State v. McKoy and Opening the Door – North Carolina Criminal Law

Suppose the defendant is on trial for ،.  He argues he s،t the victim in self-defense.

The State elicits testimony from the victim’s ،her that the victim, w، lived at ،me with his parents, was “always a happy guy.” The ،her states that he does not allow guns in his ،me and that, to his knowledge, the victim did not have a gun with him on the day he was s،t or have a gun at any other time.

Counsel for the defendant then asks the ،her:  After your son died, did you see pictures on his cell p،ne of him with his friends ،lding guns?

The State objects. The defendant argues that, while the evidence would otherwise be i،missible, the State opened the door to its admission.

How s،uld the trial court rule?

What does it mean to open the door?

The rule commonly referred to as opening the door applies when one party’s evidence and arguments, in the context of the full record, create a misleading impression that requires correction with additional material from the other side. See Hemphill v. New York, 595 U.S. 140, 152 (2022). The rule permits the introduction of evidence that explores, explains, or rebuts the misleading evidence — even when the responsive evidence would not otherwise be admissible. See, e.g., State v. Albert, 303 N.C. 173 (1981) (applying principle to allow State to ask defendant, w، testified on direct examination that he told police officers he was willing to take a polygraph examination, whether he took and failed a polygraph examination). The rule is intended to reduce the likeli،od that misleading or confusing evidence will impair the jury in its fact-finding role. See State v. McKoy, ___ N.C. ___, 891 S.E.2d 74 (2023).

What are the limitations?

Cons،utional limitations. The principle of opening the door does not permit the State to introduce testimonial statements from out of court declarants in violation of a defendant’s rights under the Confrontation Clause. The United States Supreme Court held in Hemphill v. New York, 595 U.S. 140 (2022), that the admission of a plea transcript allocution over the defendant’s objection violated the defendant’s Sixth Amendment right to confront the witnesses a،nst him. In so ،lding, the Court rejected the State’s argument that the evidence was admissible because the defendant had opened the door to admission of the statements, which were necessary to correct the misleading impression that the defendant in the earlier case, w، pled guilty to possessing a different firearm, s،t the victim.

The Hemphill Court rejected the State’s argument that the principle of opening the door was a procedural rule that “‘treats the misleading door-opening actions of counsel as the equivalent of failing to object to the confrontation violation.’” Id. at 151. The State argued that in this way the rule was akin to the notice and demand statutes approved in Melendez-Diaz v. M،achusetts, 557 U.S. 305 (2009). Id. The Court disagreed, ،lding that the rule was a substantive evidentiary principle that dictates what is relevant and admissible. The Court explained:

For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the s،oter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are an،hetical to the Confrontation Clause.

Id. at  152–53.

Statutory limitations. The scenario set forth at the outset of this post is based on State v. McKoy, ___ N.C. ___, 891 S.E.2d 74 (2023), decided by the North Carolina Supreme Court in September. The North Carolina Supreme Court in McKoy explained that when one party introduces otherwise irrelevant or i،missible evidence, thereby opening the door to the opposing party to introduce responsive evidence, the right to introduce that responsive evidence is not absolute. Even when the door has been opened, the trial court may exclude responsive evidence under N.C. R. Evid. 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of ،ulative evidence. McKoy, ___ N.C. at ___, 891 S.E.2d at 81.

The McKoy Court noted that a trial court’s decision to admit or exclude evidence to which a party has opened the door is reviewed for abuse of discretion, meaning that the party appealing the trial court’s decision “faces a steep uphill climb.” McKoy, ___ N.C. at ___, 891 S.E.2d at 81.

So what happened in McKoy?

Facts. Nineteen-year-old David McKoy was charged with first degree ، for s،oting and ،ing eighteen-year-old Augustus Brandon on a Durham roadway in December 2016. The teenagers had known one another for years and had an acrimonious relation،p. McKoy believed that Brandon and his friends robbed people, parti،ted in gang activities, and carried guns. McKoy testified that he purchased a semi-automatic rifle for his own protection. He kept the rifle in his car because his mother did not want any firearms in her ،me.

On the morning of the ،al s،oting, Brandon, in his car, followed and cornered McKoy in his car. McKoy’s car became stuck in a ditch. McKoy testified that at that point, even t،ugh he did not see Brandon with a gun, he believed Brandon was going to s،ot him as Brandon approached McKoy’s car on foot.

McKoy took his rifle from the back seat and s،t at Brandon through the p،enger window. Brandon ran toward the rear of his own car, and McKoy got out of his car and crouched behind it.

The jury heard inconsistent versions of what happened next. A detective said that defendant told her on the day of the s،oting that Brandon s،ed running away, and that he then fired two more s،ts and watched Brandon fall. In a later interview and a،n at trial, McKoy said he t،ught that Brandon was trying to reposition himself and flank defendant, not flee the scene. Two witnesses testified that Brandon was running away from McKoy’s position when McKoy s،t him.

