An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1309


Filed: 19 July 2005


v .                         Edgecombe County
                            No. 02 CRS 53138

    Appeal by defendant from judgment entered 4 May 2004 by Judge Jerry R. Tillett in the Superior Court in Edgecombe County. Heard in the Court of Appeals 18 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State.

    Joseph E. Zeszotarski, Jr., for defendant-appellant.

    HUDSON, Judge.

    On 6 January 2003, a grand jury indicted defendant Eddie Lee Pollard for first-degree murder. Defendant pled not guilty, and at the 3 May 2004 session of the superior court in Edgecombe County, a jury convicted him of second-degree murder. The court sentenced defendant to 220-273 months imprisonment. Defendant appeals, and as discussed below, we see no error.
    The evidence tended to show that on the evening of 12 September 2002, defendant and a group of other people, including the victim, James Wesley Roberson, gathered in a barn behind the home of defendant's brother, William Pollard. Shirley Best, who lived with William Pollard, testified that she saw defendant and the victim fighting on the floor, with the victim on top ofdefendant shaking him. William Pollard broke up the fight, and then began walking the victim and defendant out of the barn. As they reached a bathroom door, the victim elbowed defendant and pushed him down on the bathroom floor. Ms. Best testified she then heard shots but could not see who was shooting. After the first shot, the victim continued into the bathroom. Ms. Best heard three or four more shots, and the victim walked out the door and fell down. Defendant then left the scene. William Pollard testified that defendant had been drinking prior to the shooting and that defendant had accused the victim of stealing from him. Dr. David Eckert, the pathologist who performed the autopsy on the victim, testified as an expert witness, describing injuries to the victim caused by four gunshots. Defendant presented no evidence after the court refused to admit testimony from Dave Cloutier, who the defense proffered as an expert in the use of force.
    Defendant first argues that the court erred in restricting defendant's cross-examination of Dr. Eckert in violation of his constitutional rights. We disagree.
    Courts have wide discretion to determine whether to admit expert testimony. State v. Mackey, 352 N.C. 650, 657, 535 S.E.2d 555, 558-59 (2000). We reverse a court's discretionary ruling on expert testimony only for an abuse of discretion. Id. Abuse of discretion is shown only when the court's decision “is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998) (internal citationomitted). Here, defendant sought to question Dr. Eckert about whether the victim's wounds were consistent with his body being in a particular position at the time he was shot. After an extensive voir dire of Dr. Eckert, the court concluded that the testimony defendant sought was a matter of common sense, not a subject for expert opinion. Dr. Eckert himself agreed that “the jurors could use the same common sense to come to the same conclusions.” Matters of common sense are best left to the jury. State v. Zuniga, 320 N.C. 233, 251, 357 S.E.2d 828, 910 cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). We see no abuse of discretion by the trial court.
    Defendant next argues that the court abused its discretion by excluding testimony from Dave Cloutier as irrelevant and exceeding the scope of expert testimony. We again conclude the court did not abuse its discretion.
    Courts have wide discretion in deciding whether to admit or exclude expert testimony, including determining whether to exclude expert testimony because its probative value is outweighed by the danger that it would confuse the issues before the court or mislead the jury. Mackey, 352 N.C. at 657, 535 S.E.2d at 558-59. As discussed above, to show an abuse of discretion, a defendant must demonstrate that a court's decision was “manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.” McDonald, 130 N.C. App. at 267, 502 S.E.2d at 413.    Defendant asserts that Cloutier's testimony would have concerned the proportionality of the force defendant used in response to the threat he perceived from the victim, and that this evidence was directly relevant to his claim of self-defense. However, although defendant requested an instruction on self- defense before trial began, he withdrew that request at the time of the charge conference. Based on the transcript, it appears the trial court excluded Cloutier's testimony because defendant had failed to present evidence supporting self-defense. The court left open the possibility of reconsidering this ruling as the trial continued, but defendant chose not to present evidence. A defendant is not entitled to introduce expert testimony to bolster a defense which is not supported by the evidence presented at trial. State v. Nicholson, 355 N.C. 1, 31, 558 S.E.2d 109, 131, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002). Here, defendant did not offer any evidence to support a case of self- defense, but suggests that he would have done so had Cloutier been allowed to testify as an expert. “Not every denial of a defendant's motion in limine results in a chilling of defendant's right to testify.” State v. Lamb, 321 N.C. 633, 648, 365 S.E.2d 600, 608 (1988). A defendant's right to testify is chilled only where “it is abundantly clear from the record . . . that defendant intended to testify unless [defendant's] motion in limine was denied.” Id. Defendant does not argue in his brief that the court's exclusion of Cloutier's testimony impermissibly chilled his right to testify. Thus, defendant has failed to demonstrate anabuse of discretion by the trial court and we overrule this assignment of error.
    Defendant also argues that the court erred in not dismissing the first- and second-degree murder charges. As explained below, we disagree.
    The court instructed the jury on first-degree murder, second- degree murder, and voluntary manslaughter; the jury convicted defendant of second-degree murder. Since the jury acquitted defendant of first-degree murder, defendant's argument regarding first-degree murder is moot. In addition, while defendant assigned error to the court's denial of his motion to dismiss the second- degree murder charge for insufficiency of the evidence, the transcript reveals that defense counsel never moved for dismissal of that charge at trial. Rather, defense counsel moved specifically for dismissal of the first-degree murder charge alone, at the close of the State's evidence and again at the close of all evidence. As the State points out in its brief, from the transcript defense counsel “appears to have acquiesced” in the charge of second-degree murder. Having failed to challenge the submission of the charge of second-degree murder at trial, defendant has failed to preserve this issue for our review. N.C. R. App. 10(b)(3). However, our review of the record reveals sufficient evidence of each and every element of second-degree murder. This argument has no merit.
    No error.
    Judges HUNTER and GEER concur.    Report per Rule 30(e).

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