State v. Long

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2014
• Docket: 13-922
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-922 NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 07 CRS 238137-38, 238140 ANTHONY DARRELL LONG

Appeal by defendant from judgments entered 20 February 2013

by Judge C. Thomas Edwards in Mecklenburg County Superior Court.

Heard in the Court of Appeals 22 January 2014.

Roy Cooper, Attorney General, by Gary R. Govert, Assistant Solicitor General, for the State.

Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant-appellant.

STEELMAN, Judge.

Where defendant raised a diminished capacity defense, the

trial court did not err in allowing an examining psychiatrist,

presented as part of the State’s rebuttal evidence, to testify

as to defendant’s statements upon which her opinion was based.

This testimony did not implicate defendant’s Fifth Amendment

rights concerning self-incrimination. The trial court did not -2- err in refusing to charge the jury on the lesser offense of

voluntary manslaughter.

I. Factual and Procedural Background

Anthony Darrell Long (defendant) and Sonia Long (wife) were

married in 2000. As of 16 August 2007, however, defendant and

wife had separated, and wife was living with her boyfriend,

Roderick Phillips (Phillips).

On 16 August 2007, wife, with Phillips and his son Daniel,

drove to defendant’s home in Charlotte to pick up some

paperwork. Wife entered the home while Phillips remained in the

car. After waiting about forty-five minutes, Phillips

approached the door; defendant answered, and informed Phillips

that wife would be out shortly. Phillips returned to his car,

and shortly thereafter defendant emerged from the house, urging

Phillips to rush inside, informing him that wife needed his

help. Phillips, with Daniel, followed defendant into the home.

As Phillips entered the master bedroom, he felt defendant strike

him in the back with something; he turned and saw defendant come

at him and Daniel with a knife. Phillips fled with Daniel. He

did not see wife inside the home.

Police arrived at the home, and discovered wife, almost

completely nude, with a black leather belt tightened around her -3- neck. She was pronounced dead. Forensic examination showed

recent sexual contact.

Defendant was charged with the first-degree murder of wife,

attempted first-degree murder of Phillips, assault with a deadly

weapon with intent to kill as to Phillips, and second-degree

sexual offense as to wife.1

Prior to trial, defendant gave notice of his intent to

raise a defense of diminished capacity. The trial court ordered

that defendant submit to a psychological examination by Dr.

Nicole Wolfe. Defendant presented two expert witnesses who

testified on the issue of diminished capacity, Drs. Moire

Artigues and Dan Chartier. Dr. Wolfe testified as to her report

during the State’s rebuttal presentation.

The jury found defendant guilty of first-degree murder

based upon premeditation and deliberation, and felony murder

based upon the sex offense; the jury also found defendant guilty

on all other charges. The trial court sentenced defendant to

life imprisonment without parole for first-degree murder,

followed by a consecutive term of 100-129 months for second-

degree sexual offense, followed by a consecutive term of 151-191

1 Defendant was also charged with second-degree rape. This charge was dismissed by the State. -4- months for attempted murder. The trial court arrested judgment

on the assault conviction.

Defendant appeals.

II. Admission of Statements Made During Examination

In his first argument, defendant contends that the trial

court erred in admitting statements made by him during a

psychological examination into evidence. We disagree.

A. Standard of Review

“[T]he trial judge is afforded wide latitude of discretion

when making a determination about the admissibility of expert

testimony.” State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370,

376 (1984). “The trial court’s decision regarding what expert

testimony to admit will be reversed only for an abuse of

discretion.” State v. Alderson, 173 N.C. App. 344, 350, 618

S.E.2d 844, 848 (2005).

B. Analysis

raise a defense of diminished capacity. The trial court ordered

defendant to submit to a psychological examination by Dr. Nicole

Wolfe. Prior to Dr. Wolfe’s testimony at trial, but subsequent

to the testimony of defendant’s experts, defendant raised the

following objection: -5- I would certainly object to any statements made by Mr. Long in this case from Dr. Wolfe's interviews that were conducted during January when I was actually there.

. . .

Certainly we don't object to the state asking what questions were asked. We would just object to quotations on what Mr. Long said in response to those questions by Dr. Wolfe on those different interviews that happened this January.

The trial court held that “the statements may be received

for the limited purposes of establishing the basis for Dr.

Wolfe's opinion as to the defendant's medical status and for no

other purpose.” The trial court further held that “the

objections to Dr. Wolfe's report in their entirety, then, are

overruled.”

