State v. Gregory ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-1034
Filed 19 December 2023
Wake County, Nos. 15CRS219491-92, 15CRS219539-40, 15CRS219654-55
STATE OF NORTH CAROLINA
v.
KENDRICK KEYANTI GREGORY, Defendant.
Appeal by defendant from judgments entered 4 August 2021 by Judge Thomas
H. Lock in Wake County Superior Court. Heard in the Court of Appeals 31 October
2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Zachary
K. Dunn, for the State-appellee.
Thomas, Ferguson & Beskind, LLP, by Kellie Dorise Mannette, for defendant-
appellant.
GORE, Judge.
Defendant Kendrick Keyanti Gregory appeals from the trial court’s judgments
entered upon his conviction for first-degree murder, three counts of robbery with a
dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious
injury, attempted first-degree sexual offense, first-degree rape, first-degree
kidnapping, two counts of assault with a deadly weapon with intent to kill, and
possession of a firearm by a felon. Consistent with the jury’s verdicts, the trial court
imposed a sentence of life imprisonment without possibility of parole, and consecutive
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Opinion of the Court
sentences totaling 616-800 months’ imprisonment. The trial court arrested judgment
on one count of robbery with a dangerous weapon and the first-degree kidnapping
conviction. Defendant gave oral notice of appeal in open court. This Court has
jurisdiction to hear this appeal pursuant to N.C.G.S. §§ 15A-1444 and 7A-27(b).
The instant appeal is centered on the trial court’s limitation on defendant’s
cross-examination of Dr. Nicole Wolfe (the State’s expert witness in forensic
psychiatry), and the trial court’s denial of defendant’s request for a special jury
instruction on insanity. We discern no error in the trial court’s judgments.
I.
The facts of defendant’s underlying crimes are mostly undisputed and hold no
relevance to the issues now before us. Nonetheless, considering the severity of
defendant’s crimes, it is appropriate to present a summary for context.
A.
In the evening hours of 30 August 2015, defendant stole two vehicles from
different locations around Raleigh, North Carolina — first a Pontiac Grand Prix from
the Mini City Market, then a BMW 328 from the Royal India restaurant.
Around 9:00 a.m. the next morning, detectives from the Raleigh Police
Department (“RPD”) were called to the Knights Inn motel on reports of a shooting.
Defendant had shot Lenin Peraza after watching Mr. Peraza pull cash out of his
wallet and purchase items at a nearby Exxon station. Video surveillance footage
confirmed defendant was the shooter. The footage showed defendant pulling Mr.
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Opinion of the Court
Peraza into a stairwell, taking money from his pocket, and then leaving in a blue
BMW.
That same day, RPD received a call about a shooting at the Mini City Market.
The 911 call reported that someone in a red shirt, later identified as defendant, had
shot someone, and was running towards the Food Lion located in the same shopping
center. Officer D.P. Patterson responded to the scene and noticed people screaming
in front of a business called “Mr. Pawn.” When Officer Patterson arrived at the
business, he could “see the victim laying down in the doorway.” The victim, later
identified as Thomas Durand, died from his injuries. Defendant had shot Mr. Durand
in the back of the head and stolen his gun.
A few minutes after leaving Mini City Market in the stolen BMW, defendant
drove a short distance away and kidnapped a fifteen-year-old girl, J.D., from outside
of her home. J.D. recognized defendant as she had seen him the previous day “staring
at [her] most of the time” while she was riding bikes in her neighborhood with her
friends. As J.D. walked home, now alone, defendant again approached her, “came up
and put his arms around [J.D.’s] neck and told [her] [that she] would have to come
with him.” Defendant took J.D. to the stolen BMW and drove away. While driving,
defendant showed J.D. the two handguns that he had in the car and told her “[t]hat
he had murdered somebody at the pawnshop.”
After driving for a while, the pair arrived at an apartment complex that was
unknown to J.D. Defendant forced J.D. into the woods behind the apartment
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Opinion of the Court
complex; he vaginally raped J.D., unsuccessfully attempted anal penetration, and
then vaginally raped her again. Defendant was “hyped up” and told her that she
would have his child. The pair then returned to the stolen BMW, and defendant drove
J.D. back to her apartment complex. As defendant dropped J.D. off, he told her that
“if [she] told somebody what happened, he would come back because he knew where
[she] stayed.”
