{ "id": 4181605, "name": "STATE OF NORTH CAROLINA v. ERIC ALAN OAKES", "name_abbreviation": "State v. Oakes", "decision_date": "2011-01-04", "docket_number": "No. COA09-1280", "first_page": "18", "last_page": "35", "citations": [ { "type": "official", "cite": "209 N.C. App. 18" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "637 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637184, 12637182, 12637183 ], "year": 2006, "pin_cites": [ { "parenthetical": "distinguishing Wright" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0180-03", "/se2d/637/0180-01", "/se2d/637/0180-02" ] }, { "cite": "632 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636319 ], "year": 2006, "pin_cites": [ { "page": "514-15", "parenthetical": "distinguishing Wright" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0509-01" ] }, { "cite": "621 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634403 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0874-01" ] }, { "cite": "616 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633564 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "369-70", "parenthetical": "per curiam" }, { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0366-01" ] }, { "cite": "624 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634819 ], "year": 2006, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/se2d/624/0329-01" ] }, { "cite": "691 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "442-43" }, { "page": "447", "parenthetical": "holding no prejudicial error upon review of the defendant's argument that he was prejudiced by, inter alia, the State's use of \"expert opinion masquerading as lay testimony\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "752", "parenthetical": "Newby, J., dissenting" } ], "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "year": 2011, "pin_cites": [ { "page": "156", "parenthetical": "Newby, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "499 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318566 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "233" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/us/499/0225-01" ] }, { "cite": "573 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "129", "parenthetical": "\"[T]rial courts are more adept than appellate courts at. . . litigation supervision . . . .\" (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 233, 113 L. Ed. 2d 190, 199 (1991)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511484 ], "year": 2002, "pin_cites": [ { "page": "586", "parenthetical": "\"[T]rial courts are more adept than appellate courts at. . . litigation supervision . . . .\" (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 233, 113 L. Ed. 2d 190, 199 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0582-01" ] }, { "cite": "510 U.S. 540", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 235096 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "555-56" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/us/510/0540-01" ] }, { "cite": "360 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797632, 3787328, 3791939, 3788678, 3796552, 3797070, 3795089, 3789426, 3798133 ], "year": 2006, "pin_cites": [ { "parenthetical": "distinguishing Wright" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0651-08", "/nc/360/0651-09", "/nc/360/0651-05", "/nc/360/0651-07", "/nc/360/0651-06", "/nc/360/0651-04", "/nc/360/0651-03", "/nc/360/0651-01", "/nc/360/0651-02" ] }, { "cite": "179 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234232 ], "year": 2006, "pin_cites": [ { "page": "69-70", "parenthetical": "distinguishing Wright" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0061-01" ] }, { "cite": "360 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798426 ], "year": 2005, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0080-01" ] }, { "cite": "172 N.C. App. 464", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320459 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "468-71", "parenthetical": "per curiam" }, { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0464-01" ] }, { "cite": "359 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "775" }, { "page": "775-76", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "775", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723431 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "628" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0626-01" ] }, { "cite": "571 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "69", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "69", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250860 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "570", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0565-01" ] }, { "cite": "220 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "337", "parenthetical": "\"The substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\"" } ], "opinion_index": 0 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "year": 1975, "pin_cites": [ { "page": "598", "parenthetical": "\"The substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "273 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142780 ], "weight": 2, "year": 1927, "pin_cites": [ { "page": "523", "parenthetical": "explaining that the Fourteenth Amendment's due process guarantee would have been violated if an impartial judge had not presided over the case" }, { "page": "754", "parenthetical": "explaining that the Fourteenth Amendment's due process guarantee would have been violated if an impartial judge had not presided over the case" } ], "opinion_index": 0, "case_paths": [ "/us/273/0510-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "190" }, { "page": "192" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "922", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "164", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "386 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "567", "parenthetical": "citations omitted" }, { "page": "567" } ], "opinion_index": 0 }, { "cite": "325 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491770 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "603", "parenthetical": "citations