{ "id": 11145085, "name": "STATE OF NORTH CAROLINA v. VINCENT TAN HALL, Defendant", "name_abbreviation": "State v. Hall", "decision_date": "1999-08-03", "docket_number": "No. COA98-525", "first_page": "417", "last_page": "427", "citations": [ { "type": "official", "cite": "134 N.C. App. 417" } ], "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": "423 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "333 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546001 ], "year": 1992, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0067-01" ] }, { "cite": "491 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "347 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551053 ], "year": 1997, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0193-01" ] }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "pin_cites": [ { "parenthetical": "abuse of discretion only where ruling is manifestly unsupported by reason" } ], "opinion_index": 0 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "pin_cites": [ { "parenthetical": "abuse of discretion only where ruling is manifestly unsupported by reason" } ], "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "395 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "327 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495939 ], "year": 1990, "pin_cites": [ { "page": "356-57" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0346-01" ] }, { "cite": "504 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470144 ], "year": 1998, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0702-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "54", "parenthetical": "emphasis in original" }, { "page": "56" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "278-79", "parenthetical": "emphasis in original" }, { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "890", "parenthetical": "emphasis in original" }, { "page": "890, 2" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "303-04", "parenthetical": "emphasis in original" }, { "page": "303" }, { "page": "303" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "116", "parenthetical": "excluding evidence from jury is drastic sanction limited to manifestly suspect identification testimony; anything short of that is \"for the jury to weigh ... [in that] evidence with some element of untrust-worthiness is customary grist for the jury mill\"" }, { "page": "155", "parenthetical": "excluding evidence from jury is drastic sanction limited to manifestly suspect identification testimony; anything short of that is \"for the jury to weigh ... [in that] evidence with some element of untrust-worthiness is customary grist for the jury mill\"" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "504 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "93", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468692 ], "year": 1998, "pin_cites": [ { "page": "503", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0488-01" ] }, { "cite": "226 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "406 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "845", "parenthetical": "harmless error analysis applied to in-court identification following hypnosis" } ], "opinion_index": 0 }, { "cite": "329 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554319 ], "year": 1991, "pin_cites": [ { "page": "571", "parenthetical": "harmless error analysis applied to in-court identification following hypnosis" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0557-01" ] }, { "cite": "272 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "301 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569847 ], "year": 1981, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0607-01" ] }, { "cite": "800 F.2d 437", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1600105 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "443", "parenthetical": "description of assailant by witness under hypnosis \"closely matched the description he had given to police shortly after the shooting\"" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/f2d/800/0437-01" ] }, { "cite": "317 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "88" }, { "page": "88, 2" }, { "page": "88" }, { "page": "88" }, { "page": "88" }, { "page": "88" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526350 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "397" }, { "page": "396" }, { "page": "397" }, { "page": "397" }, { "page": "397" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0392-01" ] }, { "cite": "319 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "188" }, { "page": "188", "parenthetical": "\"hypnotically refreshed testimony is inadmissible injudicial proceedings,\" and \"party proffering the testimony of a previously hypnotized subject is under a duty to disclose the fact of th[e] hypnosis to the court and counsel. . . before the testimony of the witness\"" }, { "page": "188" } ], "opinion_index": 0 }, { "cite": "311 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685492 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "533-34" }, { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0515-01" ] } ], "analysis": { "cardinality": 993, "char_count": 24799, "ocr_confidence": 0.751, "pagerank": { "raw": 2.484121685690708e-07, "percentile": 0.8078484498517094 }, "sha256": "ca1e35ad2d1a7b22ce571169b716a14dedb0a15b823d416ccf7cfa41aab6cae2", "simhash": "1:85ac740237ed3842", "word_count": 3892 }, "last_updated": "2023-07-14T15:28:46.713894+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VINCENT TAN HALL, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals the trial court\u2019s judgment and commitment entered upon convictions by a jury of first-degree murder and armed robbery. We conclude the trial court committed no prejudicial error.