An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-591


Filed: 3 June 2003


v .                                 Cumberland County
                                    No. 00CRS055178

    Appeal by defendant from judgment entered 24 January 2002 by Judge William C. Gore, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 11 March 2003.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Alexander McC. Peters, for the State.

    Kurtz and Blum, P.L.L.C., by Howard A. Kurtz for defendant- appellant.

    HUNTER, Judge.

    Kewarn Mack (“defendant”) appeals from a first degree murder conviction. Defendant was sentenced to a term of life imprisonment without the possibility of parole. For the reasons stated herein, we find no error.
    The State's evidence tended to show that on 19 December 1999, a few days after an argument had taken place between Kizer Gables (“Gables”) and Sherrod Herring (“Herring”), defendant, who was a good friend of Gables, shot and killed Herring, a member of a gang called “the Moore Street boys.” A few nights prior to the shooting, defendant, Gables, and Gables' cousin, Jermel Neal (“Neal”) went to BT's, a local shop and hangout spot that sold beer. While at BT's, Gables became upset when Herring looked intohis car and stated: “'You're not the f------ police. What are you looking in my car for?'” Neal and Herring, who had been friends for several years, walked away together, and Neal said to Herring, “'I can't let you do that to my . . . family,'” or something to that effect. Defendant, visibly upset from hearing this statement, attempted to find out from Neal why Herring had made comments about Neal's family but Neal did not respond to defendant's inquiries.
    Two nights later, Gables dropped defendant and Neal off at BT's. When Gables returned about fifteen or twenty minutes later, he parked by the side of a building in the parking lot across the street from BT's. Later that night, defendant moved Gables' car to the front of the building in the parking lot across the street from BT's. At one point during the evening, Herring walked towards Gables, which concerned Neal, because Neal knew that Herring had a bad temper, that he was capable of violence, and that he did not take being disrespected lightly. Neal proceeded across the street and spoke with Herring, and Neal testified that Herring agreed to let the whole matter go because Gables was Neal's cousin.
    Immediately after moving Gables' car, defendant walked up to Neal and Herring and told Neal, “'I need you to go with me somewhere.'” Neal refused and defendant asked him two more times to leave. Suddenly defendant pulled Neal to the side and said, “'[f]--- it[,] I live this[,]'” and then shot Herring. Neal testified that “'I live this . . .'” are lyrics to a song they had been listening to. At the time of the shooting, Gables was sitting in his car with the engine running. Upon hearing the gunfire,members of “the Moore Street boys,” ran towards BT's. Defendant and Neal hurriedly jumped into Gables' car and told him to drive off. Gables testified that prior to the shooting, defendant had told him to get into the car and start the engine while he went to speak to Neal and Herring. Upon being asked by Neal why he had shot Herring, defendant repeated “'[d]amn'” a couple of times. To Neal, defendant appeared “amped up,” or “hyped” as they drove away from the scene. To Gables, defendant appeared “normal” and just repeatedly said to drive away. Defendant would not talk to Gables about what had happened.
    Neal was dropped off a couple of blocks away from the scene of the shooting because he was afraid “the Moore Street boys” might be looking for him and did not want to return immediately to his home. When Neal returned home around 5:00 or 6:00 a.m., Gables and defendant were there, asleep. Shortly thereafter, defendant and Gables packed their bags and headed to New York for Neal's aunt's funeral. Neal did not go with them because he wanted to find out the status of his friend, Herring. The next day Neal found out that Herring was dead, and Neal went to New York for the funeral. The first time that Neal saw Gables in New York, Neal told Gables that he needed to turn defendant in, and that if he did not, Neal would turn Gables in. While in New York, defendant told Gables that North Carolina did not have a case against him, and that they should place the blame on Neal. Further, sometime before trial, Neal saw defendant in North Carolina, and defendant told Neal, “'[w]hen the trial come, just don't show up. Go somewhere.'”    A pathologist testified that Herring died from exsanguination (bleeding to death) from a gunshot wound to the lower abdomen. The bullet removed from the victim appeared to be a hollow tipped bullet, which is a projectile specifically designed to maximize damage to the victim. In addition, Erica Baldwin (“Baldwin”), who had met defendant a few months prior to the shooting, testified that when she asked defendant what happened, “[h]e basically said that if he didn't think [Herring] wasn't a coward, he wouldn't have never shot him.” Defendant did not present any evidence at trial.


