State v. McKoy

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-60
No. COA20-805
Filed 1 February 2022
Durham County, No. 16 CRS 60307
STATE OF NORTH CAROLINA
v.
DAVID MCKOY
Appeal by defendant from judgment entered 22 March 2019 by Judge John M.
Dunlow in Durham County Superior Court. Heard in the Court of Appeals 3
November 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General M.
Lynne Weaver, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant David McKoy appeals from a judgment entered upon a jury’s verdict
finding him guilty of voluntary manslaughter. On appeal, Defendant challenges the
trial court’s exclusion of evidence found on the cell phone of the victim, Augustus
Brandon. After careful review, we conclude that Defendant received a fair trial, free
from prejudicial error.
Background
¶2 The testimony offered at Defendant’s trial revealed that Defendant and
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
Augustus Brandon had an acrimonious relationship. They had known each other
since they were in sixth grade, and they had many mutual acquaintances. However,
Defendant “tried to avoid” Mr. Brandon because Defendant “knew [Mr. Brandon and
his friends] to rob people” and “to gang bang and to tote guns[.]” After one of Mr.
Brandon’s friends “robbed [Defendant’s friend] at gunpoint for [a] fake chain,”
Defendant purchased a semi-automatic rifle for the purposes of self-defense.
Defendant kept this firearm in the back seat of his car because his mother would not
allow him to keep it in the house.
¶3 Defendant testified that on the morning of 9 December 2016, he was waiting
to turn left onto Hamlin Road when he saw Mr. Brandon drive past him. According
to Defendant, as Mr. Brandon drove by, he “turn[ed] his head . . . like he had spotted
[Defendant].”
¶4 Defendant turned onto Hamlin Road behind Mr. Brandon, who pulled off the
road and then merged back onto it so that he was following Defendant. Defendant
tried unsuccessfully to lose Mr. Brandon by turning onto Old Oxford Road. Mr.
Brandon then passed Defendant, maneuvered his vehicle in front of Defendant’s, and
abruptly came to a complete stop in the roadway. When Mr. Brandon exited his car
and started approaching Defendant’s car, Defendant put his car in reverse and
accidentally backed into a side ditch, where his vehicle got stuck. Mr. Brandon then
turned his car around, drove nearer to Defendant’s car, got back out of the car, and
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
began approaching Defendant.
¶5 Defendant explained that at the time he “was terrified” because he believed
that Mr. Brandon was going to shoot him; he stated, “I just panicked. I just panicked.”
Although he did not see Mr. Brandon brandish a gun, Defendant “was in fear for [his]
life[,]” so he fired his semi-automatic rifle. Defendant believed that Mr. Brandon had
returned fire, so he continued shooting. Defendant fired his weapon three times,
hitting Mr. Brandon once in the middle of the back and once in the back of the head.
The head wound was fatal.
¶6 By the time law enforcement officers arrived at the scene, Mr. Brandon was
dead. He was unarmed.
¶7 That day, law enforcement officers arrested Defendant for the murder of Mr.
Brandon. On 17 January 2017, a Durham County grand jury returned an indictment
formally charging Defendant with the murder of Augustus Brandon. From the outset,
Defendant consistently maintained that he acted in self-defense against Mr.
Brandon.
¶8 This matter came on for trial in Durham County Superior Court on 11 March
2019. Three eyewitnesses to the shooting testified on behalf of the State. Two of the
witnesses reported that they had heard approximately three gunshots on 9 December
2016, while the third stated that he heard six to seven shots. One witness testified
that Mr. Brandon was running away when Defendant shot him, with the force of the
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
shots “launch[ing]” his body into the roadside ditch.
¶9 Mr. Brandon’s mother, Angela Clark, also testified for the State. She said that
a few days before the shooting, Mr. Brandon admitted to her that he had previously
been in possession of a gun, but he had recently been robbed and the gun was taken
from him. “He just kept asking” Mrs. Clark if she could help him get another, telling
her, “I need it for protection, because they’re going to kill me.”
¶ 10 During the jury charge, the trial court delivered instructions on first-degree
murder, second-degree murder, and voluntary manslaughter. With regard to
voluntary manslaughter, the court instructed the jury, in relevant part:
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date the defendant
intentionally wounded the victim with a deadly weapon
and thereby proximately caused the victim’s death and
that the defendant used excessive force, it would be your
duty to find the defendant guilty of voluntary
manslaughter, even if the [S]tate has failed to prove that
the defendant did not act in self-defense.