Later that evening, defendant robbed a clerk at the International Food Store.
During this robbery, defendant fired a shot at a clerk who chased him, but no one was
hurt.
On 1 September 2015, defendant was arrested in New York City after police
stopped a stolen car being driven by defendant. Defendant was extradited back to
North Carolina.
B.
Shortly after being arrested, defendant was committed to Central Regional
Hospital for an examination on his capacity to proceed. Defendant was found
incapable to proceed on 6 February 2018 and was involuntarily committed. On 19
February 2020, the State moved to have defendant forcibly medicated, if necessary,
to restore his capacity. On 5 March 2020, the trial court convened a hearing pursuant
to Sell v. United States, 539 U.S. 166, 156 L. Ed. 2d 197 (2003), to determine whether
to restore defendant’s capacity to proceed via forced medication.
At the hearing, and as is relevant here, the State called Dr. Nicole Wolfe to
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Opinion of the Court
testify regarding defendant’s mental illnesses. Dr. Wolfe, a forensic psychiatrist at
Central Regional Hospital, testified that she first examined defendant in late 2017 to
determine whether he was competent to proceed to trial; she determined that he was
not. Dr. Wolfe thereafter examined defendant twice more: once in April 2018 and
again in January 2020. During the April 2018 evaluation, defendant was medicated,
and Dr. Wolfe determined that defendant was able to proceed to trial. However, at
the January 2020 evaluation, defendant was unmedicated, and Dr. Wolfe determined
that he was no longer able to proceed to trial.
Speaking about defendant’s then-current mental state in March of 2020, Dr.
Wolfe stated:
[PROSECUTOR]: And, finally, I want to talk about what’s
medically appropriate for the defendant. You know, aside
from restoring him to capacity, what, in your opinion, is in
his best interests just regarding his health?
[DR. WOLFE]: Treatment of his psychotic condition is
medically appropriate.
[PROSECUTOR]: And why is it appropriate that he
receive antipsychotic medications against his will? Go
through that cost-benefit analysis for us, if you would?
[DR. WOLFE]: Well, he’s not going to spontaneously
improve without treatment. The other thing is that there
are significant risks with lack of treatment, and psychotic
people do unpredictable actions, and sometimes that’s
dangerousness to self or others. So untreated psychosis
can lead to suicide, not uncommonly, and it can also lead to
aggression.
The hearing was continued, and before it concluded, defendant began taking his
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Opinion of the Court
medication voluntarily.
C.
Defendant’s trial began on 6 July 2020. The State presented dozens of
witnesses in its case in chief, and six witnesses in rebuttal. Among the State’s
rebuttal witnesses was Dr. Wolfe, who was admitted at trial as an expert in forensic
psychiatry and psychology.
1.
On direct examination, Dr. Wolfe’s opinion was that in 2017, defendant
exhibited symptoms of psychosis, schizophrenia, and mania, and was not capable of
proceeding to trial. Defendant was then kept at Central Regional Hospital for a
process called “capacity restoration,” where he was given psychiatric treatment to
target symptoms that were interfering with his capacity to proceed. Dr. Wolfe
deemed defendant capable to proceed in April 2018.
Shortly after making that determination, the State asked Dr. Wolfe to “render
an opinion about defendant’s mental state at the time of the offense,” 31 August 2015.
When rendering an insanity determination regarding defendant’s mental state when
he committed his crimes, Dr. Wolfe reviewed “a compilation of understanding the
mental illness, what was present, and looking at anything at the time of the offense.”
Dr. Wolfe interviewed defendant numerous times between 17 and 27 April 2018,
produced a report of her findings (the “2018 Report”), and noted “several things that
[defendant] said . . . that made [her] suspicious of some of his symptom reporting. Dr.
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Opinion of the Court
Wolfe referred defendant to another physician who confirmed her suspicions that
defendant was feigning or malingering some of his symptoms.