    The sole issue before us on appeal is whether the trial court erred by denying his request to instruct the jury on second degree murder as a lesser included offense of first degree murder. Defendant asserts that he was preemptively defending his friend, Neal, in the heat of passion, and that his right to due process was denied when the trial court refused to give the jury an instruction on second degree murder.
    The applicable test for determining whether the trial court should have instructed the jury on second degree murder is set forth as follows:
        The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).
    First degree murder is defined as “the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997). “Premeditation means that the act was thought out beforehand for some length of time, however short . . . .” State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83 (1990). Deliberation is defined as “an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 836 (1994). The Supreme Court of North Carolina has recognized that it is usually difficult to prove the elements of premeditation and deliberation with direct evidence due to their nature as mental processes, but rather, these elements are most often proved through the use of circumstantial evidence. State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994).
    “The requirement of a 'cool state of blood' does not require that the defendant be calm or tranquil. The phrase 'cool state of blood' means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason.” State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991) (citations omitted). “[E]vidence that the defendant and the victim argued, without more,is insufficient to show that the defendant's anger was strong enough to disturb his ability to reason.” State v. Solomon, 340 N.C. 212, 222, 456 S.E.2d 778, 785 (1995)).
        Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are (1) provocation on the part of the deceased; (2) conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.

State v. Fisher, 318 N.C. 512, 517-18, 350 S.E.2d 334, 338 (1986).     Defendant argues that there were no statements or acts by him which could serve as evidence of premeditation or deliberation. On the contrary, Gables testified that defendant, before shooting Herring, not only moved Gables' car to the front of the building in the parking lot across from BT's, but instructed Gables to get in the car and keep it running. The jury could easily have inferred from this testimony that defendant had thought about the shooting, aware that he would need a fast get away given the number of Herring's friends with weapons in the area.
    In the instant case, no evidence of provocation on the part of Herring was presented. As to defendant's conduct, there is slightly conflicting testimony about defendant's demeanor following the shooting: Neal testified that defendant was hyped up, while Gables testified that defendant appeared normal. Defendant's conduct before the shooting, however, is telling in that he movedGables' car into a more readily accessible location, and instructed Gables to get in the car and keep the engine running. Furthermore, defendant tried to cover up the shooting on numerous occasions, attempting to blame others and to persuade witnesses not to testify against him. In addition, defendant told Baldwin that he would not have shot Herring had Herring not been such a coward. Finally, there is evidence that the killing was done in a brutal manner. Defendant shot Herring in the stomach with what appeared to be a hollow tipped bullet, a projectile specifically designed to maximize damage to the victim.
    While testimony at trial revealed that it could indeed have been dangerous to have a conflict with Herring, Neal himself testified that he was close to Herring and spoke with him voluntarily on the night of the shooting to make sure that everything was okay. There was no evidence presented indicating that Neal was fearful of Herring that night, nor that Herring had made any threatening moves towards Neal, defendant, or Gables. Furthermore, defendant's argument for “preemptive[] defen[se]” of his friend Neal is not recognized by law, illustrated by the fact that defendant cited no authority supporting such a position. Defendant also argues that heat of passion is shown in that he was presumably upset by the fact that he could not get Neal to step away from Herring before shooting him. On the contrary, the jury could easily have inferred that defendant was merely trying to get Neal out of the way so that he would not get hurt in the process. Moreover, even if defendant became upset or nervous that Herringattempted to speak with Gables that evening, this evidence alone is insufficient to show that defendant's emotions were strong enough to impair his ability to reason. If anything, this is additional circumstantial evidence to show intent, motive, deliberation, and premeditation. Defendant's argument that he shot Herring in the heat of passion must also fail because the dispute that appears to have precipitated the shooting had occurred at least twenty-four hours before, allowing defendant sufficient time to cool down.
    In conclusion, the State proved each element of first degree murder, including premeditation and deliberation, and no evidence was presented to negate any of these elements. Therefore, the trial court properly denied defendant's request for an instruction on second degree murder.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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