\nDefendant was indicted 16 December 1996 for the murder and attempted armed robbery of Keir Lohbeck (Lohbeck). The charges were consolidated and tried at the 28 July 1997 Criminal Session of Wake County Superior Court.\nThe State\u2019s evidence at trial tended to show the following: On 25 January 1994, Lohbeck and Catherine Harold (Harold), employees of a Raleigh Blockbuster Video store, closed the business at 1:00 a.m. As the pair walked to their automobiles in a well-lighted parking lot, Harold showed Lohbeck a photograph album containing photos from a recent trip. While looking at the album, Harold noticed a man walking in the distance. Once inside her automobile, Harold looked through the passenger window and saw Lohbeck talking to a man between his truck and another vehicle. As she began to drive off, Harold observed Lohbeck and the man struggling, heard a \u201cbang\u201d and then saw Lohbeck fall.\nLohbeck died shortly thereafter from a .32 caliber gunshot wound to the neck. Harold described the assailant as a black male, approximately thirty years old with some facial hair, 5\u201910\u201d tall and weighing between one hundred sixty and one hundred eighty pounds, wearing a white hooded sweatshirt with red lettering. Harold indicated she had clearly seen the man\u2019s side profile at a distance of seven feet.\nOn 2 February 1994, Harold was interviewed and hypnotized by City of Raleigh police officer Michael Hunter (Hunter). During hypnosis, Harold related a description similar to that previously given, but added that the man had small eyes, detailed lips and a broad nose.\nAt trial, Harold described the assailant consistent with her pre-hypnosis statements, but also included the additional details which arose during hypnosis. Upon learning Harold had previously been hypnotized, the prosecutor immediately informed the judge and defense counsel of the hypnosis. Notwithstanding, the prosecutor also sought permission to tender an in-court identification of defendant by Harold, based solely upon her observations the night of the murder. Defendant thereupon moved to suppress Harold\u2019s identification evidence, asserting it would constitute inadmissible hypnotically refreshed testimony. The trial court conducted a voir dire hearing, rendered specific findings of fact, and denied defendant\u2019s motion. Harold thereupon identified defendant before the jury as the individual who shot Lohbeck.\nDarrold Brown (Brown), one of defendant\u2019s roommates, testified for the State in exchange for a reduced sentence on a robbery charge. Brown indicated he heard defendant enter their apartment, located across the street from the Blockbuster store in question, around 1:00 a.m. on 25 January 1994. At 8:00 a.m. that morning, defendant told Brown he had killed a man at the Blockbuster store in an attempt to rob him and stated that \u201che had to get rid of the gun or they\u2019d be able to connect him\u201d with the crime. Brown further testified he and defendant robbed Burger King restaurants in Fuquay-Varina and Raleigh shortly after the Blockbuster killing.\nDefendant testified he was in his apartment on 25 January 1994 around 1:00 a.m. talking to his girlfriend on the telephone. Defendant\u2019s girlfriend and another roommate corroborated this testimony, and Hin Hall, defendant\u2019s brother and also a roommate, testified defendant went to bed that morning between 1:30 and 2:00 a.m. Defendant stipulated that he had pleaded guilty to the 17 August 1994 robbery of a Fayetteville Burger King.\nOn 5 August 1997, the jury found defendant guilty of attempted armed robbery and first-degree murder on the theory of felony murder. The trial court arrested judgment on the armed robbery charge and sentenced defendant to life imprisonment in the murder case. Defendant timely appealed.\nInitially, we note defendant\u2019s appellate brief includes no argument addressed to assignments of error one, two, three, four, six, seven, thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-three, twenty-four, twenty-five, or twenty-six. Accordingly these assignments of error are deemed abandoned, see N.C.R. App. P. 28(b)(5) (\u201c[assignments of error not set out in the appellant\u2019s brief. . . will be taken as abandoned\u201d), and we do not address them.\nIn his first assignment of error, defendant contends Harold\u2019s in-court identification was hypnotically refreshed evidence and admission thereof violated our Supreme Court\u2019s decision in State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984). We conclude otherwise.