¶ 11 On 22 March 2019, the jury returned its verdict finding Defendant guilty of
voluntary manslaughter. The trial court entered judgment upon the jury’s verdict
and sentenced Defendant to a term of 64 to 89 months in the custody of the North
Carolina Division of Adult Correction. Defendant gave notice of appeal in open court.
Discussion
I. Exclusion of Evidence
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
¶ 12 During trial, the State filed a motion in limine to suppress Defendant’s
anticipated introduction of (1) text messages on Mr. Brandon’s cell phone in which he
arranged to commit violent acts and discussed owning and using guns, and (2)
photographs on Mr. Brandon’s cell phone of him and others holding guns. The State
asserted that such evidence would be more prejudicial than probative because specific
acts of conduct are impermissible to prove a victim’s propensity for violence, and
because such evidence could suggest that Mr. Brandon “had a violent character.” The
State also argued that the evidence was inadmissible because Defendant did not
know about the texts or photographs at the time of the shooting. Defense counsel
argued that although Defendant did not learn of the texts and photographs until
discovery, Mr. Brandon’s “parents . . . [w]ere going to talk about their son,” and
therefore the cell-phone evidence was necessary “to paint the whole picture.” The
defense further argued that the State “opened the door” to challenges to Mr.
Brandon’s character because his parents testified that he “was always a happy guy.”
¶ 13 In addition, defense counsel conducted a voir dire examination of Darius Clark,
Mr. Brandon’s father, during which Mr. Clark denied knowing anything about his
son owning or using guns. To impeach Mr. Clark’s testimony, Defendant’s counsel
sought to question him about a recorded interaction between the Clarks and the lead
detective, Christin Reimann, in which they reviewed together the contents of Mr.
Brandon’s cell phone.
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
¶ 14 The trial court granted the State’s motion in limine, explaining, “This is [the
S]tate’s case in chief, . . . so any question relative to the contents of that phone and
text messages that may or may not have been contained on that phone is not allowed.”
The trial court permitted Defendant “to ask questions relating to whether [Mr. Clark]
knew that the victim had a gun” because he “had previously testified that [Mr.
Brandon] did not have a gun, [and] there were no guns allowed in his house”; the
court also allowed defense counsel to question Mr. Clark about the fact of his
encounter with Detective Reimann, during which she showed Mr. Clark and his wife
the contents of Mr. Brandon’s cell phone. However, the trial court instructed
Defendant that he could not ask Mr. Clark “specific questions about th[e] contents”
of the cell phone for the purposes of impeachment. The court later sustained the
State’s objections when Defendant asked Mr. Clark and Detective Reimann about the
contents of Mr. Brandon’s cell phone.
II. Standard of Review
¶ 15 On appeal, Defendant argues that the trial court erred in excluding the specific
content discovered on Mr. Brandon’s cell phone. Specifically, Defendant contends that
the issue is whether the State “opened the door” to admission of the cell-phone
evidence to refute the portrayal of Mr. Brandon in his parents’ testimony, and to
impeach Mr. Clark’s testimony that he did not previously know that his son had once
possessed a gun or been robbed. Defendant asserts that this is a question of law,
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
reviewable de novo on appeal.1
1 Defendant contends that “[w]hether a party opened the door to the admission of
particular evidence by the opposing party is a question of law,” which is reviewable de novo
on appeal. For support, Defendant cites State v. Jefferies, 333 N.C. 501, 511, 428 S.E.2d 150,
155 (1993); however, such reliance on Jefferies is misplaced. First, although the standard of
review in Jefferies was not explicitly stated, nowhere in the opinion did our Supreme Court
suggest de novo review. See id. Indeed, among the cases cited in Jefferies is State v. Brown,
in which our Supreme Court affirmed this Court’s application of the abuse of discretion
standard when determining whether the trial court erred in concluding that the defendant
had “opened the door” to evidence of his prior bad acts. 310 N.C. 563, 571–73, 313 S.E.2d 585,
590–91 (1984).
