testifying as a lay witness, the court acted within the bounds of its

discretion by excluding his testimony under Rule 403 in that the probative value was

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

and misleading the jury. The court exercised the same, appropriate level of discretion



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                                   Opinion of the Court



at jury selection by sustaining the State’s objections to questions designed to stakeout

and indoctrinate prospective jurors, and by restricting defendant’s voir dire to a

proper inquiry in line with the pattern instructions on witness credibility. Finally,

we conclude that the trial court did not abuse its discretion by excluding defendant’s

two prior interview statements from evidence at trial. Our review of the two prior

interview transcripts reveals no statement which, in fairness, should have been

considered contemporaneously with the third.

      NO ERROR.

      Judges TYSON and BERGER concur.




                                          - 30 -