\nPeoples held that hypnotically refreshed testimony is \u201cinadmissible in judicial proceedings\u201d because it is subject to suggestive circumstances rendering it \u201cinherently unreliable.\u201d Id. at 533, 319 S.E.2d at 188. However, \u201c[a] person who has been hypnotized may testify as to facts which he related before the hypnotic session.\u201d Id.\nIn the case sub judice, the trial court conducted a comprehensive voir dire hearing during which Harold stated the hypnosis had no effect on her memory of the assailant\u2019s side profile, and that she recognized defendant based upon her observations the night of the murder. She related that the parking lot on the night of the murder was well lighted, that she had a clear view of the assailant\u2019s side profile from a distance of six to seven feet, and that she recognized defendant as the assailant when she saw his side view for the first time in the courtroom.\nThe trial court rendered extensive findings of fact, which are conclusive on appeal if supported by competent evidence. State v. Miller, 69 N.C. App. 392, 397, 317 S.E.2d 84, 88 (1984). The court noted Harold testified there were no suggestions during the hypnotic sessions \u201cin any way for her to pick out or identify\u201d any individual, and found as fact inter alia that: 1) the Blockbuster parking lot was sufficiently lighted to permit Lohbeck to view Harold\u2019s photograph album, 2) Harold observed the assailant\u2019s side profile at a distance of six to seven feet, 3) Lohbeck and the assailant faced each other giving Harold a clear unobstructed view of the assailant\u2019s side profile, 4) Harold viewed numerous photographs of suspects and had seen defendant on television months prior to trial, but refused to identify anyone as the assailant based on her need to view a side profile for a positive identification, 5) that Harold \u201chad not seen a side view of the defendant until she saw him in court\u201d on 28 July 1997, at which time she notified a witness coordinator that defendant was the person who shot Lohbeck, and 6) that Harold\u2019s description of the assailant remained essentially identical before and after hypnosis. Further, the court acknowledged that additional description details, i.e., small eyes, flat nose, and well defined lips, surfaced during hypnosis, but concluded the hypnosis did not affect Harold\u2019s overall description which remained \u201csubstantially the same,\u201d and that Harold\u2019s identification of defendant\nwas of an independent origin and not tainted by any hypnotic sessions or anything else that any law enforcement officers . . . had done in this matter.\nWe believe the trial court properly analyzed the evidence before it. Significantly, the only portion of Harold\u2019s testimony which might accurately be characterized as \u201chypnotically refreshed\u201d was that containing the minimal descriptive details and not her in-court identification of defendant. The trial court\u2019s determination that Harold\u2019s identification was based upon her observations the night of the murder and related immediately to police well before hypnosis, see Harker v. State of Md., 800 F.2d 437, 443 (4th Cir. 1986) (description of assailant by witness under hypnosis \u201cclosely matched the description he had given to police shortly after the shooting\u201d), and that it was \u201cnot tainted\u201d by her subsequent hypnotic sessions, is uncontradicted by any evidence in the record. Hence Harold\u2019s identification of defendant as Lohbeck\u2019s killer at trial 1) was of \u201cindependent origin,\u201d Miller, 69 N.C. App. at 396, 317 S.E.2d at 88, 2) was unaffected by the intervening circumstance of hypnosis, and 3) did not constitute \u201chypnotically refreshed\u201d testimony. Therefore, Peoples is inapposite to that portion of Harold\u2019s testimony.\nOn the other hand, Harold\u2019s in-court testimony regarding \u201chypnotically refreshed\u201d descriptive details of the assailant and the State\u2019s failure to disclose the hypnosis of Harold prior to her testimony were improper under Peoples. See Peoples, 311 N.C. at 533-34, 319 S.E.2d at 188 (\u201chypnotically refreshed testimony is inadmissible injudicial proceedings,\u201d and \u201cparty proffering the testimony of a previously hypnotized subject is under a duty to disclose the fact of th[e] hypnosis to the court and counsel. . . before the testimony of the witness\u201d).\nHowever, the tardy disclosure of Harold\u2019s hypnosis is mitigated by the circumstances that disclosure came 1) prior to Harold\u2019s identification testimony and the comprehensive voir dire hearing on admissibility thereof, and 2) immediately upon discovery of Harold\u2019s hypnosis by the prosecutor, see N.C.G.S. \u00a7 15A-907 (1997) (if party \u201cprior to or during trial\u201d discovers additional evidence subject to disclosure, party \u201cmust promptly notify the attorney for the other party of the existence of the additional evidence\u201d).