{ "id": 8959431, "name": "STATE OF NORTH CAROLINA v. MICHAEL LAMONT MACK", "name_abbreviation": "State v. Mack", "decision_date": "2003-12-16", "docket_number": "No. COA03-176", "first_page": "595", "last_page": "606", "citations": [ { "type": "official", "cite": "161 N.C. App. 595" } ], "court": { "name_abbreviation": "N.C. Ct. 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MICHAEL LAMONT MACK" ], "opinions": [ { "text": "TYSON, Judge.\nMichael Lamont Mack (\u201cdefendant\u201d) appeals from a judgment entered after a jury found him guilty of assault on a law enforcement officer with a firearm, possession of a firearm by a convicted felon, and attempted first-degree murder.\nI. Facts\nThe State\u2019s evidence tended to show that on 6 September 1999, around 1:00 a.m., defendant went to Christina Johnson\u2019s (\u201cJohnson\u201d) house to see his son. Johnson and defendant had conceived the child. Johnson did not allow defendant inside the house. Her mother called 911 while Johnson talked to defendant through the door. When Johnson informed defendant that the police were on their way, defendant stated, \u201cI ain\u2019t afraid of the police. When they get here I\u2019ll show you.\u201d\nAround the same time, Raleigh police officer Kevin Lillis (\u201cOfficer Lillis\u201d) responded to Johnson\u2019s mother\u2019s 911 call complaining of trespassing in violation of a domestic violence protection order. The call informed him that the suspect\u2019s name was \u201cMike.\u201d Officer Lillis was wearing an orange raincoat when he arrived at the apartment complex in his marked Raleigh Police Department vehicle. He saw a black male standing on the porch of one of the apartments. Officer Lillis yelled, \u201cMike,\u201d as the suspect began to walk away. The suspect raised his arm toward Officer Lillis and fired two shots. Officer Lillis retreated to his vehicle for cover and drew his service weapon. He observed the suspect remove a red baseball cap and red shirt as he fled the scene. Officer Lillis pursued the suspect on foot but lost sight of him. Investigators found a semiautomatic pistol, red ball cap, red shirt, and a red bandana at the scene.\nDefendant was sentenced to a minimum of sixteen months and a maximum of twenty months for the possession of a firearm by a felon charge, and received a minimum 220 months and maximum 273 months for the attempted first-degree murder and assault on a law enforcement officer with a firearm. Defendant appeals.\nII. Issues\nThe issues are whether the trial court erred by: (1) making comments and questioning witnesses in violation of defendant\u2019s right to an impartial judge; (2) rejecting defendant\u2019s proposed stipulation that he had previously been convicted of a felony; (3) failing to submit lesser included offenses to the jury; (4) failing to dismiss the charge of attempted first-degree murder; (5) refusing to allow an expert witness to testify regarding mitigating factors; and (6) failing to find the existence of statutory mitigating factors.\nIII. Right to an Impartial Judge\nA. Standard of Review\nDefendant argues the trial court violated his right to an impartial judge by: (1) making demeaning and sarcastic remarks, and (2) calling and questioning witnesses.\n\u201cThe law imposes on the trial judge the duty of absolute impartiality. The trial judge also has the duty to supervise and control a defendant\u2019s trial ... to ensure fair and impartial justice for both parties.\u201d State v. Flemming, 350 N.C. 109, 126, 512 S.E.2d 720, 732, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274 (1999) (citations omitted). \u201cIt is fundamental to our system of justice that each and every person charged with a crime be afforded the opportunity to be tried \u2018before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u2019 \u201d State v. Larrimore, 340 N.C. 119, 154, 456 S.E.2d 789, 808 (1995) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)).\n\u201cIn evaluating whether a judge\u2019s comments cross into the realm of impermissible opinion, a totality of the circumstances test is utilized. Unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless.\u201d Id. at 155, 456 S.E.2d at 808 (citations omitted). The trial judge\u2019s broad discretionary power to supervise and control the trial \u201cwill not be disturbed absent a manifest abuse of discretion.\u201d State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984).\nB. Remarks bv the Trial Judge to Defendant\u2019s Counsel\nDefendant assigns error to the trial judge\u2019s remarks made during cross-examination of a State\u2019s witness. \u201cThe judge\u2019s duty of impartiality extends to defense counsel. He should refrain from remarks which tend to belittle or humiliate counsel since a jury hearing such remarks may tend to disbelieve evidence adduced in defendant\u2019s behalf.