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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MICHAEL LAMONT MACK
Filed: 16 December 2003
1. Criminal Law_court's comments to counsel_inappropriate
The trial judge's request that defense counsel use his big boy voice was inappropriate,
but not prejudicial under the totality of the circumstances.
2. Criminal Law_court's comments to counsel--sarcastic and inappropriate_not
A trial judge's sarcastic and inappropriate comments, including the statement If you'd
like to ask that 15 more times... were inappropriate and unprofessional but not prejudicial.
3. Criminal Law_court's questioning of witnesses_no abuse of discretion
A trial judge's questioning of witnesses was unusual, but not an abuse of discretion.
4. Constitutional Law_effective assistance of counsel_failure to object at trial
A defense attorney's failure to object to the court's rejection of a stipulation was not
ineffective assistance of counsel.
5. Appeal and Error_special instruction_request not in record
An assignment of error to the failure to give a special instruction was dismissed where the
request was not included in the record.
6. Homicide--lesser included offenses_failure to instruct ex mero motu_no error
There 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.
7. Homicide_attempted first-degree murder_evidence sufficient
There was no error in the trial court's refusal to dismiss a charge of attempted first-degree
murder where the State's evidence tended to show that defendant fired at an officer several times
at close range without provocation.
8. Appeal and Error_preservation of issues--excluded testimony_no offer of proof
The failure to make an offer of proof concerning excluded testimony about mitigating
circumstances resulted in a dismissal of the assignment of error.
9. Sentencing_no finding on mitigating evidence_sentence within presumptive range
The trial court's failure to make findings concerning statutory mitigating factors about
which evidence was presented was not error where defendant was sentenced within the
Appeal 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.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
Michael Lamont Mack (defendant) 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.
The State's evidence tended to show that on 6 September 1999,
around 1:00 a.m., defendant went to Christina Johnson's (Johnson)
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, I ain't afraid of the police. When
they get here I'll show you.
Around the same time, Raleigh police officer Kevin Lillis
(Officer Lillis) responded to Johnson's mother's 911 call
complaining of trespassing in violation of a domestic violence
protection order. The call informed him that the suspect's name
was Mike. Officer Lillis was wearing an orange raincoat when he
arrived at the apartment complex in his marked Raleigh PoliceDepartment vehicle. He saw a black male standing on the porch of
one of the apartments. Officer Lillis yelled Mike 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.
Defendant was sentenced to a minimum of sixteen (16) months
and a maximum of twenty (20) 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.
The issues are whether the trial court erred by: (1) making
comments and questioning witnesses in violation of defendant's
right to an impartial judge; (2) rejecting defendant's 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
III. Right to an Impartial Judge
A. Standard of Review
Defendant argues the trial court violated his right to animpartial judge by: (1) making demeaning and sarcastic remarks,
and (2) calling and questioning witnesses.
The law imposes on the trial judge the duty of absolute
impartiality. The trial judge also has the duty to supervise and
control a defendant's trial . . . to ensure fair and impartial
justice for both parties. 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). It is fundamental to our system of
justice that each and every person charged with a crime be afforded
the opportunity to be tried 'before an impartial judge and an
unprejudiced jury in an atmosphere of judicial calm.' 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)).
In evaluating whether a judge's 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. Id. at 155, 456
S.E.2d at 808 (citations omitted). The trial judge's broad
discretionary power to supervise and control the trial will not be
disturbed absent a manifest abuse of discretion. State v.
Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984).
B. Remarks by the Trial Judge to Defendant's Counsel
 Defendant assigns error to the trial judge's remarks made
during cross-examination of a State's witness. The judge's duty
of impartiality extends to defense counsel. He should refrain from
remarks which tend to belittle or humiliate counsel since a juryhearing such remarks may tend to disbelieve evidence adduced in
defendant's behalf. 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).
