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Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "488 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "346 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139375 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "313" }, { "page": "328-29" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0291-01" ] }, { "cite": "451 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "338 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518881 ], "year": 1994, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0315-01" ] }, { "cite": "448 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787611 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "45" }, { "page": "589" }, { "page": "50" }, { "page": "593", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/448/0038-01" ] }, { "cite": "469 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959771 ], "weight": 8, "year": 1985, "pin_cites": [ { "page": "424", "parenthetical": "quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)" }, { "page": "851-52", "parenthetical": "quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)" }, { "page": "424" }, { "page": "852" }, { "page": "424-26" }, { "page": "852-53", "parenthetical": "footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/us/469/0412-01" ] }, { "cite": "500 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659826 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0548-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] } ], "analysis": { "cardinality": 1769, "char_count": 66004, "ocr_confidence": 0.768, "pagerank": { "raw": 2.1347325454218218e-07, "percentile": 0.7662927452527155 }, "sha256": "097dc18cd766faf024a0c2a9c30963f20681a97bae5b794d4a262db4c126bb7b", "simhash": "1:8763d132166a8e7a", "word_count": 10847 }, "last_updated": "2023-07-14T15:15:14.712587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Wynn did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNATHON GREGORY HOFFMAN" ], "opinions": [ { "text": "WHICHARD, Justice.\nOn 22 January 1996 defendant was indicted for robbery with a dangerous weapon and the first-degree murder of Danny Cook, both occurring on 27 November 1995. Defendant was tried capitally, and the jury returned verdicts finding him guilty of robbery with a firearm and first-degree murder based on premeditation and deliberation as well as the felony murder rule. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death. The trial court sentenced defendant accordingly, and further sentenced him to 101 to 131 months\u2019 imprisonment for the robbery with a dangerous weapon conviction. Defendant appealed the first-degree murder conviction to this Court, and we allowed defendant\u2019s motion to bypass the Court of Appeals on the robbery with a dangerous weapon conviction.\nIn an opinion filed 9 July 1998, this Court remanded the case to the Superior Court, Union County, for a hearing as to whether defendant\u2019s jury had been selected contrary to the equal protection principles set forth in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). State v. Hoffman, 348 N.C. 548, 500 S.E.2d 718 (1998). A hearing was held, and an order was entered on 24 August 1998. The trial court concluded that the State had offered valid, race-neutral explanations for its peremptory challenges of prospective jurors James Rorie and Lori Brace and that defendant had failed to meet his ultimate burden of proof of showing purposeful racial discrimination in the challenging of these prospective jurors. The transcript contains evidence that supports the trial court\u2019s findings, and the findings in turn support its conclusions. This assignment of error is therefore overruled, and the case is before this Court for review of defendant\u2019s remaining assignments of error.\nThe evidence presented at trial tended to show that between 3:30 and 4:00 p.m. on 27 November 1995, defendant entered a jewelry store in Marshville, North Carolina, wearing a ski mask and carrying a sawed-off shotgun. Danny Cook, the victim, was behind the store\u2019s display counter when he saw defendant enter. Defendant shot the victim in the chest from a distance of about three feet. Defendant then broke three glass display cases and took various items of jewelry, including some gold rings and necklaces. Defendant also stole two pistols.\nIn defendant\u2019s first assignment of error, he contends that prospective juror Josephine McLemire was improperly excused for cause. Defendant argues that while McLemire may have shown some opposition to the death penalty, she did not demonstrate sufficient opposition to warrant a for-cause removal.\nThe standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is \u201cwhether the juror\u2019s views would \u2018prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.\u2019 \u201d Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589 (1980)). When McLemire was first asked about her ability to return a guilty verdict knowing that death was a possible sentence, she said she did not know whether she could return such a verdict. After time to think about the question, McLemire said she could \u201cfairly consider death as a possible sentence in this case.