\u201d State v. Coleman, 65 N.C. App. 23, 29, 308 S.E.2d 742, 746, cert. denied, 311 N.C. 404, 319 S.E.2d 275 (1983).\nDefendant argues the following comments were sarcastic, demeaning, and violated his right to an impartial judge:\nQ. [Witness], do you know Michael Lamont Mack?\nA. Personally, no.\nQ. Do you know\u2014\nThe Court: When you talk to the jury start the morning off with your big boy voice.\nMr. McCoppin: Thank you, Judge.\nThe Court: I have the same problem. I\u2019m like this in the morning.\nHere, the trial judge was attempting to ensure that the court, jurors, and opposing counsel heard counsel\u2019s questions and the testimony. Although the statement requesting counsel to use his \u201cbig boy voice\u201d constitutes an inappropriate comment, we cannot conclude, under the \u201ctotality of the circumstances,\u201d that this statement had a \u201cprejudicial effect on the result of the trial.\u201d Larrimore, 340 N.C. at 155, 456 S.E.2d at 808.\nDefendant also assigns error to the trial judge\u2019s comments regarding his counsel\u2019s repetitive questioning. Officer Lillis was recalled by the State. Defense counsel asked on cross-examination whether the officer could \u201cvisually identify\u201d defendant as the person who shot at him. This fact had been established in prior questioning. The court stated, in front of the jury, \u201cIf you\u2019d like to ask that 15 more times, you\u2019ve already asked that about five times.\u201d\n\u201cThe trial court has a duty to control the examination of witnesses, both for the purpose of conserving the trial court\u2019s time and for the purpose of protecting the witness from prolonged, needless, or abusive examination.\u201d State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995). Here, defense counsel\u2019s question was cumulative and repetitive on Officer Lillis\u2019s lack of visual identity of defendant on the night of the incident. The trial judge\u2019s comment to avoid repetition might have tended to \u201cbelittle\u201d counsel, but the comment was calculated to prevent \u201cneedless examination.\u201d Coleman, 65 N.C. App. at 29, 308 S.E.2d at 746; White, 340 N.C. at 299, 457 S.E.2d at 861.\nThe transcript at bar reveals other incidents of inappropriate and sarcastic comments not assigned as error in this case. The trial judge at bar was recently censured by our Supreme Court for \u201cconduct prejudicial to the administration of justice that brings the judicial office into disrepute\u201d for derogatory comments during trial. In re: Inquiry of Hill, 357 N.C. 559, 564, 591 S.E.2d 859, 862 (2003). We expressly disapprove and remonstrate the trial judge\u2019s inappropriate comments and unprofessional demeanor displayed before the court, litigants, and jury in this criminal trial. Such behavior falls below the standard of professionalism expected of an officer of the court.\nDefendant has not, however, met his heavy burden of proving the trial judge\u2019s remarks deprived him of a fair trial and caused a prejudicial effect on the outcome. State v. Waters, 87 N.C. App. 502, 504, 361 S.E.2d 416, 417 (1987). This assignment of error is overruled.\nC. Interrogation of Witnesses bv the Court\nDefendant assigns as error the court\u2019s calling and questioning of witnesses. N.C. Gen. Stat. \u00a7 8C-1, Rule 614(b) (2003) provides that \u201c[t]he court may interrogate witnesses, whether called by itself or by a party.\u201d \u201c[T]he judge may question a witness in order to clarify confusing or contradictory testimony.\u201d State v. Geddie, 345 N.C. 73, 93, 478 S.E.2d 146, 156 (1996), petition denied, 522 U.S. 825, 139 L. Ed. 2d 43 (1997) (quoting State v. Ramey, 318 N.C. 457, 464, 349 S.E.2d 566, 571 (1986)). \u201cWhen the trial judge questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial judge\u2019s opinion as to defendant\u2019s guilt or innocence.\u201d State v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978).\nThe court questioned a State\u2019s witness following defense counsel\u2019s attempt to discredit the witness\u2019s personal knowledge of the case.\nMe. McCoppin: All that you know is what you have read from the document the prosecutor provided?\n[The Witness]: That\u2019s correct.\nMR. McCoppin: If I may have just a moment.\nThe Court: Can we go back to the last question? Mr. McCoppin, you asked her: All you know is what is on the document the prosecutor provided you. Where did that document come from?\nThe Witness: From the Clerk\u2019s Office. The document is a certified copy of what is on file in the Clerk\u2019s office.\nThe Court: Did it come from the prosecutor? Or from you, from the Clerk\u2019s office?