\nNonetheless, the belated discovery by the prosecutor of law enforcement\u2019s hypnosis of Harold and the, at best, negligent failure of the police to apprize the prosecutor of the hypnosis and to retain tapes of the sessions, necessitate reiteration here of the caution to \u201cthose who use hypnosis [that] it is a procedure to be executed with care,\u201d Peoples, 311 N.C. at 534, 319 S.E.2d at 188, and that the \u201cprocedural safeguards\u201d noted in Peoples should \u201cbe followed in the use of hypnosis for criminal investigative purposes,\u201d id.\nAs to admission of hypnotically refreshed testimony by Harold of certain descriptive features of the assailant, we first note again the trial court\u2019s finding, supported by the record and conclusive on appeal, Miller, 69 N.C. App. at 397, 317 S.E.2d at 88, that her description remained \u201cessentially the same\u201d prior to and following hypnosis, see Harker, 800 F.2d at 443. Moreover, discrepancies in descriptions are ordinarily for the jury to hear and consider in weighing the credibility of the witness. See State v. Billups, 301 N.C. 607, 616, 272 S.E.2d 842, 849 (1981).\nIn any event, such error as may have occurred in consequence of the foregoing contraventions of Peoples was harmless error which created no \u201creasonable possibility\u201d the jury verdict would have been different had Harold\u2019s additional description testimony been excluded. See N.C.G.S. \u00a7 15A-1443(a) (1997) (in order for error to be prejudicial, there must be a \u201creasonable possibility that, had the error in question not been committed, a different result would have been reached\u201d); see also State v. Annadale, 329 N.C. 557, 571, 406 S.E.2d 837, 845 (1991) (harmless error analysis applied to in-court identification following hypnosis).\nFirst, we reiterate our holding that Harold\u2019s in-court identification of defendant as Lohbeck\u2019s killer did not constitute \u201chypnotically refreshed\u201d testimony. In addition to Harold\u2019s designation of defendant as the perpetrator, moreover, the State introduced evidence of defendant\u2019s confessions to his friend and roommate Brown and to a fellow prisoner, William Johnson, as well as testimony by the victim identifying defendant as participant in another robbery which Brown testified he and defendant had committed together. In light of the overwhelming weight of this evidence, any error resulting from belated disclosure of Harold\u2019s hypnosis or in admitting her testimony concerning additional descriptive details regarding the assailant which surfaced during hypnosis was harmless. See id.\nDefendant next asserts the trial court erred by denying his motion to suppress in-court identification testimony by Sandra Jacobs (Jacobs) of defendant as participant in the robbery of a Burger King in Fuquay-Varina. This assignment of error is unfounded.\nInitially, we note defendant argued different grounds for his motion at trial than those presented to this Court. Defendant asserted below that his identification by Jacobs resulted from impermissibly suggestive circumstances, specifically that Jacobs\nhas been sitting in [the courtroom] and . . . defendant is seated at counsel table and has been identified as the defendant in this case. . . .\nOur Supreme Court has held\nthe viewing of a defendant in the courtroom during ... a criminal proceeding by witnesses who are offered to testify as to identification of the defendant is not, of itself, such a confrontation as will taint an in-court identification ....\nState v. Covington, 290 N.C. 313, 324, 226 S.E.2d 629, 638 (1976). After a voir dire hearing, the trial court concluded that \u201cidentification [of defendant by Jacobs] was not tainted by . . . the fact that she was here after lunch today and observed the defendant in open court.\u201d Based upon the principles set out in Covington and our determination that the facts found by the trial court were supported by the evidence and thus conclusive on appeal, Miller, 69 N.C. App. at 397, 317 S.E.2d at 88, we hold the court properly rejected defendant\u2019s motion to suppress the identification testimony of Jacobs.\nDefendant now argues to this Court that Jacobs had no reasonable possibility of observing the robber in a manner sufficient to make a subsequent identification. Because this argument was not advanced at trial, it has not been preserved for appellate review. N.C.R. App. P. Rule 10(b) (\u201cto preserve a question for appellate review, a party must have presented to the trial court a timely .. . motion, stating the specific grounds for the ruling the party desired ... .\u201d); State v. Waddell, 130 N.C. App. 488, 503, 504 S.E.2d 84, 93 (1998) (citations omitted) (where theory argued on appeal not raised in trial court, \u201cthe law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\u201d).\nNotwithstanding, we have considered the record in light of defendant\u2019s new argument. See N.C.R. App. P. Rule 2. Suffice it to state the trial court\u2019s findings were supported by the evidence adduced at the hearing, see Miller, 69 N.C. App. at 397, 317 S.E.2d at 88, and that the court did not err in admitting the identification of defendant by Jacobs as perpetrator of the Burger King robbery. See Manson v. Brathwaite, 432 U.S. 98, 116, 53 L. Ed. 2d 140, 155 (1977) (excluding evidence from jury is drastic sanction limited to manifestly suspect identification testimony; anything short of that is \u201cfor the jury to weigh ... [in that] evidence with some element of untrust-worthiness is customary grist for the jury mill\u201d).