Dr. Wolfe “suspected malingered or feigned mental illness” in 2017 when she
first evaluated defendant, “even when he was psychotic just based on his symptom
presentation” and, after consulting his full psychiatric history, learned that “there
were many psychiatrists who suspected that he was malingering or claiming
symptoms for a secondary gain.” Dr. Wolfe questioned defendant’s self-reported
symptoms of hallucinations, and defendant also admitted to Dr. Wolfe that he would
sometimes “go on suicide watch” so he could “get more food,” which Dr. Wolfe testified
is “sort of an admission to malingering.”
Dr. Wolfe also testified about defendant’s incarcerations shortly before 30
August 2015. Defendant was incarcerated on 1 August 2015 at the Wake County
Detention Center but displayed “no odd behavior” and “no self-report. So he didn’t
see mental health because his behavior seemed pretty unremarkable.” The 2018
Report was admitted into evidence without objection from defendant. Dr. Wolfe’s
underlying conclusion in the 2018 Report was that defendant’s “mental illness did
not prevent him from understanding the nature and quality or wrongfulness of his
actions.”
2.
On cross-examination, defendant’s counsel began recounting Dr. Wolfe’s
findings in her 2017, 2018, and 2020 reports. Defense counsel asked about a January
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2020 evaluation of defendant. At that time, Dr. Wolfe determined that defendant was
again incapable of proceeding to trial and recommended a high dose of an
antipsychotic medication to restore his competency. Shortly thereafter, the following
colloquy regarding the 5 May 2020 Sell hearing occurred:
[DEFENSE COUNSEL]: So after you wrote [the January
2020] report, you testified at another hearing in this case;
is that correct?
[DR. WOLFE]: I don’t remember.
[DEFENSE COUNSEL]: Well, this will be a hearing about
whether or not it might be necessary to have forced
medication?
[DR. WOLFE]: Oh, okay. That. Yes.
[DEFENSE COUNSEL]: And there’s a procedure when
somebody –
[PROSECUTOR]: Objection.
THE COURT: Sustained.
Outside the presence of the jury, defense counsel asked whether he was
permitted to go “into anything about the Sell hearing.” The State confirmed that its
objection was based on defendant’s counsel asking about forced medication, and the
court confirmed, “that was the basis for the [c]ourt’s ruling.” However, the trial court
did not bar defendant from asking Dr. Wolfe about her testimony at the Sell hearing,
“as long as [defense counsel does not], in your questions, make reference to forced
medications, I would think that line of questioning would be appropriate.” After
hearing a proffer, the State renewed its objection to defense counsel, “talk[ing] about
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Opinion of the Court
a Sell hearing or any forcible injections.” After hearing from the defense, the trial
court ruled that “the probative value of that line of questioning” regarding forced
medication “is minimal. But to the extent that it is relevant, that upon apply[ing] the
balancing test required by 403, the [c]ourt does find that the probative value of the
line of questions is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.”
After the trial court sustained the State’s objection, defense counsel resumed
asking Dr. Wolfe “about a hearing that occurred in March of 2020” — the Sell hearing.
Defense counsel asked Dr. Wolfe to review a verbatim transcript of her testimony at
the Sell hearing, and asked her multiple questions about her testimony in that
proceeding, including the following:
[DEFENSE COUNSEL]: If you looked at page 144 [of the
Sell hearing transcript], did you testify that you believe
that medication can restore [defendant’s] competency?
[DR. WOLFE]: It sounds like something I would have said.
...
[DEFENSE COUNSEL]: And you also said at the bottom
of page 144, going through 115, “Without medication, I do
not believe that [defendant] would regain capacity without
antipsychotic medication”?
[DR. WOLFE]: That is correct.
[DEFENSE COUNSEL]: And 115, you also said, “Seen him
in both a state where he was capable of proceeding to trial
and where he is not, and it is a pretty drastic difference in
terms of how he communicates, organizes his thoughts, and
interacts with others”?
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Opinion of the Court
[DR. WOLFE]: Yes.