omitted" }, { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0583-01" ] }, { "cite": "689 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "870" } ], "opinion_index": 0 }, { "cite": "363 N.C. 841", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150721 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "846-47" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0841-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "376" }, { "page": "469" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "686", "parenthetical": "quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)" }, { "page": "692" }, { "page": "686", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "458", "parenthetical": "quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "650-51", "parenthetical": "holding that the prosecutor's statement, \"he who runs with the pack is responsible for the kill,\" was not improper when it explained the legal theory of acting in concert and the argument was supported by the evidence" }, { "page": "639-41" } ], "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "546-47", "parenthetical": "holding that the prosecutor's statement, \"he who runs with the pack is responsible for the kill,\" was not improper when it explained the legal theory of acting in concert and the argument was supported by the evidence" }, { "page": "527-29" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "603 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "359 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798427 ], "year": 2004, "pin_cites": [ { "page": "19-20" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0001-01" ] }, { "cite": "186 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573891, 8573832, 8573869, 8573914, 8573852 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0723-04", "/nc/280/0723-01", "/nc/280/0723-03", "/nc/280/0723-05", "/nc/280/0723-02" ] }, { "cite": "185 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "476-77", "parenthetical": "noting the Court's disapproval of the solicitor's referring to the defendant as an \"animal,\" but explaining that, on the facts in that case, the Court could not hold that the defendant had been prejudiced by the State's characterization" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552712 ], "year": 1971, "pin_cites": [ { "page": "269-70", "parenthetical": "noting the Court's disapproval of the solicitor's referring to the defendant as an \"animal,\" but explaining that, on the facts in that case, the Court could not hold that the defendant had been prejudiced by the State's characterization" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0261-01" ] }, { "cite": "181 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "459-61" } ], "opinion_index": 0 }, { "cite": "279 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566096 ], "year": 1971, "pin_cites": [ { "page": "165-67" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0163-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "107-08", "parenthetical": "internal citation omitted" }, { "page": "107-08" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "133-34", "parenthetical": "internal citation omitted" }, { "page": "133-34" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "506 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "467" } ], "opinion_index": 0 }, { "cite": "349 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571614 ], "year": 1998, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0001-01" ] }, { "cite": "166 L. Ed. 2d 281", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "549 U.S. 960", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "360 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792897 ], "year": 2006, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0231-01" ] }, { "cite": "669 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "265", "parenthetical": "quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150820 ], "year": 2008, "pin_cites": [ { "page": "545", "parenthetical": "quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0514-01" ] } ], "analysis": { "cardinality": 1600, "char_count": 39077, "ocr_confidence": 0.733, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34707679868594654 }, "sha256": "07b0ae2f5596514df290d1dd04e1bea775dc5d4f7cf1161cdf39318984f196b8", "simhash": "1:abea547156746df8", "word_count": 6442 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur.", "Judge JACKSON concurred prior to December 31, 2010." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC ALAN OAKES" ], "opinions": [ { "text": "JACKSON, Judge.\nEric Alan Oakes (\u201cdefendant\u201d) appeals from the 26 August 2008 judgment entered upon a jury\u2019s verdict finding him guilty of first-degree murder and sentencing him to life imprisonment without parole in the custody of the North Carolina Department of Correction. For the reasons set forth below, we hold no error.\nOn or about 6 July 2002, defendant and Joey Forehand (\u201cForehand\u201d), defendant\u2019s friend from the Army, visited a bar in Ahoskie, North Carolina. Forehand spoke with a black male at the bar about purchasing ecstasy. Forehand entered the man\u2019s vehicle, a yellow Cavalier, and defendant waited in the parking lot. The men drove off, and, when they returned, Forehand told defendant that he had just been robbed by the men from whom he had tried to purchase the ecstasy. Forehand was upset about being robbed, and he and defendant discussed means of getting back Forehand\u2019s money. The following week, defendant and Forehand returned to Fort Bragg and purchased a handgun for $50.00. Defendant stated that it was Forehand\u2019s idea to purchase the gun but that he contributed $20.00 toward its purchase.\nOn 12 July 2002, the following week, defendant and Forehand returned to Ahoskie and stayed at Forehand\u2019s mother\u2019s home. On 13 July 2002, Forehand and defendant planned to drive around the Ahoskie area to look for the men who had robbed Forehand or their car. Forehand went to Wal-Mart, and Forehand indicated that one of the men was in the store. Forehand and defendant left the store and waited in Forehand\u2019s car in the parking lot.