\nThe Witness: The original is in the Clerk\u2019s office. The certified copy was in the possession of the prosecutor. But it is a certified, true copy of the original, which is all filed in our office.\nDefendant argues the court\u2019s questioning was intended to discredit the defense counsel and bolster the State\u2019s position.\nDefendant also asserts the court erred by interposing a series of questions seeking to assist a witness in the description of the perpetrator. The State asked Officer Lillis to describe the perpetrator. Officer Lillis testified the person was about six feet tall, had on dark clothing, and wore a red bandana. The court then asked several questions:\nThe Court: Was it male, or female?\nThe Witness: Male.\nThe Court: Could you tell what gender?\nThe Witness: I could tell it was a male.\nThe Court: What race?\nThe Witness: Black.\nThe Court: The person that was having this argument, had you ever met him before that you know of?\nThe Witness: No.\nDefendant contends the jury could have perceived this exchange as the trial judge assisting the State in proving its case.\nDefendant also argues the court erred in calling and questioning a witness after the jury returned a guilty verdict and during the sentencing phase of the trial. Defense counsel called an expert witness who testified that, in his opinion, defendant was suffering from symptoms of schizophrenia when the incident occurred. After the State rested, the court recalled Officer Lillis to the stand and asked him:\nBY THE COURT:\nQ. During the entire incident in question did the defendant, while in your presence, including while running behind the house out of your sight, during any time that you were in the presence of the defendant that night did he at any time by his movements, his physical ability appear or mental appear [sic] to be impaired.\nA. No, ma\u2019am.\nDefense counsel did not object or move to strike any of the questions asked or testimony given in each of these instances. See N.C.R. App. P. 10(b)(1) (2003) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion ....\u201d).\nWhile unusual, the court did not abuse its discretion in questioning witnesses in front of the jury to clarify the evidence and testimony being presented. The court\u2019s questioning during the sentencing phase, when no jury was present, was also proper. See N.C. Gen. Stat. \u00a7 15A-1340.12 (2003) (\u201cprimary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender\u2019s culpability . . . .\u201d). These assignments of error are overruled.\nIV. Stipulation of Conviction\nDefendant contends the trial court committed plain error in rejecting defendant\u2019s proposed stipulation that he had previously been convicted of a felony. Since defendant was charged with possession of a firearm by a felon, the State was required to prove a prior felony conviction. Defendant offered to stipulate to the prior conviction to avoid putting this evidence before the jury. The court refused to give any special instructions and instructed the jury based on the Pattern Jury Instruction on possession of a firearm by a felon. Defendant then withdrew his stipulation. The Clerk of Court introduced evidence of a prior felony conviction. Defendant failed to object to or move to strike when this evidence was introduced and now argues plain error.\nDefendant contends his attorney\u2019s failure to object constitutes ineffective assistance of counsel. Defendant has failed to provide any authority or support for this ineffective assistance of counsel claim. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d State v. Walters, 357 N.C. 68, 82-83, 588 S.E.2d 344, 353, cert. denied,-U.S.-, 157 L. Ed. 2d 320 (2003); N.C.R. App. P. 28(b)(6) (2003).\n\u201c [I]n our review of the record for plain error, \u2018defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.\u2019 \u201d Id. at 85, 588 S.E.2d at 354 (quoting State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002)). Defendant has failed to include his request for a special instruction in the record on appeal. We cannot \u201cassume or speculate that there was prejudicial error when none appears on the record before it.\u201d State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 255, disc. rev. denied, 315 N.C. 188, 337 S.E.2d 862 (1985). This assignment of error is dismissed.\nV. Lesser-included Offenses\nDefendant contends the trial court committed plain error by failing to submit to the jury lesser-included offenses of attempted voluntary manslaughter, assault with a deadly weapon with intent to kill, and attempted second-degree murder. At trial, defendant failed to object to the proposed instruction regarding attempted murder and argues plain error.