Defendant’s reliance on Jefferies is further unwarranted because the facts here are
not analogous to those in Jefferies. In Jefferies, the defendant sought to question a detective
on cross-examination specifically about the detective’s testimony for the State that charges
had also been filed against the defendant’s alleged co-conspirator. 333 N.C. at 511, 428 S.E.2d
at 155. The State offered the detective’s testimony to support its theory that the men had
acted in concert; accordingly, on cross-examination, the defendant hoped to rebut this
evidence by eliciting testimony that the charges against his co-conspirator had been
dismissed. Id. However, the trial court did not allow the defendant to question the detective
regarding the dismissed charges, and it excluded from evidence documents showing that the
charges had been dismissed. Id. On appeal, our Supreme Court stated the well-established
rule that “[w]hen a party introduces evidence favorable to its case, the other party has the
right to introduce evidence to explain or rebut such evidence, although the latter evidence
would be inadmissible had it been offered initially.” Id. The Court explained that “[a]ssuming
the evidence which the defendant attempted to introduce would have been inadmissible if
offered originally, it became admissible when the State’s witness testified on this subject. It
was error to exclude this evidence.” Id. The Court nonetheless concluded that the error was
harmless, reasoning that there was no “reasonable possibility” that a different result would
have been reached at trial even if the error had not occurred. Id. at 511–12, 428 S.E.2d at155–56.
Here, Defendant attempted to introduce the evidence on Mr. Brandon’s cell phone to
rebut Mr. Clark’s claimed ignorance about his son’s use of guns and his statement that Mr.
Brandon “was always a happy guy.” Unlike in Jefferies—where the defendant’s proffered
evidence regarding the dismissed charges would have provided relevant context to help
“explain or rebut” the State’s potentially unfavorable evidence concerning a co-conspirator,
id. at 511, 428 S.E.2d at 155—here, Mr. Clark’s knowledge of his son’s prior possession of
guns and his characterization of Mr. Brandon’s overall demeanor are not directly related to
Mr. Brandon’s alleged propensity for violence.
Accordingly, Defendant’s contention that Jefferies mandates de novo review of this
issue lacks merit.
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
¶ 16 However, the record indicates otherwise. The State argued that the cell-phone
evidence would impermissibly suggest—through specific acts of which Defendant
only learned after the fact—that Mr. Brandon possessed “a violent character.” Based
on this argument, the trial court decided that Defendant could ask Mr. Clark general
“[q]uestion[s] about whether or not [Detective] Reimann showed him and his wife the
contents of Mr. Brandon’s cell phone, but not specific questions about those
contents[.]” In doing so, the court engaged in the evidentiary balancing test prescribed
by Rule 403 of the North Carolina Rules of Evidence. See N.C. Gen. Stat. § 8C-1, Rule
403 (2021) (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury . . . .”).
¶ 17 Accordingly, the ultimate question on appeal is whether the trial court abused
its discretion by excluding the cell-phone evidence, not whether the State “opened the
door” to evidence of Mr. Brandon’s allegedly violent character.
¶ 18 A motion in limine “can be made in order to prevent the jury from ever hearing
the potentially prejudicial evidence thus obviating the necessity for an instruction
during trial to disregard that evidence if it comes in and is prejudicial.” State v. Tate,
300 N.C. 180, 182, 265 S.E.2d 223, 225 (1980). “The decision of whether to grant [a
motion in limine] rests in the sound discretion of the trial judge.” State v. Hightower,
340 N.C. 735, 746–47, 459 S.E.2d 739, 745 (1995). Additionally, “[w]e review a trial
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
court’s decision to exclude evidence under Rule 403 for abuse of discretion.” State v.
Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008).
¶ 19 “An abuse of discretion results when 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. Triplett, 368 N.C. 172, 178, 775 S.E.2d 805, 809 (2015)
(citation and internal quotation marks omitted). “In our review, we consider not
whether we might disagree with the trial court, but whether the trial court’s actions
are fairly supported by the record.” Id. (citation and internal quotation marks
omitted).
¶ 20 “[E]videntiary error does not necessitate a new trial unless the erroneous
admission was prejudicial. The same rule applies to exclusion of evidence.” State v.
Jacobs, 363 N.C. 815, 825, 689 S.E.2d 859, 865 (2010) (citations and internal
quotation marks omitted). A defendant is prejudiced by evidentiary error “when there
is a reasonable possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which the appeal arises.”
Id. (quoting N.C. Gen. Stat. § 15A-1443(a)). “Defendant bears the burden of showing
prejudice.” Id. at 825, 689 S.E.2d at 866.