Defendant argues the following comments were sarcastic,
demeaning, and violated his right to an impartial judge:
Q. [Witness], do you know Michael Lamont Mack?
A. Personally, no.
Q. Do you know -
THE COURT: When you talk to the jury start the
morning off with your big boy voice.
MR. McCOPPIN: Thank you, Judge.
THE COURT: I have the same problem. I'm like this
in the morning.
Here, the trial judge was attempting to ensure that the court,
jurors, and opposing counsel heard counsel's questions and the
testimony. Although the statement requesting counsel to use his
big boy voice constitutes an inappropriate comment, we cannot
conclude, under the totality of the circumstances, that this
statement had a prejudicial effect on the result of the trial.
Larrimore, 340 N.C. at 155, 456 S.E.2d at 808.
 Defendant also assigns error to the trial judge's comments
regarding his counsel's repetitive questioning. Officer Lillis was
recalled by the State. Defense counsel asked on cross-examination
whether the officer could visually identify defendant as the
person who shot at him. This fact had been established in prior
questioning. The court stated, in front of the jury, If you'd
like to ask that 15 more times, you've already asked that about
five times. The trial court has a duty to control the examination of
witnesses, both for the purpose of conserving the trial court's
time and for the purpose of protecting the witness from prolonged,
needless, or abusive examination. 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's question was cumulative and
repetitive on Officer Lillis' lack of visual identity of defendant
on the night of the incident. The trial judge's comment to avoid
repetition might have tended to belittle counsel, but the comment
was calculated to prevent needless examination. Coleman, 65 N.C.
App. at 29, 308 S.E.2d at 746; White, 340 N.C. at 299, 457 S.E.2d
The 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
conduct prejudicial to the administration of justice that brings
the judicial office into disrepute for derogatory comments during
trial. In re: Inquiry of Hill, 357 N.C. 559, 564, ___ S.E.2d ___,
(Nov. 7, 2003) (No. 316A03). We expressly disapprove and
remonstrate the trial judge's 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.
Defendant has not, however, met his heavy burden of proving
the trial judge's 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 isoverruled.
C. Interrogation of Witnesses by the Court
 Defendant assigns as error the court's calling and
questioning of witnesses. N.C. Gen. Stat. § 8C-1, Rule 614(b)
(2003) provides that [t]he court may interrogate witnesses,
whether called by itself or by a party. [T]he judge may question
a witness in order to clarify confusing or contradictory
testimony. 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)). When 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's
opinion as to defendant's guilt or innocence. State v. Davis
N.C. 397, 402, 241 S.E.2d 656, 659 (1978).
The court questioned a State's witness following defense
counsel's attempt to discredit the witness's personal knowledge of
[MR. McCOPPIN]: All that you know is what you have
read from the document the
[THE WITNESS]: That's correct.
MR. McCOPPIN: If I may have just a moment.
THE 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?
THE WITNESS: From the Clerk's Office. The
document is a certified copy of whatis on file in the Clerk's office.
THE COURT: Did it come from the prosecutor? Or
from you, from the Clerk's office?
THE WITNESS: The original is in the Clerk's
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
Defendant argues the court's questioning was intended to discredit
the defense counsel and bolster the State's position.
Defendant 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:
THE COURT: Was it male, or female?
THE WITNESS: Male.
THE COURT: Could you tell what gender?
THE WITNESS: I could tell it was a male.
THE COURT: What race?
THE WITNESS: Black.
THE COURT: The person that was having this argument,
had you ever met him before that you know
THE WITNESS: No.
Defendant contends the jury could have perceived this exchange as
the trial judge assisting the State in proving its case.
Defendant also argues the court erred in calling and
questioning a witness after the jury returned a guilty verdict andduring 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:
BY THE COURT:
Q. 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
A. No, ma'am.
Defense 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) (In order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, objection or motion . . . .).
While 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's questioning during the
sentencing phase, when no jury was present, was also proper. See
N.C. Gen. Stat. § 15A-1340.12 (2003) (primary 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's
culpability . . . .). These assignments of error are overruled.