\u201d Before defendant finished questioning the prospective jurors in McLemire\u2019s panel, the court excused the prospective jurors and adjourned for the day. Defendant continued his questioning of these jurors the next day. When defendant asked McLemire how long she had held her belief in the death penalty, she replied, \u201cWell, I really don\u2019t believe in it. I slept on it last night and I\u2019m still undecided.\u201d Upon further questioning by the trial court, McLemire stated that she could not consider the death penalty as an appropriate punishment. She further stated that she would find herself to be substantially impaired in her ability to perform her duties as a juror. In response to questioning by the State, she again stated that if her duty as a juror required her to sentence defendant to death, she would be substantially impaired in performing her duty.\nAt that point the State challenged McLemire for cause. The trial court allowed defendant\u2019s request to question her further. Defendant asked her whether she believed in the death penalty. She said she did not. McLemire then told defendant she could apply the law to the case without her personal beliefs substantially impairing her ability to follow the law. The trial court then asked, \u201cBut you still couldn\u2019t come back and consider a death penalty as one of the appropriate punishments in the case?\u201d McLemire replied that she could not. The trial court continued its questioning. She told the trial court that her views on the death penalty would not substantially impair her ability to perform her duties as a juror. She also told the trial court that her views on the death penalty would not interfere with her ability to consider both possible punishments and that, in spite of her views, she could return a sentence of death against defendant. At this point the trial court allowed the State\u2019s for-cause challenge, agreeing that her answers were \u201cobviously equivocal.\u201d\nDefendant argues that McLemire should not have been excused for cause because while her answers revealed that she had reservations about the death penalty, she also stated that these views would not impair her ability to consider that penalty in this case. In support of his argument, defendant cites the following:\n[T]he Constitution [does not] permit the exclusion of jurors from the penalty phase of a . . . murder trial if they aver that they will honestly find the facts and answer the [capital sentencing] questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.\nAdams v. Texas, 448 U.S. at 50, 65 L. Ed. 2d at 593 (emphasis added). Defendant argues that McLemire falls into the above class of prospective jurors and that she therefore was improperly excused for cause.\nFive years after Adams, the United States Supreme Court decided Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, in which it made it clear that a prospective juror\u2019s bias does not have to be proven with \u201cunmistakable clarity\u201d in order to justify a for-cause removal. Id. at 424, 83 L. Ed. 2d at 852.\nThis is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made \u201cunmistakably clear\u201d; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror.\nId. at 424-26, 83 L. Ed. 2d at 852-53 (footnote omitted). This Court has likewise held that the granting of a challenge for cause based on a prospective juror\u2019s unfitness is a matter within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Abraham, 338 N.C. 315, 343, 451 S.E.2d 131, 145 (1994).\nMcLemire stated on numerous occasions that she did not believe in the death penalty and that her views would substantially impair the performance of her duties as a juror. The trial court had to decide whether a number of contradictory responses by this prospective juror were sufficient to defeat the State\u2019s for-cause challenge. After watching and listening to this prospective juror, the trial court concluded that McLemire\u2019s answers during voir dire provided a sufficient basis to allow the State\u2019s for-cause challenge. We cannot conclude that the trial court abused its discretion.\nDefendant also argues that he should have been allowed to question McLemire again before she was excused for cause. We have stated that \u201c[i]t is not an abuse of discretion for the trial court to deny defendant an attempt to rehabilitate a juror unless defendant can show that further questions would have produced different answers by the juror.\u201d State v. Cummings, 346 N.C. 291, 313, 488 S.E.2d 550, 563 (1997), cert. denied, \u2014 U.S. \u2014, 139 L. Ed. 2d 873 (1998). The trial court had already allowed defendant one attempt to rehabilitate this prospective juror. Defendant has not shown that additional questioning of McLemire would likely have produced different results. This assignment of error is overruled.\nDefendant next contends that juror Howard Setzer, a Charlotte police officer, should have been excused for cause. Setzer stated that he had heard about defendant\u2019s case briefly in the course of his employment but had not formed an opinion about it. Upon questioning by defendant, Setzer stated that he would tend to find \u201can officer to be a more credible witness simply based on the fact that he\u2019s an officer, as opposed to any other witness.