III. Analysis
¶ 21 Here, Defendant contends that “[i]t was error for the trial court to bar any
evidence of what [Mr. Brandon] kept on his cell phone to rebut the misleading picture
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
presented to the jury by the State.” Defendant further asserts that he was prejudiced
by the exclusion of this evidence because:
[i]f the jury had been allowed to hear that [Mr.] Brandon
was not a person who only briefly had access to a gun and,
instead, was a person who had possession of guns on
multiple occasions when under no threat of harm, it would
have been reasonable for the jury to conclude that the State
had failed to prove beyond a reasonable doubt that
[Defendant] used more force [than] reasonably necessary
to repel [Mr.] Brandon’s lethal attack on him.
¶ 22 Assuming, arguendo, that the cell-phone evidence was excluded in error, such
error was not sufficiently prejudicial to warrant a new trial. Defendant has not shown
“a reasonable possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which the appeal arises.”
Id. at 825, 689 S.E.2d at 865.
¶ 23 In the instant case, the trial court admitted substantial evidence supporting
Defendant’s theory of self-defense. Defendant testified that Mr. Brandon and his
friends had a reputation for “rob[bing] people,” “gang bang[ing,] and . . . tot[ing]
guns”; that Mr. Brandon had once “randomly showed [Defendant] a video of [Mr.
Brandon] shooting a gun[,]” an experience that made Defendant feel “confused and
uncomfortable”; that Defendant “was terrified” and “in fear for [his] life” at the time
of the shooting; and that he thought he heard more than three gunshots, as one of the
eyewitnesses also testified. Additionally, Mrs. Clark testified that a few days before
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
the shooting, her son had admitted that he had previously had a gun, but it had been
stolen, and he needed assistance obtaining another. A challenge to Mr. Clark’s
credibility with the texts and photographs on Mr. Brandon’s cell phone, therefore,
would not have meaningfully bolstered Defendant’s self-defense claim.
¶ 24 Furthermore, the evidence tended to show that Defendant was honestly in fear
for his life, but that the degree of force he used was unreasonable, as Mr. Brandon
was unarmed and running away from Defendant when he was killed. The trial court’s
instruction on voluntary manslaughter allowed the jury to convict Defendant upon a
finding of imperfect self-defense. As Defendant concedes, the guilty verdict suggests
“that the jury concluded that [Defendant] had a reasonable fear that he was facing
an imminent threat of death or great bodily injury from [Mr.] Brandon at the time of
the shooting, but that the State had proven beyond a reasonable doubt that he used
more force than necessary.”
¶ 25 Moreover, as Defendant acknowledges, he testified at trial that he never saw
Mr. Brandon holding or handling a gun on 9 December 2016; nevertheless, he
contends that, had the trial court not erroneously excluded the evidence discovered
on Mr. Brandon’s cell phone, “there is more than a reasonable possibility that the jury
would have reached a verdict other than guilty of voluntary manslaughter.”
Defendant’s argument is unavailing.
¶ 26 The only additional evidence Defendant proffers in support of his argument on
STATE V. MCKOY
2022-NCCOA-60
Opinion of the Court
appeal is his own testimony that “he heard gunshots in addition to the three he fired
and believed [Mr.] Brandon had fired at him.” However, as noted above, the jury
heard and considered this testimony, as well as that of an eyewitness who similarly
recalled hearing more than the three gunshots reported by two other testifying
eyewitnesses. The jury, as fact-finder in this matter, weighed all of the evidence and,
presented with four possible verdicts, found Defendant guilty of the lowest-level
offense. Even assuming, arguendo, that the relevant evidence was erroneously
excluded, we are not persuaded that the challenged evidentiary ruling affected the
outcome at trial. Accordingly, Defendant has not shown “a reasonable possibility that,
had the error in question not been committed, a different result would have been
reached at the trial out of which the appeal arises.” Id.¶ 27 For these reasons, we conclude that Defendant received a fair trial, free from
prejudicial error.
NO PREJUDICIAL ERROR.
Judge ARROWOOD concurs.
Judge TYSON dissents by separate opinion.
No. COA20-805 – State v. McKoy
TYSON, Judge, dissenting.
¶ 28 David McKoy (“Defendant”) appeals from a judgment entered upon a jury’s
verdict finding him guilty of voluntary manslaughter. Defendant challenges the trial
court’s limitation on his cross-examination of the State’s witnesses and the exclusion
of evidence and images found on the cell phone of the deceased, Augustus Brandon
(“Brandon”). Defendant is entitled to a new trial. I respectfully dissent.