IV. Stipulation of Conviction
 Defendant contends the trial court committed plain error
in rejecting defendant's 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.
Defendant contends his attorney's failure to object
constitutes ineffective assistance of counsel. Defendant has
failed to provide any authority or support for this ineffective
assistance of counsel claim. Assignments of error not set out in
the appellant's brief, or in support of which no reason or argument
is stated or authority cited, will be taken as abandoned. State
v. Walters, 357 N.C. 68, 82-83, ___ S.E.2d ___, ___, cert. denied,
___ U.S. ___, 157 L. Ed. 2d 320 (2003); N.C.R. App. P. 28(b)(6)
 [I]n our review of the record for plain error, 'defendant
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.' Id. at 85, ___ S.E.2d at ___ (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 therecord on appeal. We cannot assume or speculate that there was
prejudicial error when none appears on the record before it.
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.
V. Lesser-Included Offenses
 Defendant 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.
Defendant was indicted for attempted first-degree murder, not
assault with a deadly weapon with intent to kill. Because assault
with a deadly weapon with intent to kill requires proof of an
element not required for attempted murder - use of a deadly weapon
- it is not a lesser-included offense of attempted murder, and must
be charged in a separate indictment. 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.
Defendant's assignment of error regarding attempted second-
degree murder was also addressed in Coble. Because 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. Id. at 451, 527 S.E.2d at 48. The trialcourt did not err by not giving an instruction on attempted
[T]o support an instruction on attempted voluntary
manslaughter, a defendant must produce 'heat of passion' or
'provocation' evidence negating the elements of malice,
premeditation, or deliberation. 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
([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.). 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
Defendant has failed to show the court committed plain error
by not instructing ex mero motu on attempted voluntary
manslaughter, assault with a deadly weapon with intent to kill, and
attempted second-degree murder. This assignment of error is
VI. Motion to Dismiss
 Defendant 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. Statev. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). Upon
defendant's 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's being the perpetrator of such offense. If
so, the motion is properly denied. 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).
Substantial evidence is defined as relevant evidence which a
reasonable mind could accept as adequate to support a conclusion.
Lee, 348 N.C. at 488, 501 S.E.2d at 343. [T]he evidence need only
give rise to a reasonable inference of guilt for the case to be
properly submitted to the jury. 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). The 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. 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)).
Defendant contends the State presented no evidence of his
premeditation and deliberation to kill Officer Lillis. We have
held [p]remeditation 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. State v. Andrews, 154
N.C. App. 553, 561, 572 S.E.2d 798, 804 (2002) (citations omitted).
Premeditation and deliberation are usually proven by
circumstantial evidence because they are mental processes that are
not readily susceptible to proof by direct evidence. State v.
Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Here, the
State's 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's name. Additionally, defendant fired
multiple shots within a fairly close range, approximately fifty
feet, towards Officer Lillis, which required separate pulls of the
trigger. [S]ome amount of time, however brief, for thought and
deliberation must elapse between each pull of the trigger. 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's own statements
also tended to show defendant's intent to kill. After being
informed that the police had been called, he stated, I ain't
afraid of the police. When they get here I'll show you. 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
VII. Mitigating Factors in Sentencing
 Defendant contends the trial court erred in refusing to
allow an expert witness to testify regarding the existence ofmitigating 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).
 Defendant also argues the trial court erred in failing to
find the existence of statutory mitigating factors despite
sufficient evidence presented to support the factors. The 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). N.C. Gen. Stat. § 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.
We have carefully reviewed all of defendant's assignments of
error. The trial judge's 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 totality of the
circumstances, the trial court's actions had a prejudicial effect
on the result at trial. Larrimore
, 340 N.C. at 155, 456 S.E.2d at
No prejudicial error.
Judges MCCULLOUGH and BRYANT concur.
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