Defense counsel continued questioning Dr. Wolfe about her testimony at the
Sell hearing and an April 2021 report she produced about defendant’s competency to
proceed. Dr. Wolfe also outlined the differences between her diagnosis in 2017 and
her testimony at trial:
Diagnostically, some of the difference that – some of the
things that came into play that are slightly different than
2017 is I didn’t have the full breadth of the family history,
the reports from friends, a lot of these criminal reports, and
all these other treatment records. So the diagnosis of the
psychotic disorder, it does appear that there are psychotic
symptoms that started in 2014 and they appeared to have
full manifested into a very consistent state in 2017. And
the other thing that I didn’t diagnose more than 2017 but
that’s quite relevant is antisocial personality disorder. And
that’s something that is a more longstanding type of
behavior that somebody engages in, in terms of the way
they choose to live their life. And by having all of these
additional records, I was able to see his pattern –
longstanding pattern of manipulative behavior,
callousness, that way preceded the development of any
psychotic symptom.
Dr. Wolfe admitted that she did not write a report which contained the words
“antisocial personality disorder,” and explained that “wouldn’t be necessary because
it doesn’t really change the opinion, which is that he doesn’t have a mental disease or
defect that stops him from being able to understand what he was doing at the time.”
Reviewing her records, Dr. Wolfe confirmed that defendant had not taken anti-
psychotic medication from roughly 8 July 2015 through his arrest in New York after
the crimes in question.
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Opinion of the Court
D.
At the charge conference, the parties agreed that the pattern jury instruction
regarding insanity, N.C.P.I. – Crim. 304.10, should be given. The pattern instruction
includes the following statement regarding release from a mental facility after being
found not guilty by reason of insanity:
A defendant found not guilty by reason of insanity shall
immediately be committed to a State mental facility. After
the defendant has been automatically committed, the
defendant shall be provided a hearing within 50 days. At
this hearing the defendant shall have the burden of proving
by a preponderance of the evidence that the defendant no
longer has a mental illness or is no longer dangerous to
others. If the court is so satisfied, it shall order the
defendant discharged and released. If the court finds that
the defendant has not met the defendant’s burden of proof,
then it shall order the inpatient commitment continue for
a period not to exceed 90 days. This involuntary
commitment will continue, subject to periodic review, until
the court finds that the defendant no longer has a mental
illness or is no longer dangerous to others.
N.C.P.I. – Crim. 304.10. In addition to this standard language, defendant requested
in writing that the trial court add a subsequent paragraph to the pattern jury
instruction, as follows:
No matter how much time has passed since the crime, a
defendant who committed a violent homicide “will be
presumed dangerous to others” and has a “high hurdle” and
“difficult burden” to overcome this presumption. Even
years after the crime, when the court considers a mentally
ill defendant’s dangerousness, the probative value of a
violent homicide far outweighs the fact that the crime
happened years or decades ago. Thus, during a civil
commitment hearing, the judge will always consider a
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Opinion of the Court
defendant’s prior violent crime and the defendant faces a
difficult burden to prove he is not dangerous to others.
The State objected to the addition of the paragraph, while acknowledging some
past cases where prosecutors had, during closing arguments, prejudicially
misrepresented the term of a defendant’s involuntary commitment upon a finding of
not guilty by reason of insanity. The State disclaimed any intention to make such an
argument in this case. After some consideration, the trial court declined to give
defendant’s requested special instruction.
During closing arguments, the State did not make any argument that
defendant could be released within a short period of time. Defendant’s counsel made
arguments, without objection, consistent with the special instruction that the trial
court declined to give. Defense counsel explained to the jury that when someone is
“found not guilty by reason of insanity, they are sent to a secured location at a mental
hospital.” Defense counsel argued that the mental hospital would “never cure
[defendant’s] disease. Never. That’s not a possibility.” Defense counsel further
stated:
[defendant is] going to be [at a mental hospital] for a long,
long time, if not forever. Because they can take into
account not only the fact that he’s been untreated in an
uncurable disease that he will also have, but in deciding
whether he’s a danger, we look at what events that have
happened beforehand. And they will look at the fact what
happened beforehand was that somebody got killed,
somebody was sexually violated, and there were violent
robberies. All of that was going to be taken into
consideration. It’s going to prevent him from getting out.
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The jury returned verdicts finding defendant guilty on all charges.