\nForehand and defendant located Tyrell Deshaun Overton (\u201cOverton\u201d), who was shopping with his family on 13 July 2002. Defendant and Forehand, in Forehand\u2019s vehicle, followed Overton\u2019s van to a restaurant, where Overton\u2019s family exited the vehicle, and Overton drove off alone. While both vehicles were stopped at a traffic light, defendant exited Forehand\u2019s vehicle and approached Overton\u2019s van. Defendant entered the passenger side of Overton\u2019s van and \u201chad the gun out, pointing] it at him the whole time.\u201d\nWhen the light turned green, the cars turned onto Memorial drive and entered the parking lot of the Golden Corral. The State produced a statement by defendant, indicating that he and Overton wrestled over the gun before two shots were fired. After the shots had been fired, defendant returned to Forehand\u2019s vehicle, and the two drove away. Eye-witness testimony indicated that Overton and defendant both exited the vehicle, Overton ran toward the Golden Corral, and defendant pointed a gun at Overton and fired at him before returning to Forehand\u2019s vehicle.\nDr. Paul Spence (\u201cDr. Spence\u201d) performed an autopsy of Overton\u2019s body. Dr. Spence noted that Overton had two gunshot wounds. Dr. Spence concluded that one shot entered Overton\u2019s chest and another entered Overton\u2019s back. Dr. Spence noted that Overton\u2019s body had no trace of soot or gunshot residue, which would indicate that the gunshots could not have occurred within two feet of the body. He also noted that he did not have an opportunity to observe Overton\u2019s clothing.\nDefendant presented testimony from Dr. M.G.F. Gilliland (\u201cDr. Gilliland\u201d), another medical examiner, at trial. Dr. Gilliland explained that, in her opinion, the distance the gunshot traveled could only be an arbitrary estimation without Overton\u2019s clothes. Dr. Gilliland also testified that Overton had scrapes on the knuckles of his right hand, consistent with a struggle over a handgun.\nDuring trial, defendant presented testimony from Dave Cloutier (\u201cCloutier\u201d). Defendant attempted to have Cloutier classified as an expert witness in the field of \u201cuse of force science.\u201d However, the prosecutor objected, and the trial court sustained the objection, allowing Cloutier to testify without being qualified as an expert. Cloutier\u2019s testimony contained information regarding the amount of time it takes a person to move his body in various directions, the amount of time it takes to pull a trigger once the decision to do so has been made, and the amount of \u201ctrigger pull\u201d it typically requires to activate the trigger and hammer on a semi-automatic handgun on an initial and subsequent shot.\nOn 21 August 2008, the jury returned a unanimous verdict finding defendant guilty of first-degree murder on the bases of (1) attempted robbery with a dangerous weapon, (2) first-degree kidnapping, and (3) premeditation or deliberation. On 26 August 2008, the jury unanimously recommended that defendant be sentenced to life imprisonment without parole. Defendant appeals.\nPreliminarily, we note that defendant expressly abandons his assignments of error numbered one and four. Accordingly, we need not address these assignments of error. See N.C. R. App. P. 28(b)(6) (2007) (\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).\nIn defendant\u2019s second assignment of error, he contends that the trial court committed reversible error by failing to intervene ex mero motu to address several of the prosecutor\u2019s remarks during the State\u2019s closing argument that purportedly violated defendant\u2019s rights to due process and a fair trial as secured by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 18, 19, 23, 24, and 27 of the North Carolina Constitution. We disagree.\nDefendant failed to object to the State\u2019s closing argument at trial. As such, our review is limited to \u201c \u2018whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.\u2019 \u201d State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008) (quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)). \u201cUnder this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u201d Id. (citations and internal quotation marks omitted). \u201cTo establish such an abuse, defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u201d State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998). Furthermore, our Supreme Court has explained that,\nin order to constitute reversible error, the prosecutor\u2019s remarks must be both improper and prejudicial. Improper remarks are those calculated to lead the jury astray. Such comments include references to matters outside the record and statements of personal opinion. Improper remarks may be prejudicial either because of their individual stigma or because of the general tenor of the argument as a whole. . . . Such tactics risk prejudicing a defendant... by improperly leading the jury to base its decision not on the evidence relating to the issues submitted, but on misleading characterizations, crafted by counsel, that are intended to undermine reason in favor of visceral appeal.\nState v. Jones, 355 N.C. 117, 133-34, 558 S.E.2d 97, 107-08 (2002) (internal citation omitted)..\nIn the case sub judice, the prosecutor made the following remarks during the State\u2019s closing argument, which now are challenged on appeal:\nNow [the assistant district attorney] gave you an analogy of the octopus. When I was thinking about this case and what to argue to you in this case, ladies and gentlemen, I thought about two things. One, you watch the Wild Kingdom shows. Ya\u2019ll [sic] have seen the National Geographic Wild Kingdom shows. And you have these tigers or you have these cheetahs or the black panthers. And I watch them. And I wince when I see the end of it. But I watch those shows because you watch those panthers and you watch those tigers and what do they do? They hunt.\nWhat they do is they will watch their intended victim, which is usually an antelope or pretty little beer [sic] or gazelle. And they will watch it and they will lay [sic] in that high grass. And you watch it and they will lay [sic] there and they will watch every movement of that dear [sic] or that gazelle or that antelope. And then they follow them. And most of the time the antelope or the gazelle will get attacked. Ya\u2019ll [sic] have seen those shows. They usually run in packs of four, ten, twenty.