¶ 29 The jury concluded the State had failed to carry its burden to show
premeditation and deliberation, and acquitted Defendant of both first-degree and
second-degree murder. The jury also rejected Defendant acted with malice and
accepted Defendant’s evidence of self-defense to rebut the presumption of malice
arising from his use of deadly force. See State v. Reynolds, 307 N.C. 184, 192, 297
S.E.2d 532, 537 (1982) (“In the instant case the state offered evidence sufficient to
permit a jury to find beyond a reasonable doubt that defendant intentionally used a
deadly weapon, a pistol, to cause the death of the deceased. There is no evidence of
mitigation which might reduce the crime to manslaughter nor is there any evidence
which would justify or excuse the killing. Under these circumstances the state has
proved murder in the second degree because malice and unlawfulness are implied in
law.”).
I. Reasonable Use of Force
¶ 30 The sole issue remaining for the jury was whether Defendant’s use of deadly
force in self-defense was reasonable. The burden of proof rests upon the State and
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
the evidence is reviewed in the light most favorable to Defendant, as it appeared to
him at the time of the incident. See State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532,
537 (1988) (“When determining whether the evidence is sufficient to entitle a
defendant to jury instructions on a defense . . . , courts must consider the evidence in
the light most favorable to [the] defendant.” ) (citations omitted).
A. Opening the Door
¶ 31 Defendant asserts prejudicial error in the exclusion of evidence favorable to
him and argues the State “opened the door” to the admission of the photos and texts
after the detective’s and Brandon’s parents’ testimonies on direct examination.
“‘Opening the door’ is the principle where one party introduces evidence of a
particular fact and the opposing party may introduce evidence to explain or rebut it,
even though the rebuttal evidence would be incompetent or irrelevant, if offered
initially.” State v. Thaggard, 168 N.C. App. 263, 273, 608 S.E.2d 774, 782 (2005)
(citation omitted).
¶ 32 Defendant asserts he is entitled to introduce evidence to explain or rebut
evidence or assertions presented by the State. See State v. Jefferies, 333 N.C. 501,
511, 428 S.E.2d 150, 155 (1993) (“When a party introduces evidence favorable to its
case, the other party has the right to introduce evidence to explain or rebut such
evidence, although the latter evidence would be inadmissible had it been offered
initially.”); see State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) (“Under
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
such circumstances, the law wisely permits evidence not otherwise admissible to be
offered to explain or rebut evidence elicited by the [opposing party]. Where one party
introduces evidence as to a particular fact or transaction, the other party is entitled
to introduce evidence in explanation or rebuttal thereof, even though such latter
evidence would be incompetent or irrelevant had it been offered initially.”) (emphasis
supplied) (citation omitted).
¶ 33 The State opened the door through the detective’s and Brandon’s parents’
testimonies that asserted Brandon’s (1) lack of possession and use of guns; (2) no
involvement in gang activities; (3) reputation for peacefulness; and, (4) being
characterized as “always a happy guy.”
B. Right to Present a Defense
¶ 34 Defendant further argues the trial court’s denial of cross-examination and
inability to introduce evidence is a constitutional violation and impacts his due
process right to present a defense:
The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the jury
so it may decide where the truth lies. Just as an accused
has the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense. This right
is a fundamental element of due process of law.
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1023 (1967) (emphasis
supplied).
¶ 35 When a defendant asserts the defense of self-defense, he is entitled for the trial
court and jury to view the evidence “in the light most favorable to the defendant.”
State v. Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010). In the light most
favorable to Defendant, the evidence tended to show Defendant had been bullied and
threatened by Brandon prior to the shooting. Defendant was followed and cornered
by Brandon on a roadway. Brandon got out of the car and approached Defendant.
Defendant testified he thought he was being threatened and ducked down, while
backing his car away from Brandon and into a ditch. Defendant testified Brandon
had been shooting at him and he had heard gun shots. This evidence was
corroborated by other witnesses.
¶ 36 Defendant testified he was afraid when Brandon went back towards his car.
Brandon pulled his car over to Defendant and Defendant shot at Brandon through
his own car window. Defendant crouched behind his car and fired additional shots.
Defendant himself called 911 and surrendered to police. Defendant has no prior
criminal record.
¶ 37 Defendant attempted to introduce evidence of Brandon’s reputation for
violence, as corroborated by violent and graphic gang and gun images of Brandon that
he had stored on his cell phone. Defendant also sought to cross-examine and use the
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
phone images to rebut Brandon’s parents, Mr. and Mrs. Clark’s, claimed ignorance
about their son’s possession and use of guns, his gang activity, and their assertion of
Brandon’s reputation for peacefulness and that he “was always a happy guy.”
