State v. Gregory

               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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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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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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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, 

, 

 (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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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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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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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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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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             [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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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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             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, 

, 729

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(1986) (citing Davis v. Alaska, 

, 

 (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, 

, 

 (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, 

, 

 (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, 

 (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, 

 (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, 

 (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.” 

 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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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, 

 (2009).

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      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, 

 (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, 

 (1994), disc. rev. denied,

 (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, 

 (citation omitted),

disc. rev. denied, 

 (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, 

, 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, 

 (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.




                                          - 19 -
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, 

, 

 (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, 

, 

 (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, 

, 

 (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, 

, 

, 

 (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, 

, 

, 

 (1959).

Id. at 317, 

, 

.

      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, 

, 

. 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 

      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, 

, 

. 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, 

, 

 (1956); see also

Bundridge, 

, 

 (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.”).

                                           5
                                 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