\nAnd what the tiger has to do is the tiger has to make a decision. And you can almost see him making the decision, well, I can attack him, I can attack one of the gazelles in the pack. Or what do they normally do, ladies and gentlemen, when you watch that TV show? They normally wait until that gazelle or that deer goes over to a brook and gets something to drink and separates from the pack. And then they go in for the kill. And then that\u2019s when you seem them grab them, chew them in half, the blood goes everywhere and everybody cuts the TV off. But that\u2019s what they do. That\u2019s how they kill things. They hunt them.\nNow, ladies and gentlemen, that\u2019s exactly what this man did. He hunted Tyrell Overton. . . .\nBecause, ladies and gentlemen, the State contends that if you are sitting [at] a stoplight and somebody gets in your car and points a gun at your head and says you drive, it\u2019s just like that thing about the panther and the tiger again.\nHe got him at the stoplight because they saw Tyrell Overton when he dropped his family off. Separated him from the pack. Okay?\nAnd the State has proven beyond a reasonable doubt that when you hunt somebody down like an animal and you kill them and you indicate [sic] seven months and when the cops are at your friend\u2019s house and you slump down in the seat hoping you are not going to get caught, that\u2019s first-degree murder. . . .\nBoth this Court and our Supreme Court have expressed consistent disapproval of improper arguments by the State that appeal not to the evidence or reason, but rather, to emotions, a prosecutor\u2019s personal opinion or experience, or visceral reaction, including- \u2014 as here \u2014 drawing comparisons between a criminal defendant and members of the animal kingdom. See, e.g., State v. Roache, 358 N.C. 243, 297-98, 595 S.E.2d 381, 416 (2004) (explaining that the prosecutor improperly argued that \u201c \u2018[defendant and Lippard] packed up like wild dogs \u2014 they were high on the taste of blood and power over their victims. And just like wild dogs, if you run with the pack you are responsible for the kill[,]\u2019 \u201d because the argument \u201c \u2018improperly [led] the jury to base its decision not on the evidence relating to the issue submitted, but on misleading characterizations, crafted by counsel, that are intended to undermine reason in favor of visceral appeal[,]\u2019 \u201d but holding that the trial court did not err by failing to intervene ex mero motu in view of overwhelming evidence of the defendant\u2019s guilt) (citation omitted) (emphasis added) (second and fourth alterations added); State v. Smith, 279 N.C. 163, 165-67, 181 S.E.2d 458, 459-61 (1971) (granting a new trial for the trial court\u2019s failure to intervene ex mero motu after the solicitor had called the defendant a liar, asserted that he knew when to seek a conviction in a capital case and when not to do so, conducted a \u201ctirade\u201d in front of the jury, and characterized the defendant as being \u201clower than the bone belly of a cur dog\u201d for his alleged transgressions); Jones, 355 N.C. at 133-34, 558 S.E.2d at 107-08 (holding that the prosecutor\u2019s argument was improper and prejudicial when, during the State\u2019s closing argument, the prosecutor referenced the defendant by stating, \u201c \u2018You got this quitter, this loser, this worthless piece of \u2014 who\u2019s mean. . . . He\u2019s as mean as they come. He\u2019s lower than the dirt on a snake\u2019s belly[,]\u2019 \u201d because the prosecutor purposefully attempted to shift the jury\u2019s focus from the jury\u2019s opinion of the defendant\u2019s character to the prosecutor\u2019s opinion, and the prosecutor attempted to steer the jury from its role as fact-finder by appealing to its passions or prejudices); State v. Brown, 13 N.C. App. 261, 269-70, 185 S.E.2d 471, 476-77 (1971) (noting the Court\u2019s disapproval of the solicitor\u2019s referring to the defendant as an \u201canimal,\u201d but explaining that, on the facts in that case, the Court could not hold that the defendant had been prejudiced by the State\u2019s characterization), cert. denied, 280 N.C. 723, 186 S.E.2d 925 (1972). But see State v. Bell, 359 N.C. 1, 19-20, 603 S.E.2d 93, 107 (2004) (holding that the prosecutor\u2019s use of an analogy \u2014comparing the co-defendants to a pack of hyenas who stalk their prey, as may be seen on \u201cthose nature shows\u201d \u2014 was not abusive and improper when, in context, the analogy helped to explain the complex legal theory of acting in concert with the use of the phrase, \u201che who hunts with the pack is responsible for the kill\u201d); accord State v. Goode, 341 N.C. 513, 546-47, 461 S.E.2d 631, 650-51 (1995) (holding that the prosecutor\u2019s statement, \u201che who runs with the pack is responsible for the kill,\u201d was not improper when it explained the legal theory of acting in concert and the argument was supported by the evidence).\nPursuant to the foregoing authority, we hold that, on these facts, the prosecutor\u2019s remarks were not improper. The State was pursuing defendant\u2019s conviction for the first-degree murder of Overton on the theory that defendant committed the murder with premeditation and deliberation and in the course of an attempted armed robbery and first-degree kidnapping. We reiterate that comparisons between criminal defendants and animals are strongly disfavored, but we are convinced by the State\u2019s argument on appeal that the use of the analogy, in context, helps to explain the complex legal theory surrounding premeditation and deliberation.