\u201d Defendant argues that Setzer\u2019s response shows that he could not be an impartial juror and thus should have been excused for cause. However, defendant did not make a for-cause challenge of Setzer at this point in the voir dire. Further, at no point during jury selection did defendant assert this argument as a basis for his for-cause challenge. Instead, defendant continued questioning Setzer about his experience as a police officer. Finally, defendant asked him, \u201cMr. Setzer, honestly, wouldn\u2019t it be a problem for you to sit in a case like this? ... A problem in being totally \u2014 totally fair, totally impartial, totally unbiased against a defendant in a case?\u201d Setzer responded, \u201cI could follow the law in this case and I could do my duty as a juror.\u201d\nIt was not until after a recess that defendant made his for-cause challenge of Setzer. During this recess Setzer was seen talking to a deputy sheriff who was operating a metal detector. Two other members of the panel, Ann Keziah and Tracy Johnson, were also seen conversing with two police officers. It was at this point, and in light of these observations, that defendant challenged all three prospective jurors, Setzer, Keziah, and Johnson, for cause. After an inquiry into the matter, the trial court determined that Setzer had been talking with the deputy sheriff about a new security device and that defendant had not shown sufficient reason to excuse him for cause.\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides: \u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d On appeal to this Court, defendant is arguing completely different grounds in support of his for-cause challenge of Setzer than he argued to the trial court. The trial court had no opportunity to consider defendant\u2019s for-cause challenge in the terms in which he now presents it. Defendant thus did not properly preserve this assignment of error for appellate review, and it is overruled.\nDefendant next contends that the trial court erred when it failed to excuse prospective juror Ann Keziah for cause. During the recess mentioned above, prospective jurors Ann Keziah and Tracy Johnson were seen conversing with two police officers in a break room. Defense counsel overhead one of the officers say, \u201cI said, \u2018That\u2019s awesome, Pops. A [sic] least we have one juror that will vote to convict.\u2019 \u201d When defense counsel informed the trial court of this incident, the court ordered the officers summoned to the courtroom and conducted an inquiry into the matter.\nOfficer Rigoli explained that he was telling a story about a time when his father was called for jury duty and he had a case in court. Officer Rigoli told the court:\nI was telling her about telling my dad, he got called up, and I had a case coming up and he couldn\u2019t get off the jury duty. And so he ended up getting put on jury duty. And I said, \u201cWell, Pop\u201d, I said, \u201cIf I come up and you got one of my cases, you know, I may end up looking like an idiot, because I\u2019m just a dumb poor boy from the country, and, heck fire, if my own dad won\u2019t vote for me, then I need to drop back in something and be a meter reader or something.\nOfficer Rigoli said that he had not discussed defendant\u2019s case with prospective juror Keziah.\nThe trial court then questioned Keziah. She said that she had not discussed defendant\u2019s case with the officers and that she had not been influenced in any way with regard to defendant\u2019s case during the conversation. The trial court next questioned prospective juror Johnson. She said that she had not been a part of the conversation in the break room and that she had heard nothing which would have influenced her with regard to defendant\u2019s case. After talking with these individuals, the trial court was satisfied that Keziah and Johnson could be fair and impartial. It therefore denied defendant\u2019s for-cause challenges.\nDefendant argues that this was error with regard to Keziah. Defendant notes inconsistencies between the accounts of what happened given by Officer Rigoli and prospective jurors Keziah and Johnson. Officer Rigoli testified that he had not known that Keziah was on the jury when he related the story about his father, while both Keziah and Johnson stated that they believed Officer Rigoli knew Keziah was on the jury at the time. Also, Keziah said that she did not remember laughter, while both Officer Rigoli and prospective juror Johnson reported that there had been laughter in response to what was said. Defendant argues that the trial court ended its inquiry into the matter too quickly and that\nit is entirely possible that the officers talked to a potential juror about the defendant\u2019s case knowing that she was a juror and intending to encourage her, subtly or otherwise, to vote to convict a defendant on trial for the murder of a citizen of the county in which they worked.\nWe have stated that \u201c[w]hen there is substantial reason to fear that the jury has become aware of improper and prejudicial matters, the trial court must question the jury as to whether such exposure has occurred and, if so, whether the exposure was prejudicial.