\nDefendant next challenges the admission of Brown\u2019s testimony that he and defendant robbed Burger King restaurants in Fuquay-Varina and Raleigh. Defendant argues the State\u2019s N.C.G.S. \u00a7 8C-1, Rule 404(b) (Supp. 1998) (Rule 404(b)), \u201cother crimes\u201d evidence of defendant\u2019s prior misconduct was inadmissible, and in any event cumulative and prejudicial such that it should have been excluded under N.C.G.S. \u00a7 8C-1, Rule 403 (1992) (Rule 403). We do not agree.\nWhile evidence of prior misconduct may not be introduced if\nits probative value is . . . limited solely to tending to establish the defendant\u2019s propensity to commit a crime such as the crime charged,\nState v. Stager, 329 N.C. 278, 303-04, 406 S.E.2d 876, 890 (1991) (emphasis in original), it may be admitted if it 1) constitutes \u201csubstantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime,\u201d id. at 303, 406 S.E.2d at 890, 2) is \u201cof a type made admissible under [Rule 404(b)],\u201d id., such as to show the defendant\u2019s \u201cmotive, opportunity, intent, preparation, plan, knowledge, [or] identity,\u201d Rule 404(b), and 3) is \u201clogically] relevanft],\u201d 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 95 (5th ed. 1998) [hereinafter Brandis & Broun], \u201cfor some purpose other than showing the defendant\u2019s propensity for the type of conduct at issue, Stager, 329 N.C. at 303, 406 S.E.2d at 890. Moreover, the listing of \u201cproper purpose[s]\u201d under Rule 404(b) is not exclusive. 1 Brandis & Broun \u00a7 95.\nIn addition, our Supreme Court has emphasized that Rule 404(b) is a \u201cgeneral rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant,\u201d State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original); nonetheless, such evidence must involve facts sufficiently similar to those of the charged offense which tend to support a reasonable inference they were committed by the same person, Stager, 329 N.C. at 303, 406 S.E.2d at 890, and the probative value thereof must not be substantially outweighed by its prejudicial effect, G.S. \u00a7 8C-1, Rule 403; State v. Boczkowski, 130 N.C. App. 702, 706, 504 S.E.2d 796, 799 (1998).\nOn voir dire, Brown testified he and defendant robbed a Raleigh Burger King on 14 May 1994 and a Fuquay-Varina Burger King on 22 February 1994, and described the circumstances surrounding each robbery. Brown\u2019s testimony was later corroborated by the Burger King employees who were robbed, including Jacobs who identified defendant as one of the robbers and whose testimony itself was later corroborated by Brown\u2019s identification of her as a robbery victim.\nIn its findings, the trial court noted inter alia that Brown and defendant were roommates, that defendant told Brown the morning of the murder he had shot a Blockbuster employee in a robbery attempt and that defendant owned a handgun and sawed-off shotgun during the time period in which the Burger King robberies occurred. The court recited certain similarities between the Blockbuster murder and the Burger King robberies, indicating that 1) each had occurred in the dark early morning hours while the affected commercial establishment was empty and closed, 2) defendant waited in the darkness and then, armed with a firearm, forced or attempted to force an employee into the establishment in order to rob it, 3) all three crimes occurred in Wake County within a four month period, 4) the establishments closed late or opened early, and 5) all were robbed pursuant to a plan.\nFollowing recitation of its detailed findings of fact, the trial court ruled evidence of the Burger King robberies was relevant and admissible under Rule 404(b) because similar to the crime charged at trial and indicative of defendant\u2019s intent, motive and plan to commit armed robbery at the time of Lohbeck\u2019s murder. The court also held under Rule 403 that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Finally, the court instructed the jury both prior to Brown\u2019s testimony and at the close of all evidence to consider the evidence, \u201cif [it] believe [d] th[e] evidence,\u201d solely for the limited purpose of showing defendant\u2019s motive, intent or plan.\nBased upon the record and the trial court\u2019s conclusive findings of fact, see Miller, 69 N.C. App. at 397, 317 S.E.2d at 88, we hold the court did not err in allowing evidence of defendant\u2019s participation in the Burger King robberies. Further, the exclusion of evidence under Rule 403 is a matter left to the sound discretion of the trial court. Coffey, 326 N.C. at 281, 389 S.E.2d at 56. We do not believe defendant has demonstrated an abuse of discretion and therefore decline to disturb the trial court\u2019s ruling on appeal. See State v. Robinson, 327 N.C. 346, 356-57, 395 S.E.2d 402, 408 (1990), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995) (abuse of discretion only where ruling is manifestly unsupported by reason).