\nHere, the State presented evidence of a statement written by defendant in which he explained that Forehand had been robbed by several men when Forehand tried to buy drugs. According to defendant\u2019s statement, after Forehand was robbed, he and defendant returned home, and, on the following weekend, the two men\nwent back looking for the male [who had robbed Forehand the previous weekend] so we could get the money back. We saw the male at Wal-Mart so we waited outside for him. When he came out, we followed him until he came to a stoplight. I jumped out and got in the male\u2019s vehicle. . . . [H]e tried to take the gun from me. While we were struggling, the gun went off. He then came at me again and I shot him.\nThe State also introduced a supplement to defendant\u2019s written statement in which defendant explained that Forehand first had the idea to get a gun in preparation for their return to Ahoskie and that defendant contributed $20.00 toward its purchase. Defendant further explained that he and Forehand awoke Saturday morning to look for the men who previously had robbed Forehand. Forehand recognized one of the men, Overton, at Wal-Mart, and Forehand and defendant followed Overton from Wal-Mart to a Kentucky Fried Chicken restaurant where Overton dropped off his family. Defendant then detailed how he and Forehand followed Overton to a stoplight at which defendant exited Forehand\u2019s vehicle and entered Overton\u2019s vehicle, carrying the gun that he had helped to purchase. While in Overton\u2019s van, he and defendant struggled; the gun went off, and, when Overton reached for the gun again, defendant shot him a second time.\nAccordingly, having reviewed the remainder of the State\u2019s closing argument, evidence, and theory of the case to provide the necessary context to review the State\u2019s analogy, we hold that the challenged portions of the prosecutor\u2019s remarks were not so grossly improper so as to warrant the trial court\u2019s intervention ex mero mo tu, and defendant\u2019s first assignment of error is overruled.\nNext, defendant argues that the trial court erred and that he was prejudiced by the court\u2019s denial of defendant\u2019s motion to have Cloutier qualified as an expert in \u201cuse of force science\u201d and to give expert opinions on that subject. We disagree.\nNorth Carolina Rules of Evidence, Rule 702(a) provides that \u201c [i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (2009). Furthermore, North Carolina Rules of Evidence, Rule 104(a) establishes that \u201c[p]reliminary questions concerning the qualification of a person to be a witness . . . shall be determined by the court . . . .\u201d N.C. Gen. Stat. \u00a7 8C-1, RuleT04(a) (2009). Trial courts are not bound by the rules of evidence when making these determinations. Id. It is well established that \u201ctrial courts are afforded \u2018wide latitude of discretion when making a determination about the admissibility of expert testimony.\u2019 \u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). Similarly, \u201cour trial courts are . . . vested with broad discretion to limit the admissibility of expert testimony as necessitated by the demands of each case.\u201d Id. at 469, 597 S.E.2d at 692. Accordingly, the trial court\u2019s ruling \u201cwill not be reversed on appeal absent a showing of abuse of discretion.\u201d Id. at 458, 597 S.E.2d at 686 (citations omitted).\nAdditionally, in Howerton, our Supreme Court\nset forth a three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert\u2019s testimony relevant?\nId. (citing State v. Goode, 341 N.C. 513, 527-29, 461 S.E.2d 631, 639-41 (1995)) (internal citations omitted).\nIn the case sub judice, defendant shot Overton two times. One wound was to Overton\u2019s chest; the other was. to his back. Defendant sought to have Cloutier admitted as an expert in the use of force to testify with respect to threat assessment and reaction times to demonstrate that \u201ca person can turn his body 90 degrees faster than a person can pull a trigger once the decision has been made to pull the trigger.\" (Emphasis added). Defendant asserts that \u201cMr. Cloutier\u2019s opinion that the two gunshots in this case would have occurred within the confines of the vehicle and during the course of a struggle went to the heart of the defense in this case.\u201d Defendant further asserts that \u201cthis view of the evidence points away from the specific intent to kill in premeditated and deliberate murder and the intent elements of attempted robbery with a dangerous weapon and first-degree kidnapping.\u201d\nNotwithstanding defendant\u2019s assertions, in State v. Bunch, 363 N.C. 841, 846-47, 689 S.E.2d 866, 870 (2011), our Supreme Court set forth a comprehensive exposition of the felony murder rule in North Carolina:\nFelony murder is defined by statute in N.C.G.S. \u00a7 14-17, and this Court has confined the offense to \u201conly two elements: (1) the defendant knowingly committed or attempted to commit one of the felonies indicated in N.C.G.S. \u00a7 14-7, and (2) a related killing.\u201d State v. Thomas, 325 N.C. 583, 603, 386 S.E.2d 555, 567 (1989) (citations omitted). Similarly, in State v. Richardson, this Court explained that \u201cthe elements necessary to prove felony murder are that [1] the killing took place [2] while the accused was perpetrating or attempting to perpetrate one of the enumerated felonies [in N.C.G.S. \u00a7 14-17].\u201d 341 N.C. 658, 666, 462 S.E.2d 492, 498 (1995). Finally, this Court described felony murder in State v. Jones as follows: \u201c[1] When a killing is committed [2] in the perpetration of an enumerated felony (arson, rape, etc.) or other felony committed with the use of a deadly weapon, murder in the first-degree is established....\u201d 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) (citations omitted). Moreover, in State v. Collins, this Court commented that \u201ccausation . . . must be established in order to sustain a conviction for any form of homicide, either murder or manslaughter.\u201d 334 N.C. 54, 57, 431 S.E.2d 188, 190 (1993); id. at 60-61, 431 S.E.2d at 192.\n(Original footnote call number modified). Thus, the intent element for felony murder relates to the intent to commit the underlying felonies enumerated in North Carolina General Statues, section 14-17. See id. See also State v. Thomas, 325 N.C. 583, 603, 386 S.E.2d 555, 567 (1989) (\u201cWhether the defendant committed the killing himself, intended that the killing take place, or even knew that a killing might occur is irrelevant. More specifically, a killing during the commission or attempt to commit one of the felonies indicated in the statute is murder in the first-degree without regard to premeditation, deliberation or malice.