II.
A.
Defendant argues the trial court abused its discretion in limiting cross-
examination of Dr. Wolfe regarding the Sell hearing, and specifically, her testimony
that defendant needed to be forcibly medicated to regain his capacity to proceed.
Defendant asserts “the inability of the defense to cross-examine Dr. Wolfe on her
position regarding forced medication severely impaired their ability to undermine her
opinion on insanity.” We disagree.
In this case, Dr. Wolfe was the State’s expert witness who rebutted defendant’s
defense of insanity. Dr. Wolfe testified, that in her opinion, defendant was mentally
ill, malingering his symptoms, and was fully able to appreciate his conduct during
the crimes committed. When defense counsel attempted to impeach Dr. Wolfe with
her testimony from the Sell hearing, the State objected, and after a proffer, the trial
court sustained the State’s objection to the line of questioning under Rule 403
grounds.
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. Amend. VI. “The principal purpose of
confrontation is to secure to the defendant the right to test the evidence of the
witnesses against him through cross-examination.” State v. Mason, 315 N.C. 724, 729
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(1986) (citing Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347 (1974)). “However, the
right of cross-examination is not absolute and may be limited in appropriate cases.”
Id. at 730 (citation omitted).
“Generally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15,
20, 88 L. Ed. 2d 15, 19 (1985) (per curiam). “[T]rial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674,
683 (1986).
“In general, we review a trial court’s limitation on cross-examination for abuse
of discretion. If the trial court errs in excluding witness testimony showing possible
bias, thus violating the Confrontation Clause, the error is reviewed to determine
whether it was harmless beyond a reasonable doubt.” State v. Bowman, 372 N.C. 439,
444 (2019) (citations omitted).
As a preliminary matter, defendant does not explain how the fact that a Sell
hearing occurred, or that defendant may have been subject to forced medication, was
probative in any way. See State v. Young, 368 N.C. 188, 212 (2015) (“Evidence has
‘probative value’ if it ‘tends to prove or disprove a point in issue.’”) (quoting Probative
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Evidence, BLACK’S LAW DICTIONARY (8th ed. 2004)). The issue of forced medication
was not before the jury, and defendant concedes he was not forcibly medicated
because he “began taking his medication voluntarily.”
After the trial court sustained the State’s objection, defense counsel resumed
asking Dr. Wolfe “about a hearing that occurred in March of 2020” – the Sell hearing.
Defense counsel asked Dr. Wolfe to review a verbatim transcript of her testimony at
the Sell hearing and asked her multiple questions about her testimony in that
proceeding. Dr. Wolfe explained the differences between her diagnosis in 2017 and
her testimony at trial, noting that her initial diagnosis was made without the benefit
of additional records.
It is true that findings of incapacity to proceed are generally admissible
evidence when a defendant asserts insanity as a defense, and “when such evidence is
admitted, the trial judge should clearly instruct the jury that this evidence is not
conclusive but is merely another circumstance to be considered by the jury in reaching
its decision.” State v. Bundridge, 294 N.C. 45, 51 (1978). However, this is not a case
where the trial court refused to admit such evidence. To the contrary, witness
testimony “placed before the jury a complete history and description of defendant’s
mental condition.” Id. The jury was aware that: (i) defendant was not medicated at
the time of his crimes; (ii) defendant was deemed incompetent to proceed to trial by
Dr. Wolfe at various times; (iii) defendant was prescribed medication by Dr. Wolfe,
and others, to help treat defendant’s mental illnesses; and (iv) Dr. Wolfe previously
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Opinion of the Court
testified that medication was not only medically appropriate, but also necessary for
defendant to maintain competency to proceed to trial. Although the trial court
prohibited defense counsel from mentioning the Sell hearing or forced medication
specifically, defendant was not limited in attacking Dr. Wolfe’s credibility or asking
about the differences between her previous testimony at the hearing and her
subsequent testimony at trial.