Dr. Wolfe testified that defendant informed her that he had

not been hearing voices or seeing hallucinations on 16 August

2007. She then testified that defendant informed her that he

was “feeling frustrated, confused” that day, that he “had

started drinking again that week,” and that “he hadn't been

exercising, playing with his kids, and that he was having

occasional violent sporadic thoughts of things such as dogs

biting, dragons fighting, thoughts of sometimes when his mom

used to beat him, and even thoughts of various plane crashes or -6- train crashes.” Dr. Wolfe then testified that defendant

informed her that, on 16 August 2007, “he had knocked [wife] to

the ground and she did not appear to be resisting, and that he

took her clothes off, had sex with her both vaginally and

anally, and that he estimated that the sexual act lasted

somewhere between five and ten minutes.” Defendant repeatedly

objected to this testimony, and the trial court consistently

overruled the objections.

On appeal, defendant contends that this testimony violated

his privilege against self-incrimination pursuant to the Fifth

Amendment of the United States Constitution. However, we have

previously held that:

When a defendant attempts to establish a diminished capacity defense and introduces expert testimony regarding his mental status, the State may then introduce expert testimony derived from prior court-ordered psychiatric examinations in order to rebut that testimony without implicating the fifth amendment of the U.S. Constitution or Article I, Section 23 of the North Carolina Constitution.

State v. Clark, 128 N.C. App. 87, 94, 493 S.E.2d 770, 774

(1997). In Clark, we cited to our Supreme Court’s decision in

State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), vacated on

other grounds, 497 U.S. 1021, 111 L.Ed.2d 777 (1990), in which

[O]ur Supreme Court specifically addressed -7- the constitutional propriety of multiple psychiatric examinations when used by the State for the purpose of rebutting a defendant's assertion of the insanity defense. There, the Court held that “a fair opportunity to rebut may include more than one examination of defendant.”

Clark, 128 N.C. App. at 94, 493 S.E.2d at 774 (quoting

Huff, 325 N.C. at 47, 381 S.E.2d at 661). Our holding in Clark

is explicit. Where a defendant raises a defense of diminished

capacity, and expert testimony regarding his mental state is

introduced, no Fifth Amendment privilege is implicated. In the

instant case, Dr. Wolfe’s testimony was introduced to rebut the

testimony of defendant’s experts. The trial court explicitly

limited the jury’s consideration of Dr. Wolfe’s testimony to

“the purpose of showing intent and motive, as well as for the

purpose of establishing the basis for the formulation of mental-

health diagnosis.” The jury was not to consider defendant’s

statements during Dr. Wolfe’s examination for the purpose of

determining guilt or innocence.

We hold that the trial court did not abuse its discretion

in admitting Dr. Wolfe’s rebuttal testimony concerning

statements by defendant, made pursuant to her examination of

defendant, which formed the basis of her opinion of defendant’s

mental state. -8- This argument is without merit.

III. Refusal of Trial Court to Charge on Voluntary Manslaughter

In his second argument, defendant contends that the trial

court erred in declining to instruct the jury upon the lesser

included offense of voluntary manslaughter. We disagree.

A. Standard of Review.

“An instruction on a lesser-included offense must be given

only if the evidence would permit the jury rationally to find

defendant guilty of the lesser offense and to acquit him of the

greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767,

771 (2002).

During the jury charge conference, defendant requested that

the trial court instruct the jury on the lesser included offense

of involuntary manslaughter. Defendant cited, as evidence

supporting this charge, Dr. Wolfe’s testimony regarding what

defendant had told her about “the poking in the chest and the

words you'll never see your children again or something to that

effect.” The trial court declined to give the instruction,

holding that those statements – as per defendant’s earlier -9- motion – were not to be considered as evidence of guilt or

innocence.

A “killing committed in the heat of passion suddenly

aroused by adequate provocation . . . is voluntary

manslaughter.” State v. Huggins, 338 N.C. 494, 497, 450 S.E.2d

479, 481 (1994) (citations and quotations omitted). However,

“[m]ere words, however abusive or insulting[,] are not

sufficient provocation to negate malice and reduce the homicide

to manslaughter. Rather, this level of provocation must

ordinarily amount to an assault or threatened assault by the

victim against the perpetrator.” Id. at 498, 450 S.E.2d at 482

(citations omitted).

In the instant case, defendant cites, as evidence of

provocation, statements that wife poked defendant, and taunted

him that she would keep his children away. We recognize that

the trial court issued a limiting instruction that the

statements constituting this evidence would be admitted solely

to establish the basis for Dr. Wolfe’s report, and not for the

purpose of determining guilt or innocence. Even assuming

arguendo that this limiting instruction had not issued, however,

there was no evidence of adequate provocation sufficient to

support an instruction on voluntary manslaughter. We hold that -10- the trial court did not err in declining to instruct the jury on

the lesser included offense of voluntary manslaughter.

This argument is without merit.

NO ERROR.

Judges STEPHENS and DAVIS concur.

Report per Rule 30(e).