\u201d) (internal citations omitted) (emphasis added).\nHere, the verdict sheet sets forth the jury\u2019s unanimous findings that defendant was \u201c[g]uilty of first-degree murder: [o]n the basis of attempted robbery with a dangerous weapon; [o]n the basis of first-degree kidnapping; [and] [o]n the basis of premeditation and deliberation^]\u201d (Emphasis added). Although defendant attempts to assert prejudice in terms of the denial of an opportunity for a witness to obviate that intent through testimony under the guise of an expert, defendant\u2019s intent to kill is irrelevant to a consideration of felony murder. See id. Furthermore, the State\u2019s evidence, including defendant\u2019s statement, plainly sets forth defendant\u2019s intent to commit the felony \u2014 attempted robbery with a dangerous weapon \u2014 during which the killing occurred. Accordingly, we hold that defendant was not prejudiced by the trial court\u2019s denial of defendant\u2019s motion that Cloutier be received as an expert witness in the use of force in the case sub judice.\nIn defendant\u2019s third argument on appeal, defendant contends that the trial judge erred by not recusing himself upon defendant\u2019s motion. We disagree.\nIn relevant part, North Carolina General Statutes, section 15A-1223 provides that\n[a] judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is . .. [prejudiced against the moving party or in favor of the adverse party ....\nN.C. Gen. Stat. \u00a7 15A-1223(b)(l) (2009). The North Carolina Code of Judicial Conduct requires that,\n[o]n motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge\u2019s impartiality may reasonably be questioned, including but not limited to instances where . . . [t]he judge has a personal bias or prejudice concerning a party.\nCode of Judicial Conduct Canon 3(C), 2010 Ann. R. N.C. 518-19.\nA judge\u2019s impartiality also implicates both federal and state constitutional due process principles. See, e.g., Tumey v. Ohio, 273 U.S. 510, 523, 71 L. Ed. 749, 754 (1927) (explaining that the Fourteenth Amendment\u2019s due process guarantee would have been violated if an impartial judge had not presided over the case); State v. Miller, 288 N.C. 582, 598, 220 S.E.2d 326, 337 (1975) (\u201cThe substantive and procedural due process requirements of the Fourteenth Amendment mandate that every person charged with a crime has an absolute right to a fair trial before an impartial judge and an unprejudiced jury.\u201d).\nWe previously have explained that,\n[w]hen a party requests such a recusal by the trial court, the party must demonstrate objectively that grounds for disqualification actually exist. The requesting party has the burden of showing through substantial evidence that the judge has such a personal bias, prejudice or interest that he would be unable to rale impartially. If there is sufficient force to the allegations contained in a recusal motion to proceed to find facts, or if a reasonable man knowing all of the circumstances would have doubts about the judge\u2019s ability to rale on the motion to recuse in an impartial manner, the trial judge should either recuse himself or refer the recusal motion to another judge.\nIn re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65, 69 (2002) (internal citations and quotation marks omitted).\nOur Supreme Court has qualified the foregoing by noting that the bases for disqualification set forth in North Carolina General Statutes, section 15A-1223 are not exclusive, and that resorting solely to section 15A-1223 does not end the proper inquiry. State v. Fie, 320 N.C. 626, 628, 359 S.E.2d 774, 775 (1987). Furthermore,\n[i]t is not enough for a judge to be just in his judgment; he should strive to make the parties and the community feel that he is just; he owes this to himself, to the law and to the position he holds.... The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and litigants may have the highest confidence in the integrity and fairness of the courts.\nId. at 628, 359 S.E.2d at 775-76 (internal citations and quotation marks omitted).\nWe have held that a defendant was deprived of a fair and impartial trial when the judge\u2019s words and actions \u201cset a tone of fear at the trial,\u201d and \u201ccreated an impermissibly chilling effect\u201d that likely affected the defendant\u2019s counsel\u2019s ability to examine witnesses. See State v. Wright, 172 N.C. App. 464, 468-71, 616 S.E.2d 366, 369-70, aff\u2019d, 360 N.C. 80, 621 S.E.2d 874 (2005) (per curiam). However, not every instance of a judge\u2019s impatience, \u201cacerbic\u201d remarks, or failure to demonstrate \u201ca model of temperateness,\u201d when viewed in the totality of circumstances, deprives a defendant of a fair trial. See State v. Fuller, 179 N.C. App. 61, 69-70, 632 S.E.2d 509, 514-15, appeal dismissed, 360 N.C. 651, 637 S.E.2d 180 (2006) (distinguishing Wright). Cf. Liteky v. United States, 510 U.S. 540, 555-56, 127 L. Ed. 2d 474, 491 (1994) (\u201cNot establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge\u2019s ordinary efforts at courtroom administration \u2014 even a stern and short-tempered judge\u2019s ordinary efforts at courtroom administration \u2014 remain immune.\u201d) (emphasis in original).\nIn the case subjudice, after thorough review of the parties\u2019 appellate briefs, the parties\u2019 oral arguments, and relevant portions of the voluminous transcripts created during defendant\u2019s trial and pre-trial motions\u2019 hearings, we are convinced that defendant has failed to \u201cdemonstrate objectively that grounds for disqualification actually exist.\u201d In re Faircloth, 153 N.C. App. at 570, 571 S.E.2d at 69 (citation and quotation marks omitted). Defendant bases his argument on appeal on four grounds: (1) excerpts from a pretrial motions hearing conducted on 11 September 2007, (2) excerpts from a pretrial motions hearing conducted on 4 February 2008, (3) excerpts from a voir dire hearing on defendant\u2019s trial counsel\u2019s motion to recuse on 11 August 2008, and (4) an assertion that \u201cthe trial court was often dismissive of defense counsel\u2019s efforts and made a number of rulings unfavorable to the Defendant.