Presuming, arguendo, facts that a Sell hearing occurred and that the State
may have sought to forcibly medicate defendant were broadly relevant and had some
probative value on defendant’s plea of not guilty by reason of insanity, the trial court
did not abuse its discretion in its determination that “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury . . . .” N.C.G.S. § 8C-1, Rule 403 (2022). Further, defendant’s
assertion that “the jury was deprived of the information about [Dr. Wolfe’s] bias . . .
at least in part due to her belief that he was a danger to others when he was
unmedicated” lacks any real substantive support in the record.
B.
Next, defendant argues the trial court erred by declining to give his requested
special jury instruction on commitment procedure. We disagree. Defendant properly
preserved this issue for appellate review. See N.C.R. App. P. 10(a)(2). We review
errors “challenging the trial court’s decisions regarding jury instructions . . .” de
novo.” State v. Osorio, 196 N.C. App. 458, 466 (2009).
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Opinion of the Court
At the charge conference, the parties agreed the pattern jury instruction
regarding insanity, N.C.P.I. – Crim. 304.10, should be given, including, upon
defendant’s request, an instruction on commitment procedure. Defendant also
requested an additional instruction paragraph that reads, in part, “a defendant who
committed a violent homicide ‘will be presumed dangerous to others’ and has a ‘high
hurdle’ and ‘difficult burden’ to overcome this presumption.” Defendant’s trial
counsel admitted this was “a unique instruction,” and there were “no cases where [the
requested paragraph has] been given.” Defendant requested the instruction be given
because, inter alia, “it’s consistent with the law” and not including it could be
“misleading to the jury.”
“[U]pon request, a defendant who interposes a defense of insanity to a criminal
charge is entitled to an instruction by the trial judge setting out in substance the
commitment procedures [now provided for in N.C.G.S §§ 15A-1321 and -1322],
applicable to acquittal by reason of mental illness.” State v. Hammonds, 290 N.C. 1,
15 (1976) (emphasis added). “This Court has recognized that the preferred method
of jury instruction is the use of the approved guidelines of the North Carolina Pattern
Jury Instructions.” Caudill v. Smith, 117 N.C. App. 64, 70 (1994), disc. rev. denied,
339 N.C. 610 (1995). Generally, a requested jury instruction should be given when
“(1) the requested instruction was a correct statement of the law and (2) was
supported by the evidence, and that (3) the instruction given, considered in its
entirety, failed to encompass the substance of the law requested and (4) such failure
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likely misled the jury.” Liborio v. King, 150 N.C. App. 531, 534 (citation omitted),
disc. rev. denied, 356 N.C. 304 (2002).
Here, the pattern jury instruction on commitment procedures, N.C.P.I. – Crim.
304.10, sufficiently encompasses the substance of the law. See State v. Allen, 322 N.C.
176, 198–99 (1988) (“The trial court gave the pattern jury instruction in N.C.P.I. –
Crim. 304.10 which informed the jury of the commitment hearing procedures in
N.C.G.S. §§ 15A-1321 and -1322, pursuant to article 5 of chapter 122C. This
instruction adequately charged the jury regarding procedures upon acquittal on the
ground of insanity.”).
Defendant offers no compelling argument or authority to support his assertion
that the pattern jury instruction, as written, was “incomplete” or “misleading” “in the
context of this case.” Our Supreme Court adopted the rule requiring an instruction
on commitment procedures precisely because the “fear for the safety of the community
could motivate a jury to insure that a defendant will be incarcerated for his own safety
and the safety of the community at large.” Dalton, 369 N.C. 311, 321 (Jackson, J.,
concurring) (cleaned up). Here, defendant interposed a defense of insanity to criminal
charges based upon, in his own words, “a series of violent and dangerous acts.”
Defendant’s case is neither so exceptional nor extraordinary such that the pattern
jury instruction on commitment procedures fails to adequately encompass the law or
risks misleading the jury. The uniquely abhorrent nature of defendant’s criminal
conduct does not entitle him to unique instruction on matters beyond the jury’s
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consideration. Accordingly, we discern no error in the trial court’s decision to deny
defendant’s request for an additional jury instruction.
III.
For the foregoing reasons, we discern no error in this case. The trial court did
not abuse its discretion in limiting cross-examination of Dr. Wolfe, and defendant’s
confrontation rights were not violated. Further, the trial court did not err in declining
to give defendant’s requested special instruction to the jury.
