State v. McKoy and Opening the Door

Suppose the defendant is on trial for murder.  He argues he shot the victim in self-defense.

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

Counsel for the defendant then asks the father:  After your son died, did you see pictures on his cell phone of him with his friends holding guns?

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

How should 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, who 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 likelihood 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?

Constitutional 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 against him. In so holding, 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, who pled guilty to possessing a different firearm, shot 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. Massachusetts, 557 U.S. 305 (2009). Id. The Court disagreed, holding 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 shooter 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 antithetical 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 inadmissible 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 cumulative 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 murder for shooting and killing eighteen-year-old Augustus Brandon on a Durham roadway in December 2016. The teenagers had known one another for years and had an acrimonious relationship. McKoy believed that Brandon and his friends robbed people, participated 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 home.

On the morning of the fatal shooting, 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 though he did not see Brandon with a gun, he believed Brandon was going to shoot him as Brandon approached McKoy’s car on foot.

McKoy took his rifle from the back seat and shot at Brandon through the passenger 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 shooting that Brandon started running away, and that he then fired two more shots and watched Brandon fall. In a later interview and again at trial, McKoy said he thought 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 shot him.

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

The trial. McKoy was charged with first degree murder. He claimed self-defense. The State’s witnesses included Brandon’s father, who testified that Brandon, who lived at home with his parents, was “always a happy guy.” The father said he did not allow guns in his home and that, to his knowledge, Brandon did not have a gun with him on the day he was shot 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 father about the contents of Brandon’s cell phone, which a detective reviewed with Brandon’s parents. The contents included photos of Brandon and his friends holding 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 father about the contents of Brandon’s phone.

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 assuming for the sake of argument that the cell phone 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, holding 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 phone evidence was inadmissible under the rules of evidence. Cf. State v. Bass, 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, however, that the evidence was nevertheless admissible in his trial as the State opened the door when it asked questions of the father related to Brandon’s peaceable nature and tendencies. The defendant argued that the cell phone evidence was admissible to correct the misleading picture the State had painted.

The North Carolina Supreme Court’s analysis. 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 phone evidence did not prejudice McKoy. It reasoned that the jury’s determination that McKoy was not guilty of murder, 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 phone 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 phone before the December 9 encounter; thus, those 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 gunshots 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 hole” 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 phone evidence would have persuaded the jury that Brandon fired at defendant and defendant was therefore justified in killing him.” Id. at ___, 891 S.E.2d at 83. Finally, the Court noted that the cell phone evidence would not have rebutted substantial evidence that Brandon was attempting to flee when McKoy fired the last two of his shots.

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