\u201d\nInitially, with respect to defendant\u2019s assertion that the trial court often was dismissive of counsel\u2019s efforts and that the court made rulings against defendant, we note that defendant fails to support this sweeping assertion with specific examples of impropriety at trial or the \u201cefforts\u201d of which the court was \u201cdismissive.\u201d We also note that even the most optimistic advocate could not reasonably expect to advance through a trial such as this without some rulings being made against his party\u2019s interests. Without more argument or support, this contention is without merit.\nWith respect to 11 September 2007, defendant\u2019s trial counsel sought to have the District Attorney and her staff disqualified from trying the case on the theory that the District Attorney might be needed as a defense witness. The judge stated that\nI don\u2019t have any doubt at this point, Mr. Sutton, that that\u2019s exactly what you are doing is laying the groundwork to try to put error in the case. I mean, that\u2019s exactly what\u2019s going on here. I\u2019ve been listening to it for an hour. I think I understand what\u2019s going on here.\nHowever, the court already had determined that the potential danger envisioned by defendant\u2019s trial counsel \u2014 having the District Attorney testify as a witness for the defense \u2014 would not occur because she would not be able to testify as to inadmissible information concerning plea negotiations. The foregoing statement from the trial judge is the harshest cited by defendant, and it wholly fails to meet the objective criteria required for recusal. Defendant\u2019s remaining concerns from the 11 September 2007 hearing similarly fail when read in context.\nWith respect to the 4 February 2008 hearing, defendant argues that the following colloquy demonstrates the trial judge\u2019s bias:\nTHE COURT: Let me make one inquiry. I was told when we quit for lunch ya\u2019ll [sic] had arrived at some trial date agreement. Is that correct?\n[PROSECUTOR]: Yes, sir, the State has, Judge. We have talked about the different dates that both sides wanted to take into account all the different things that have happened, Judge. I think everybody has agreed \u2014 I\u2019m not going to speak for ya\u2019ll [sic] \u2014 but August 11. . . .\nTHE COURT: Of course you know the Court\u2019s feeling is that the case needs to be tried more quickly than that, however, if everybody is committed to getting the case tried at that time I\u2019ll bite my tongue and let you schedule it. . . .\n[DEFENSE COUNSEL]: Your Honor, I think you can see what we have done to try to get records. We are trying as hard as we can. And his previous lawyer got disbarred and we have never been able to talk to her. We are doing our level best we can, Judge.\n[PROSECUTOR]: Judge, if I could, this date was agreed upon. I don\u2019t think that anybody has said that was the date that agreed upon, the defendant. And we went back and forth on dates now.\n[DEFENSE COUNSEL]: But we didn\u2019t ask for that. We asked for 15 months.\nTHE COURT: I don\u2019t care how much you asked for.\n[DEFENSE COUNSEL]: Then why are you asking us if we agreed?. . . .\nTHE COURT: . . . It\u2019s [been] five and a half years. The public and your client need this case resolved. The bar and this State ought to be ashamed that we can\u2019t get cases tried more quickly than this and do a good job.\n[DEFENSE COUNSEL]: Your Honor, why does the Court feel it necessary \u2014\nTHE COURT: Mr. Sutton, don\u2019t start. Step out and talk to Mr. Warmack and Mr. Dixon.\n[DEFENSE COUNSEL]: Your Honor, I object to the Court\u2019s comments on the record about the bar ought to be embarrassed.\nTHE COURT: Mr. Sutton, step out of the courtroom.\n[DEFENSE COUNSEL]: I can\u2019t leave until the hearing is over.\nTHE COURT: It\u2019s over.\n[DEFENSE COUNSEL]: Thank you, Your Honor.\nTHE COURT: Mr. Sutton, I don\u2019t know who\u2019s going to be here to try this case in August but if I\u2019m here I want you to know that I will not tolerate your talking back to the Court and arguing to the Court. I will not tolerate it.\n[DEFENSE COUNSEL]: Then I would ask that you not hear it. THE COURT: Step out.\nWith respect to the judge\u2019s statement that \u201c[t]he bar and this State ought to be ashamed that we can\u2019t get cases tried more quickly than this and do a good job[,]\u201d we note that it was not directed for or against a particular party or position. Rather, the court admonished the attorneys generally in view of the fact that more than five and one-half years had elapsed between defendant\u2019s indictment and his trial notwithstanding the fact that defendant\u2019s prior counsel had been disbarred \u2014 one reason for a portion of the delay. The remainder of the judge\u2019s admonishment to defendant\u2019s trial counsel \u2014 namely that the judge would \u201cnot tolerate . . . talking back to the Court and . . . arguing to the Court\u201d \u2014 does not impart an objective bias or partiality. It does, however, reflect a call to order and anticipate a trial with appropriate professional decorum. A review of the record at trial, however, demonstrates that the court\u2019s admonishment did not \u201ccreate]] an impermissibly chilling effect on the trial process.\u201d Wright, 172 N.C. App. at 471, 616 S.E.2d at 370.\nWith respect to the 11 August 2008 hearing, the court heard and considered defendant\u2019s evidence, including, inter alia, defendant\u2019s concerns with respect to the 11 September 2007 and 4 February 2008 hearings discussed supra. The court also considered defendant\u2019s trial counsel\u2019s statements relating to a prior case \u2014 distinct from the one at issue \u2014 during which, counsel asserts, he temporarily was hospitalized for gastrointestinal pains notwithstanding having a trial calendared that day with the same judge presiding over the case sub judice. Counsel asserted that the judge called and inquired with counsel\u2019s doctor about counsel\u2019s medical treatment and accused counsel of \u201cmalingering.