\nDefendant was indicted for attempted first-degree murder, not assault with a deadly weapon with intent to kill. \u201cBecause assault with a deadly weapon with intent to kill requires proof of an element not required for attempted murder \u2014 use of a deadly weapon \u2014 it is not a lesser-included offense of attempted murder, and must be charged in a separate indictment.\u201d State v. Coble, 351 N.C. 448, 453, 527 S.E.2d 45, 49 (2000) (citation omitted). Since defendant was not charged with assault with a deadly weapon with intent to kill under a separate indictment, the trial court was not required to give a jury instruction on this offense.\nDefendant\u2019s assignment of error regarding attempted second-degree murder was also addressed in Coble. \u201cBecause specific intent to kill is not an element of second-degree murder, the crime of attempted second-degree murder is a logical impossibility under North Carolina law.\u201d Id. at 451, 527 S.E.2d at 48. The trial court did not err by not giving an instruction on attempted second-degree murder.\n\u201c[T]o support an instruction on attempted voluntary manslaughter, a defendant must produce \u2018heat of passion\u2019 or \u2018provocation\u2019 evidence negating the elements of malice, premeditation, or deliberation.\u201d State v. Rainey, 154 N.C. App. 282, 290, 574 S.E.2d 25, 30, disc. rev. denied, 356 N.C. 621, 575 S.E.2d 520 (2002); but see Coble, 351 N.C. at 450, 527 S.E.2d at 47 (\u201c[T]he crime of attempted murder, as recognized in this state, can be committed only when a person acts with the specific intent to commit first-degree murder.\u201d). Words or language do not constitute adequate provocation for taking human life. State v. Watson, 287 N.C. 147, 156, 214 S.E.2d 85, 91 (1975). Here, there was no assault or threatened assault on defendant prior to his firing of the weapon. Defendant has failed to show evidence of legal provocation.\nDefendant has failed to show the court committed plain error by not instructing ex mero mo tu on attempted voluntary manslaughter, assault with a deadly weapon with intent to kill, and attempted second-degree murder. This assignment of error is overruled.\nVI. Motion to Dismiss\nDefendant argues the trial court erred in failing to dismiss the charge of attempted first-degree murder. In a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn from the facts and evidence presented. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). \u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).\n\u201cSubstantial evidence is defined as relevant evidence which a reasonable mind could accept as adequate to support a conclusion.\u201d Lee, 348 N.C. at 488, 501 S.E.2d at 343. \u201c[T]he evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury.\u201d State v. Barnett, 141 N.C. App. 378, 383, 540 S.E.2d 423, 427 (2000), aff'd, 354 N.C. 350, 554 S.E.2d 644 (2001). \u201cThe elements of attempted first degree [sic] murder are: (1) a specific intent to kill another person unlawfully; (2) an overt act calculated to carry out that intent, going beyond mere preparation; (3) the existence of malice, premeditation, and deliberation accompanying the act; and (4) a failure to complete the intended killing.\u201d State v. Poag, 159 N.C. App. 312, 318, 583 S.E.2d 661, 666 (2003) (quoting State v. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000)).\nDefendant contends the State presented no evidence of his premeditation and deliberation to kill Officer Lillis. We have held \u201c[premeditation is present where the defendant formed a specific intent to kill the victim [over] [sic] some period of time, no matter how short, prior to perpetrating the actual act. Deliberation is acting [in] [sic] a cool state of blood and not under the influence of a violent passion.\u201d State v. Andrews, 154 N.C. App. 553, 561, 572 S.E.2d 798, 804 (2002) (citations omitted).\nPremeditation and deliberation \u201care usually proven by circumstantial evidence because they are mental processes that are not readily susceptible to proof by direct evidence.\u201d State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Here, the State\u2019s evidence tended to show the complete absence of any provocation by Officer Lillis. At the time defendant fired the gun, Officer .Lillis had not drawn his service weapon and had only called out defendant\u2019s name. Additionally, defendant fired multiple shots within a fairly close range, approximately fifty feet, towards Officer Lillis, which required separate pulls of the trigger. \u201c[S]ome amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger.\u201d State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). Defendant\u2019s own statements also tended to show defendant\u2019s intent to kill. After being informed that the police had been called, he stated, \u201cI ain\u2019t afraid of the police. When they get here I\u2019ll show you.