\nNotwithstanding, defendant insists that \u201c[ojverall, the [Rule 404(b)] evidence was cumulative and emotional\u201d and presented to inflame the jury. Again we disagree.\nThe admission of relevant evidence is left to the sound discretion of the trial court, Stager, 329 N.C. at 308, 406 S.E.2d at 893, and that discretionary ruling will be reversed on appeal \u201conly upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision,\u201d State v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997).\nThe trial court sub judice properly allowed evidence under Rule 404(b) either to corroborate the accounts of other witnesses or for the purpose of showing defendant\u2019s motive, intent or plan to commit the instant crime. In addition, the court properly instructed the jury prior to and after presentation of the evidence specifically limiting the jury\u2019s consideration thereof. Under these circumstances, admission of this evidence cannot fairly be characterized as arbitrary and unreasonable, see id., and thus was not error.\nFinally, defendant maintains the trial court committed prejudicial error by allowing \u201cimproper and highly prejudicial cross-examination of defendant,\u201d including inquires involving a stolen credit card, the Fuquay-Varina and Raleigh Burger King robberies, and the robbery of a Fayetteville Burger King to which defendant pleaded guilty. We have carefully considered defendant\u2019s arguments, note that the scope of cross-examination is a matter within the sound discretion of the trial court, State v. Bronson, 333 N.C. 67, 79, 423 S.E.2d 772, 779 (1992), and conclude the court committed no prejudicial error in allowing the challenged cross-examination. See G.S. \u00a7 15A-1443(a).\nNo error.\nJudges GREENE and HUNTER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VINCENT TAN HALL, Defendant\nNo. COA98-525\n(Filed 3 August 1999)\n1. Evidence\u2014 identification \u2014 in-conrt\u2014hypnosis\u2014essen-tially identical description before and after\nThe trial court did not err in allowing the witness\u2019 in-court identification of defendant because even though the witness had been hypnotized by the police, her description of the assailant remained essentially identical before and after hypnosis. The witness\u2019 identification was based on her observations the night of the murder and attempted robbery, and was related immediately to police well before hypnosis. The only portion of the witness\u2019 testimony which might be considered \u201chypnotically refreshed\u201d was that containing the minimal descriptive details and not her in-court identification of defendant.\n2. Evidence\u2014 identification \u2014 in-court\u2014hypnotically refreshed descriptive details \u2014 failure to disclose hypnosis prior to testimony \u2014 harmless error\nAlthough a witness\u2019 in-court testimony regarding \u201chypnotically refreshed\u201d descriptive details of the assailant and the State\u2019s failure to disclose the hypnosis prior to the witness\u2019 testimony were improper, the tardy disclosure is mitigated because the disclosure was: (1) prior to the witness\u2019 identification testimony and the comprehensive voir dire hearing on admissibility thereof, and (2) immediately upon the prosecutor\u2019s discovery of the witness\u2019 hypnosis. Further, it was harmless error because there was no reasonable possibility that the jury verdict would have been different had the additional descriptive testimony been excluded in light of other evidence including defendant\u2019s confessions to his friend and to a fellow prisoner.\n3. Evidence\u2014 identification \u2014 in-court\u2014viewing defendant at trial\nThe trial court properly denied defendant\u2019s request to suppress a witness\u2019 identification of defendant at trial as a participant in another robbery because the identification was not tainted by the fact that the witness observed defendant in open court.\n4. Evidence\u2014 prior crime or act \u2014 other robberies \u2014 corroboration \u2014 intent, motive, and plan\nThe trial court did not err in admitting evidence of other robberies involving defendant because it was relevant and admissible under Rule 404(b) either to corroborate the accounts of other witnesses or to show defendant\u2019s intent, motive, and plan to commit armed robbery at the time of the victim\u2019s murder.\n5. Witnesses\u2014 cross-examination \u2014 discretion of trial court\nThe trial court did not err in allowing cross-examination of defendant including inquiries involving a stolen credit card and other robberies because the scope of cross-examination is a matter within the sound discretion of the trial court.\nAppeal by defendant from judgment entered 5 August 1997 by Judge J.B. Allen Jr. in Wake County Superior Court. Heard in the Court of Appeals 26 January 1999.\nAttorney General Michael F Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant." }, "file_name": "0417-01", "first_page_order": 449, "last_page_order": 459 }