An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-811

NORTH CAROLINA COURT OF APPEALS

Filed: 06 May 2003

STATE OF NORTH CAROLINA

v .                         Cumberland County
                            No. 00 CRS 62146
ROGER LEE DEAL

    Appeal by defendant from judgment entered 18 January 2002 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 15 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Nora Henry Hargrove for defendant-appellant.

    STEELMAN, Judge.

    On 7 November 2000, defendant was indicted for first degree murder. A jury found defendant guilty of second degree murder, and the trial court sentenced him to a minimum term of 189 months and a maximum term of 236 months.
    The State's evidence at trial tended to show that on 5 July 2000, Stephen Craig Patterson, Jr. (“Patterson”) had gone to defendant's house after learning that defendant had been hitting Patterson's mother, to whom defendant was married. Defendant and Patterson engaged in a physical confrontation, after which Patterson left defendant's house and began walking back toward his own home. Defendant then retrieved a shotgun from his house and shot Patterson in the back, killing him. Defendant then fled thescene of the shooting.
    In the early morning hours of 6 July 2000, defendant was arrested for driving while impaired (“DWI”). While in custody for DWI, defendant admitted that he had been drinking and had taken prescription painkillers on the evening of 5 July 2000. He also admitted to Lieutenant John Smith of the Cumberland County Sheriff's Department during a telephone conversation that he had shot Patterson.
    At trial Dr. Nathan Strahl (“Dr. Strahl”) was tendered and accepted as an expert in psychiatry and pharmacology. Dr. Strahl testified on voir dire that in his opinion, the combination of the physical altercation between defendant and Patterson and the consumption of alcohol and prescription painkillers caused defendant to act under the influence of a suddenly aroused violent passion when he shot Patterson. The trial court sustained the State's objection to this opinion testimony and refused to admit it into evidence.
    On direct examination before the jury, Dr. Strahl testified that defendant was “markedly impaired” in his ability to plan to kill the victim and to form the specific intent to kill. He also stated his opinion that defendant's state of mind at the time of the shooting was “so impaired as to overcome reason” and to impair his ability “to form a deliberate purpose and control his actions.” This opinion testimony was admitted without objection by the State.
    Defendant contends the trial court erred in excluding the expert testimony as to defendant's state of mind at the time of theshooting, specifically whether he acted under the influence of a suddenly aroused violent passion.
    Expert opinion testimony is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue....” N.C. Gen. Stat. § 8C-1, Rule 702(a) (2001). An expert's opinion is not inadmissible solely because it embraces an ultimate issue in the case. N.C. Gen. Stat. § 8C-1, Rule 704 (2001). However, the trial court may refuse “to admit expert testimony embracing a legal conclusion that the expert is not qualified to make.” State v. Weeks, 322 N.C. 152, 164, 367 S.E.2d 895, 903 (1988) (citation omitted). In ruling on the admissibility of opinion testimony on a particular issue, the trial court must determine “'whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.'” Id. at 165, 367 S.E.2d at 903 (quoting State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978)).
    In Weeks, the trial court admitted opinion testimony from three of the defendant's expert witnesses on psychology and psychiatry that he had been suffering from a mental disorder at the time of the shooting which distorted his perception of reality and affected his ability to distinguish between right and wrong. Weeks, 322 N.C. at 165, 367 S.E.2d at 903. The defendant also attempted to have one of his experts testify to his opinion that at the time of the shooting, the “defendant did not act in a coolstate of mind, that he was acting under a suddenly aroused violent passion....” Id. at 166, 367 S.E.2d at 903. Sustaining the State's objection, the trial court refused to admit this testimony into evidence. Id. at 166, 367 S.E.2d at 904. The Weeks Court found that
        [w]hat defendant sought to accomplish with this testimony was to have the experts tell the jury that certain legal standards had not been met. We are not convinced that either the psychologist or the psychiatrists were in any better position than the jury to make those determinations. Having the experts testify as requested by defendant would tend to confuse, rather than help, the jury in understanding the evidence and determining the facts in issue.

Id. at 166-67, 367 S.E.2d at 904 (citation omitted). Thus, the court held the trial court did not err in refusing to admit the opinion testimony regarding the defendant's acting under a suddenly aroused violent passion. Id. at 167, 367 S.E.2d at 904.
     In the present case, the trial court admitted opinion testimony from Dr. Strahl, as an expert in psychiatry, regarding defendant's ability to reason and to form the specific intent to kill but excluded his opinion that defendant had acted under a suddenly aroused violent passion. As our Supreme Court held in Weeks, Dr. Strahl, as a psychiatrist, was not in any better position than the jury to determine whether defendant was acting under a suddenly aroused violent passion at the time he shot Patterson. We hold the trial court properly excluded Dr. Strahl's opinion testimony regarding defendant's being under a suddenly aroused violent passion.    In his next assignment of error, defendant contends the trial court erred in not imposing a sentence in the mitigated range. He specifically argues the trial court failed to consider the five mitigating factors he presented to the trial court during sentencing.
    N.C. Gen. Stat. § 15A-1340.16(a) (2001) provides in part that the trial court “shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.” The trial court is required to make findings of aggravating or mitigating factors only when it exercises its discretion to sentence outside the presumptive range. N.C. Gen. Stat. § 15A- 1340.16(c).
    We hold the trial court did not abuse its discretion in sentencing defendant from the presumptive range. This assignment of error is without merit.
    NO ERROR.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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