NO ERROR.
Judge STADING concurs.
Judge HAMPSON dissents by separate opinion.
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No. COA22-1034 – State v. Gregory
HAMPSON, Judge, dissenting.
In my view, it was an abuse of discretion constituting error to exclude cross-
examination of Dr. Wolfe on the purpose of her testimony at the Sell hearing where
Defendant’s defense in this case was premised solely on a plea of insanity. In
particular, the trial court erred by not permitting cross-examination on Dr. Wolfe’s
opinion offered at the 2020 Sell hearing concerning the medical appropriateness of
Defendant receiving “antipsychotic medications against his will[.]”
Our Supreme Court in Bundridge acknowledged:
it is well established in this jurisdiction that in criminal
cases, every circumstance that is calculated to shed any
light upon the supposed crime is admissible into evidence.
State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968).
Likewise, our courts have allowed wide latitude in
admitting evidence having a tendency to throw light upon
the mental condition of a defendant who has entered a plea
of not guilty by reason of insanity. For example, we allow
opinion evidence by lay witnesses and lay testimony
reciting irrational acts prior or subsequent to the alleged
offense.
State v. Bundridge, 294 N.C. 45, 50-51, 239 S.E.2d 811, 816 (1978).
Moreover, that Court has also recognized:
North Carolina Rules of Evidence permit broad cross-
examination of expert witnesses. N.C.G.S. § 8C–1, Rule
611(b) (1992). The State is permitted to question an expert
to obtain further details with regard to his testimony on
direct examination, to impeach the witness or attack his
credibility, or to elicit new and different evidence relevant
to the case as a whole. “ ‘The largest possible scope should
be given,’ and ‘almost any question’ may be put ‘to test the
value of his testimony.’ ” 1 Henry Brandis, Jr., Brandis on
STATE V. GREGORY
HAMPSON, J., dissenting
North Carolina Evidence § 42 (3d ed.1988) (footnotes
omitted) (citations omitted).
State v. Bacon, 337 N.C. 66, 88, 446 S.E.2d 542, 553 (1994). No rationale could apply
to otherwise limit a Defendant’s cross-examination of the State’s experts.
Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are
tested. Subject always to the broad discretion of a trial
judge to preclude repetitive and unduly harassing
interrogation, the cross-examiner is not only permitted to
delve into the witness’ story to test the witness’ perceptions
and memory, but the cross-examiner has traditionally been
allowed to impeach, i.e., discredit, the witness.
Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974).
A more particular attack on the witness’ credibility is
effected by means of cross-examination directed toward
revealing possible biases, prejudices, or ulterior motives of
the witness as they may relate directly to issues or
personalities in the case at hand. The partiality of a
witness is subject to exploration at trial, and is ‘always
relevant as discrediting the witness and affecting the
weight of his testimony.’ 3A J. Wigmore, Evidence s 940,
p. 775 (Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected
right of cross-examination. Greene v. McElroy, 360 U.S.
474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959).
Id. at 317, 94 S. Ct. at 1110, 39 L. Ed. 2d 347.
Here, Dr. Wolfe’s testimony indicated she “had suspected malingered or
feigned mental illness in 2017 even when [Defendant] was psychotic just based on his
symptom presentation, which was quite atypical.” At Dr. Wolfe’s 2018 evaluation,
Dr. Wolfe testified Defendant “clearly exceeded the threshold for feigned psychotic
2
STATE V. GREGORY
HAMPSON, J., dissenting
symptoms.” As the majority points out, the gist of Dr. Wolfe’s trial testimony was
that she suspected Defendant was malingering or feigning symptoms of mental
illness as early as 2017 and eventually, upon a subsequent review of records,
determined that, in her opinion, was in fact the case, even though she agreed
Defendant suffered from mental illness. Nevertheless, in 2020, Dr. Wolfe not only
testified that Defendant required medication to restore his competency but also
testified as to why forced medication of Defendant to treat his mental illness was
medically appropriate to prevent Defendant from being a danger to himself and
others. The jury, however, was not permitted to hear the motivation—to compel
forced medication of Defendant—for Dr. Wolfe’s 2020 testimony.