¶ 38 The State objected. On the next day of court, the State filed motion in limine
to prevent use of these texts and images citing State v. Bass, 371 N.C. 535, 819 S.E.2d
322 (2018). After a voir dire hearing, the trial court granted the State’s motion. The
trial court sustained the State’s objections when defense counsel attempted to cross-
examine Brandon’s father about a photo showing Brandon holding firearms, after the
father had denied his son had ever possessed a gun.
¶ 39 Later, Detective Riemann testified for the State and mentioned she had gone
through the contents of Brandon’s phone. Detective Riemann testified she did not
recall all the photos she may have looked at on the phone. Defense counsel attempted
to cross-examine the detective regarding images and the phone’s contents. The trial
court sustained the State’s objection.
¶ 40 While North Carolina’s courts recognize and protect the right to wide-ranging
cross examination, “the defendant’s right to cross-examination is not absolute. The
testimony which defendant sought to elicit must be relevant to some defense or
relevant to impeach the witness.” State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d
853, 854 (citation omitted), rev. denied, 333 N.C. 793, 431 S.E.2d 28 (1993).
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
¶ 41 The State never addresses the issue on appeal of whether it opened the door to
admit this testimony, does not address the constitutional implications of Defendant’s
right to present a defense or his knowledge Brandon was violent and known to carry
a gun. Even though the State relied upon State v. Bass at the trial court for the basis
of its motion in limine, the State does not cite Bass to support its arguments on
appeal.
C. State v. Bass
¶ 42 Our Supreme Court’s holding in Bass does not control the outcome this case.
In Bass, the court found no error where the defendant was denied the opportunity to
offer witnesses testifying to past violent acts of the victim. Bass, 371 N.C. at 545, 819
S.E.2d at 328. Here, Defendant argues the State opened the door regarding the
contents and images stored on Brandon’s phone and by the State’s witnesses
affirmatively asserting Brandon’s good character. Defendant asserts the denial of his
right to cross-examine and present evidence to support the reasonableness of his
actions denied him his due process right to present a defense. Bass does not address
specific acts or corroborating evidence offered to impeach the State’s witnesses’
testimony about a victim’s character for violence.
¶ 43 Here, the jury had already acquitted Defendant on first and second-degree
murder. Defendant’s evidence rebutted the presumption of malice arising from the
use of a deadly weapon. Reynolds, 307 N.C. at 192, 297 S.E.2d at 537.
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
¶ 44 The sole remaining question for the jury was whether the Defendant’s use of
deadly force was reasonable, as reviewed in the light most favorable to Defendant
under the facts as appeared to him at the time. The burden rested upon the State to
show it was not.
¶ 45 Defendant’s apprehension and belief at the time of the incident determines the
degree of force necessary to use for self-defense. See State v. Bush, 307 N.C. 152, 160,
297 S.E.2d 563, 569 (1982). The evidence is certainly relevant and corroborative of
Brandon’s reputation for violence, gang involvement use of guns, and as
impeachment of Brandon’s father’s testimony asserting Brandon’s peaceful
character.
¶ 46 Defendant had testified he was followed and cornered by Brandon, who
abruptly pulled in front of his vehicle and came to a dead stop in the roadway.
Defendant testified he heard gun shots and believed Brandon had been shooting at
him. Brandon got out of the car and approached Defendant, who felt threatened and
backed up his vehicle into a ditch. Brandon pulled his car over to Defendant and got
out. Defendant shot at Brandon from inside his own car window. Defendant testified
he was afraid and believed Brandon went back towards his car to further arm himself.
II. Conclusion
¶ 47 Defendant was convicted of voluntary manslaughter for imperfect self-defense
because the jury found his degree of force was unreasonable. The impeachment
STATE V. MCKOY
2022-NCCOA-60
Tyson, J., dissenting
evidence goes towards Defendant’s state of mind and reasonableness of fear during
the incident. There is a reasonable possibility if this evidence and testimony had not
been excluded, and this error not been committed at trial, a different result may have
been reached by the jury, in light of their acquittals on the murder charges and
rejection of presumed malice. See N.C. Gen. Stat. § 15A-1443(a) (2021).
¶ 48 The trial court’s limitations on cross-examination and exclusion of
corroborating evidence, after the State had opened the door, unlawfully eased the
State’s burdens of proof and to overcome self-defense. Defendant was prejudiced in
his defense and is entitled to a new trial. I respectfully dissent.