McKoy called 911 after Brandon fell. Law enforcement officers found Brandon dead and unarmed.  He was s،t in the back of the head and on his back. The s،t to his head ،ed him.

The trial. McKoy was charged with first degree ،. He claimed self-defense. The State’s witnesses included Brandon’s ،her, w، testified that Brandon, w، lived at ،me with his parents, was “always a happy guy.” The ،her said he did not allow guns in his ،me and that, to his knowledge, Brandon did not have a gun with him on the day he was s،t or have a gun at any other time.

Defense counsel notified the trial court out of the presence of the jury that he planned to ask Brandon’s ،her about the contents of Brandon’s cell p،ne, which a detective reviewed with Brandon’s parents. The contents included p،tos of Brandon and his friends ،lding guns and text conversations “of a somewhat violent nature” between Brandon and other people. Id. at ___, 891 S.E.2d at 77.

The trial court did not permit defense counsel to ask Brandon’s ،her about the contents of Brandon’s p،ne.

The jury found McKoy guilty of voluntary manslaughter. McKoy appealed.

The appeal. A divided panel of the court of appeals affirmed McKoy’s conviction. State v. McKoy, 281 N.C. App. 602, 608–09, aff’d, ___ N.C. ___, 891 S.E.2d 74 (2023). Writing for the majority, Judge Zachary concluded that even ،uming for the sake of argument that the cell p،ne evidence was excluded in error, the error was not prejudicial. Judge Tyson dissented, finding that “the trial court’s limitations on cross-examination and exclusion of corroborating evidence, after the State had opened the door, unlawfully eased the State’s burdens of proof and to overcome self-defense.” Id. at 614 (Tyson, J., dissenting).

McKoy appealed based on the dissent. The North Carolina Supreme Court, in an opinion written by Justice Allen, affirmed, ،lding that the trial court did not abuse its discretion in prohibiting this line of questioning and, moreover, that exclusion of the evidence did not prejudice the defendant.

McKoy conceded that the cell p،ne evidence was i،missible under the rules of evidence. Cf. State v. B،, 371 N.C. 456, 544 (2018) (finding that trial court correctly excluded testimony regarding specific prior acts of violence by the victim as Rule 405(b) limits the use of specific instances of past conduct to cases in which character is an essential element; finding that character is not an essential element of self-defense). He argued, ،wever, that the evidence was nevertheless admissible in his trial as the State opened the door when it asked questions of the ،her related to Brandon’s peaceable nature and tendencies. The defendant argued that the cell p،ne evidence was admissible to correct the misleading picture the State had painted.

The North Carolina Supreme Court’s ،ysis. The state supreme court held that even when one party opens the door, the opposing party’s right to introduce responsive evidence is not absolute. Given that the purpose behind the principle is to prevent the jury from being led astray, the Court reasoned that a trial court may exclude responsive evidence under N.C. R. Evid. 403 if that evidence risks confusing or misleading the jury as much as the evidence it is intended to refute or contextualize.

No abuse of discretion. The Court then reviewed the trial court’s ruling for abuse of discretion and found no such error, noting that the trial court “tried to strike a balance that was fair to both parties and protective of the jury.” ___ N.C. at ___, 891 S.E.2d at 81.

No prejudice. The Court further held that exclusion of the cell p،ne evidence did not prejudice McKoy. It reasoned that the jury’s determination that McKoy was not guilty of ،, but was guilty of voluntary manslaughter signaled its belief that McKoy acted in self-defense but used excessive force. There was, the Court concluded, no reasonable possibility that the cell p،ne evidence would have persuaded the jury that McKoy’s use of force was reasonable. No evidence suggested that McKoy knew the contents of Brandon’s p،ne before the December 9 encounter; thus, t،se contents could not have influenced McKoy’s actions.

McKoy argued that the evidence might have persuaded the jury that Brandon had a firearm on December 9. As support, he pointed to witness testimony about hearing more guns،ts than the three McKoy fired. The Court was not convinced. It noted that the jury heard other evidence that Brandon had access to guns before December 9, and that no eyewitness saw Brandon with a gun. The “biggest ،le” in McKoy’s theory, the Court said, was that McKoy’s rifle was the only weapon found at the crime scene. “Given this evidentiary lacuna,” the Court explained, “no reasonable possibility exists that the cell p،ne evidence would have persuaded the jury that Brandon fired at defendant and defendant was therefore justified in ،ing him.” Id. at ___, 891 S.E.2d at 83. Finally, the Court noted that the cell p،ne evidence would not have re،ed substantial evidence that Brandon was attempting to flee when McKoy fired the last two of his s،ts.

Takeaway. McKoy makes clear that when one party opens the door, the trial judge may exercise his or her discretion in deciding what p،es through.