\u201d These prior incidents, defendant argues, demonstrate the trial judge\u2019s bias against defendant\u2019s trial counsel. Upon review of the record of the case sub judice, defendant fails to demonstrate that any prior interactions between the trial judge and his trial counsel in any way affected his trial. Our review of the record does not demonstrate any chilling effect, and defendant cites none. See Wright, 172 N.C. App. at 471, 616 S.E.2d at 370. Furthermore, the proceedings do nothing to cast the \u201ctaint of suspicion\u201d on \u201c[t]he purity and integrity of the judicial process[.]\u201d See Fie, 320 N.C. at 628, 359 S.E.2d at 775 (citations and internal quotation marks omitted).\nAccordingly, defendant\u2019s argument that the trial court erred by denying his motion for recusal is without merit.\nFinally, we write to caution the trial court with respect to the following statement:\nThe other thing I want to do is put on the record that I leave to the appellate courts whether or not any recommendation as to discipline should be made to any of the responses or conduct of the attorneys based upon the record in this case as to whether any of the Rules of Practice or Rules of Conduct have been violated.\nIt is unclear whether the statement related to (1) the issue of the State\u2019s closing arguments, (2) the exchanges between defendant\u2019s trial counsel and the trial court, (3) another specific, albeit unarticulated reason, or (4) other general concerns. Nonetheless, it is the trial court\u2019s responsibility initially to pass on these concerns if the court has them, especially in view of the fact that the trial court is in a better position than a Court of the Appellate Division both to observe and control the trial proceedings. See, e.g., Augur v. Augur, 356 N.C. 582, 586, 573 S.E.2d 125, 129 (2002) (\u201c[T]rial courts are more adept than appellate courts at. . . litigation supervision . . . .\u201d (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 233, 113 L. Ed. 2d 190, 199 (1991)). It is not for the trial court to abdicate its role in managing the conduct of trial to an appellate court whose task is to review the cold record.\nFor the foregoing reasons, we hold no error.\nNo Error.\nJudges ELMORE and STROUD concur.\nJudge JACKSON concurred prior to December 31, 2010.\n. Dr. Spence is a specialist and was received as an expert in forensic pathology. At the time of Overton\u2019s murder, Dr. Spence was working at the Brody School of Medicine at East Carolina University.\n. We rely upon Howerton because, as noted in a recent Supreme Court dissent, \u201c[t]here is only one evidentiary standard for expert testimony.\u201d State v. Ward, 364 N.C. 133, 156, 694 S.E.2d 738, 752 (2011) (Newby, J., dissenting).\n. \u201c \u2018A murder . . . which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree Bunch, 363 N.C. at 846 n.2, 689 S.E.2d at 870 n.2 (quoting N.C. Gen. Stat. \u00a7 14-17 (2007)).\n. We note that, although the trial court did not allow Cloutier to testify as an expert, Cloutier still presented the testimony defendant sought, albeit under the guise of a lay witness. But cf. State v. Armstrong, -N.C. App. -, -, 691 S.E.2d 433, 442-43 (2010); id. at-, 691 S.E.2d at 447 (holding no prejudicial error upon review of the defendant\u2019s argument that he was prejudiced by, inter alia, the State\u2019s use of \u201cexpert opinion masquerading as lay testimony\u201d).\n. Canon 3 was amended last in 2006. Therefore, the 2010 version of the North Carolina Code of Judicial Conduct reflects the same principles that were applicable during the proceedings at issue here.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Diane A. Reeves, for the State.", "Sue Genrich Berry, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC ALAN OAKES\nNo. COA09-1280\n(Filed 4 January 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAssignments of error numbered one through four that defendant failed to address in his brief were deemed abandoned under N.C. R. App. P. 28(b)(6).\n2. Criminal Law\u2014 prosecutor\u2019s arguments \u2014 comparing defendant to an animal\nThe trial court did not err in a first-degree murder case by failing to intervene ex mero mo tu to address several of the prosecutor\u2019s remarks during the State\u2019s closing argument. Although comparisons between criminal defendants and animals are disfavored, the use of the analogy in context helped explain the complex legal theory surrounding premeditation and deliberation.\n3. Witnesses\u2014 denial of qualification as expert \u2014 use of force science \u2014 intent irrelevant\nThe trial court did not abuse its discretion in a first-degree murder case by denying defendant\u2019s motion to have a witness qualified as an expert in \u201cuse of force science\u201d and to give expert opinions on that subject. Although defendant asserted prejudice in terms of the denial of an opportunity for a witness to obviate intent, defendant\u2019s intent to kill was irrelevant to a consideration of felony murder.\n4. Trials\u2014 motion to recuse judge \u2014 failure to show objective grounds for disqualification\nThe trial judge did not err in a first-degree murder case by failing to recuse himself upon defendant\u2019s motion. Defendant failed to demonstrate objectively that grounds for disqualification existed.\n5. Appeal and Error\u2014 preservation of issues \u2014 managing conduct of trial\nIt was the trial court\u2019s responsibility in a first-degree murder case to initially pass on any concerns it had with the trial, especially since it was in a better position to observe and control the trial proceedings. The trial court should not abdicate its role in managing the conduct of trial to an appellate court.\nAppeal by defendant from judgments entered 26 August 2008 by Judge William C. Griffin, Jr. in Hertford County Superior Court. Heard in the Court of Appeals 25 March 2010.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Diane A. Reeves, for the State.\nSue Genrich Berry, for defendant-appellant." }, "file_name": "0018-01", "first_page_order": 28, "last_page_order": 45 }