\u201d The circumstantial evidence presented was sufficient to allow a reasonable juror to conclude that defendant acted with premeditation and deliberation. This assignment of error is overruled.\nVIL Mitigating Factors in Sentencing\nDefendant contends the trial court erred in refusing to allow an expert witness to testify regarding the existence of mitigating factors. Defendant did not make an offer of proof for the excluded testimony. This assignment of error was not preserved for appellate review and is dismissed. See State v. Williams, 355 N.C. 501, 534, 565 S.E.2d 609, 629 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).\nDefendant also argues the trial court erred in failing to find the existence of statutory mitigating factors despite sufficient evidence presented to support the factors. \u201cThe court shall make findings of the aggravating and mitigating factors present in the offense only if, in its discretion, it departs from the presumptive range of sentences specified in G.S. 15A-1340.17(c)(2).\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(c) (2003). Defendant was sentenced in the presumptive range and concedes that this Court has rejected his argument in State v. Streeter, 146 N.C. App. 594, 553 S.E.2d 240 (2001). This assignment of error is dismissed.\nVIII. Conclusion\nWe have carefully reviewed all of defendant\u2019s assignments of error. The trial judge\u2019s comments and actions complained of were inappropriate, and fell below the professionalism expected of an officer of the court. Plaintiff, however, has failed to show that but for such comments and conduct, under the \u201ctotality of the circumstances,\u201d the trial court\u2019s actions had a \u201cprejudicial effect on the result at trial.\u201d Larrimore, 340 N.C. at 155, 456 S.E.2d at 808.\nNo prejudicial error.\nJudges McCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.", "Bruce T. Cunningham, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL LAMONT MACK\nNo. COA03-176\n(Filed 16 December 2003)\n1. Criminal Law\u2014 court\u2019s comments to counsel \u2014 inappropriate\nThe trial judge\u2019s request that defense counsel use his \u201cbig boy voice\u201d was inappropriate, but not prejudicial under the totality of the circumstances.\n2. Criminal Law\u2014 court\u2019s comments to counsel \u2014 sarcastic and inappropriate \u2014 not prejudicial\nA trial judge\u2019s sarcastic and inappropriate comments, including the statement \u201cIf you\u2019d like to ask that 15 more times . . were inappropriate and unprofessional but not prejudicial.\n3. Criminal Law\u2014 court\u2019s questioning of witnesses \u2014 no abuse of discretion\nA trial judge\u2019s questioning of witnesses was unusual, but not an abuse of discretion.\n4. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to object at trial\nA defense attorney\u2019s failure to object to the court\u2019s rejection of a stipulation was not ineffective assistance of counsel.\n5. Appeal and Error\u2014 special instruction \u2014 request not in record\nAn assignment of error to the failure to give a special instruction was dismissed where the request was not included in the record.\n6. Homicide\u2014 lesser included offenses \u2014 failure to instruct ex mero motu \u2014 no error\nThere was no plain error in not instructing ex mero motu on lesser included offenses in a prosecution for attempted first-degree murder resulting from shots being fired at a police officer.\n7. Homicide\u2014 attempted first-degree murder \u2014 evidence sufficient\nThere was no error in the trial court\u2019s refusal to dismiss a charge of attempted first-degree murder where the State\u2019s evidence tended to show that defendant fired at an officer several times at close range without provocation.\n8. Appeal and Error\u2014 preservation of issues \u2014 excluded testimony \u2014 no offer of proof\nThe failure to make an offer of proof concerning excluded testimony about mitigating circumstances resulted in a dismissal of the assignment of error.\n9. Sentencing\u2014 no finding on mitigating evidence \u2014 sentence within presumptive range\nThe trial court\u2019s failure to make findings concerning statutory mitigating factors about which evidence was presented was not error where defendant was sentenced within the presumptive range.\nAppeal by defendant from judgment entered 11 July 2002 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 12 November 2003.\nAttorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State.\nBruce T. Cunningham, Jr., for defendant-appellant." }, "file_name": "0595-01", "first_page_order": 625, "last_page_order": 636 }