The motivation for Dr. Wolfe’s testimony in 2020 was quite clearly probative
both of Dr. Wolfe’s credibility and Defendant’s mental condition. Indeed, Defendant’s
case hinged on the fact that while Defendant had sporadically received mental health
treatment since at least 2014, Defendant was unmedicated at the time of the offenses
in 2015 and, thus, incapable of knowing the nature and quality of his actions or the
wrongfulness of his acts as result of his mental illness. Dr. Wolfe’s testimony that
not only was Defendant responsive to medication but that she advocated for
Defendant to be forcibly medicated for his own health and protection and to restore
his competency was certainly relevant and probative material for cross-examination.
Moreover, there is no rationale for excluding this piece of evidence under Rule
403(b). First, the jury was permitted to hear practically everything else from and
3
STATE V. GREGORY
HAMPSON, J., dissenting
about the 2020 Sell hearing, except perhaps the most important part: the context in
which it was held. Surely if the jury could hear evidence of the contents of that
hearing as bearing on Defendant’s mental health, the context of that hearing was just
as probative to throw light on Defendant’s mental condition. See Bundridge, 294 N.C.
at 50-51, 239 S.E.2d at 816. Like with the other evidence of the hearing, any potential
unfair prejudice could be cured by an appropriate instruction—just like the trial court
gave in this case. See id.In fact, neither the trial court nor the State at trial identified any unfair
prejudice that would arise out of allowing the jury to hear the context of Dr. Wolfe’s
2020 testimony. On appeal, the State unhelpfully contends allowing the jury to hear
that the State wished to forcibly medicate Defendant might bias the jury against the
State. It is true, Defendant’s evidence might have hurt the State’s case—but that is
not ipso facto unfair. It is what usually happens in a trial. The State further argues
that Defendant began taking his medication voluntarily after the Sell hearing. That,
however, does not change the fact the State—supported by its expert witness—
advocated for forced medication of Defendant to restore his competency prior to a trial
at which the State argued—and the very same expert testified—Defendant was
malingering and feigning his mental illness. As yet, nobody has articulated any
actual unfair prejudice or potential confusion to the jury justifying exclusion under
Rule 403. To exclude this piece of evidence—this important context—was an abuse
of discretion and constituted error.
4
STATE V. GREGORY
HAMPSON, J., dissenting
In Bundridge, our Court held the exclusion of a trial court’s order deeming the
defendant incapable of proceeding was harmless error. However, critical to that
analysis was the fact multiple experts and lay witnesses “placed before the jury a
complete history and description of defendant’s mental condition.” Bundridge, 294
N.C. at 51, 239 S.E.2d at 816. Here, because of the exclusion of evidence the State
and Dr. Wolfe sought an order compelling Defendant’s forced medication improperly
limited the history and description of Defendant’s mental condition before the jury.
In the end, this was a close case, and Defendant had the right to place before
the jury testimony through cross-examination of the State’s expert having a tendency
to throw light upon Defendant’s mental condition. On the issue of Defendant’s
insanity, the case was primarily a battle between the Defense and State’s respective
experts. It is evident that substantial evidence in the Record supports Defendant’s
insanity defense and that this was the critical issue the jury struggled with—as
illustrated by the jury’s notes and initial indication it was hung. There is a reasonable
possibility that, had the jury heard the context for Dr. Wolfe’s 2020 Sell hearing
testimony, it would have reached a different result. N.C. Gen. Stat. § 15A-1443(a)
(2021); See State v. Duncan, 244 N.C. 374, 379, 93 S.E.2d 421, 424 (1956); see also
Bundridge, 294 N.C. at 59, 239 S.E.2d at 821 (Exum, J. dissenting) (“Who knows,
however, how much evidence it takes to persuade a jury? They might well have been
persuaded by the evidence offered plus the evidence which defendant should have
been allowed to offer but which the trial judge improperly kept out.”).
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STATE V. GREGORY
HAMPSON, J., dissenting
Thus, the trial court exclusion of testimony regarding the purpose of the Sell
hearing was prejudicial error. Therefore, Defendant is entitled to a new trial.
6