An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA01-1558


Filed: 21 January 2003


         v.                        Wilson County
                                No. 99 CRS 54353

    Appeal by defendant from judgment entered 25 April 2001 by Judge Jerry R. Tillett in Wilson County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General A. Danielle Marquis, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    HUDSON, Judge.

    Defendant appeals from a judgment sentencing him to life imprisonment without parole following his conviction by a jury of first-degree murder.
    The State presented evidence tending to show that defendant fatally wounded the victim by firing seven bullets into the victim's head and body on 30 May 1999. Defendant presented an insanity defense. Other pertinent evidence will be discussed in addressing defendant's two assignments of error.
    First, defendant contends the court erred by denying his motion to dismiss the charge for lack of jurisdiction. He argues the short form indictment utilized in this case failed to chargethe crime of first-degree murder because it failed to allege the element of premeditation or deliberation. Defendant concedes that the North Carolina Supreme Court has answered this issue adversely to his position. State v. Braxton, 352 N.C. 158, 174-75, 531 S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). He argues that the Supreme Court's decision should be “reconsidered.” This Court, however, is not at liberty to revisit an issue that has clearly been decided by our Supreme Court. State v. Stephenson, 144 N.C. App. 465, 478, 551 S.E.2d 858, 867, appeal dismissed and disc. review denied, 354 N.C. 227, 554 S.E.2d 829 (2001). This assignment of error is overruled.
    Second, defendant contends the court erred by sustaining the State's objection to testimony of Dr. Peter Barboriak, a forensic psychiatrist at Dorothea Dix Hospital, as to “the consensus” of a hospital panel regarding defendant's mental condition. Defendant contends that this testimony should have been admitted under Rule 703 to show the basis of Dr. Barboriak's diagnosis. He argues that the exclusion of the evidence was prejudicial because it could have added credibility to the diagnosis.
    We first note that defendant has not made an offer of proof for the record as to what Dr. Barboriak's testimony would have been regarding the consensus. “In order to preserve the exclusion of evidence for appellate review, 'the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.'” State v. Barton, 335 N.C. 741, 749, 441S.E.2d 306, 310 (1994)(quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)).     Assuming, arguendo, that it may reasonably be inferred from the record that the witness would have testified that the consensus was that defendant genuinely suffered from a mental condition, we are not persuaded that the evidence was improperly excluded. Rule 703 provides:
        The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

N.C. Gen. Stat. § 8C-1. Absent an offer of proof, we must speculate as to what the excluded testimony would have been. State v. King, 326 N.C. 662, 674, 392 S.E.2d 609, 617 (1990). We decline to do so.
    Defendant did lay a foundation establishing that he relied upon the consensus of opinion as facts or data that assisted him in forming opinions or inferences. In this case, we cannot tell from the record what the doctor's testimony would have been.
    Finally, even if the evidence had been improperly excluded, the error is grounds for a new trial only if it is reasonably possible that a different outcome would have occurred had the evidence not been excluded. N.C. Gen. Stat. § 15A-1443(a) (1999); State v. Davis, 340 N.C. 1, 26, 455 S.E.2d 627, 640, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Dr. Barboriak did testify that in his opinion, defendant genuinely suffered from a mentaldisorder. He based this testimony on evaluations conducted by himself and a psychologist and information obtained by a mental health case specialist. Another psychiatrist, Dr. Jonathan Weiner, expressed an opinion that defendant was insane at the time of the murder. A third mental health expert, Dr. Tricia Hahn, a psychologist, testified that defendant was not malingering or faking a mental condition. Several witnesses familiar with defendant testified regarding defendant's strange behavior before and after the homicide. Plenary evidence was therefore presented to the jury to establish that defendant suffered from a mental condition. In light of this, the defendant has not persuaded us that the excluded evidence would have had a likely impact on the verdict. Thus, we conclude that the exclusion was not prejudicial. State v. Clark, 319 N.C. 215, 219, 353 S.E.2d 205, 207 (1987) (holding that trial court did not err in excluding evidence that was “cumulative”).
    No error.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

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