State v. Jackson, ___ N.C. App. ___, 810 S.E.2d 397 (Feb. 20, 2018)

In this first-degree murder case, the trial court did not abuse its discretion by allowing the State to elicit testimony from a supplemental rebuttal expert, Dr. Wolfe, first disclosed by the State during trial. The defendant asserted a violation of G.S. 15A-903(a)(2)’s pretrial expert witness disclosure requirements. The State did not disclose Wolfe, her opinion or expert report before trial. The State offered Wolfe in response to its receipt, right before jury selection, of a primary defense expert’s final report, which differed from the expert’s previously supplied report. Wolfe was a supplemental rebuttal witness, not the State’s sole rebuttal witness, nor a primary expert introducing new evidence. The defendant was able to fully examine Wolfe and the basis for her opinion during a voir dire held eight days before her trial testimony. The trial court set parameters limiting Wolfe’s testimony, and the defendant received the required discovery eight days before she testified. No court was held on four of these days, providing the defense an opportunity to prepare for her testimony. Although the defense moved to continue its expert’s voir dire examination based on the timing of the State’s discovery disclosures (Wolfe initially was offered as a rebuttal witness on the Dabuert voir dire of the defendant’s expert; when the trial court found that the defendant’s expert satisfied Rule 702, Wolfe was offered as a rebuttal expert at trial), it never moved for a trial continuance or requested more time to prepare for Wolfe’s rebuttal. Thus, the defendant failed to show that the trial court abused its discretion in allowing Wolfe’s limited rebuttal testimony.