\u201d State v. Black, 328 N.C. 191, 196, 400 S.E.2d 398, 401 (1991). That is precisely what the trial court did. It is also well settled that rulings on challenges for cause are matters in the discretion of the trial court and will not be overturned on appeal absent a showing of an abuse of discretion. State v. Quick, 329 N.C. 1, 17, 405 S.E.2d 179, 189 (1991). We give deference to the ruling of the trial court because it \u201chas the opportunity to see and hear a juror and has the discretion, based on its observations and sound judgment, to determine whether a juror can be fair and impartial.\u201d State v. Dickens, 346 N.C. 26, 42, 484 S.E.2d 553, 561 (1997).\nThe trial court in this case was in the best position to observe the demeanor of these witnesses as they gave their sworn testimony. It did not abuse its discretion. This assignment of error is overruled.\nDefendant next contends that the trial court erred by sustaining one of the State\u2019s objections during defendant\u2019s cross-examination of Donald Pearson. Pearson provided several pieces of corroborating testimony for the State. He testified that he had seen defendant\u2019s sawed-off shotgun in his father\u2019s bedroom days before the shooting. This corroborated the testimony of Pearson\u2019s father, Willie Pearson, that defendant had stored the gun at his house and had retrieved it from his bedroom on the morning of the crime. Donald Pearson also testified that he saw defendant at his father\u2019s house on the afternoon of the murder, that defendant was placing jewelry in a green bag, and that his father told him defendant had robbed a jewelry store. This also corroborated Willie Pearson\u2019s testimony.\nDuring defendant\u2019s cross-examination of Donald Pearson, defendant asked, \u201c[W]hat other offenses \u2014 what other record do you have?\u201d Pearson answered, \u201cBasically that\u2019s it except I\u2019m being accused for a B and E.\u201d After questioning Pearson about another offense, defendant asked, \u201cThe, uh \u2014 you have a pending breaking and entering, is that right?\u201d At this point the State objected. The trial court sustained the objection. Defendant argues this was a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. We agree.\nIn Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347 (1974), the United States Supreme Court addressed a similar situation in which the principal witness against the defendant was on probation. The defendant was not allowed to cross-examine the witness about his probationary status. Id. at 310-11, 39 L. Ed. 2d at 350-51. The Court held that this limitation on cross-examination was a violation of the defendant\u2019s Sixth Amendment right \u201cto be confronted with the witnesses against him.\u201d Id. at 315, 39 L. Ed. 2d at 353. The Court reasoned that \u201c[t]he claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green\u2019s vulnerable status as a probationer as well as of Green\u2019s possible concern that he might be a suspect in the investigation.\u201d Id. at 317-18, 39 L. Ed. 2d at 354 (citation omitted). The Court concluded that the defendant was thus denied the right of effective cross-examination and that this was constitutional error that no showing of want of prejudice could cure. Id. at 318, 39 L. Ed. 2d at 355.\nThis Court has applied Davis in a situation similar to the case at bar. In State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377 (1997), we held that the trial court erred when it did not allow the defendant to cross-examine the State\u2019s principal witness regarding nine pending charges of forgery and uttering forged checks. Id. at 163-64, 484 S.E.2d at 378. Likewise, we hold that the trial court here erred by not allowing defendant to cross-examine Pearson regarding his pending charges for breaking and entering. We conclude, however, that this error was harmless beyond a reasonable doubt.\nAs stated by the Supreme Court in Davis, the denial of the \u201cright of effective cross-examination\u201d cannot be cured by a showing of lack of prejudice. Davis, 415 U.S. at 318, 39 L. Ed. 2d at 355 (emphasis added). This rule has its roots in Brookhart v. Janis, a case in which the defendant was completely denied the opportunity to cross-examine the State\u2019s witnesses. Brookhart v. Janis, 384 U.S. 1, 2-3, 16 L. Ed. 2d 314, 316-17 (1966). Davis, however, dealt not with a total denial of cross-examination, but rather with a significant limitation on the defendant\u2019s cross-examination of the State\u2019s principal witness. The defendant in Davis was prevented from showing possible bias by inquiring into the probationary status of \u201ca crucial witness for the prosecution.\u201d Davis, 415 U.S. at 310, 39 L. Ed. 2d at 350. The Court thus concluded that the defendant had been denied the right of \u201ceffective\u201d cross-examination which could not be cured with a showing of lack of prejudice. Id. at 318, 39 L. Ed. 2d at 355.\nDefendant here was not denied the right of effective cross-examination. The witness, Donald Pearson, was not a principal witness for the State but was a corroborating witness. His minimal importance is evidenced by the fact that the prosecutor scarcely mentioned him in his closing argument. Further, even without inquiry into any pending charges, Pearson was thoroughly impeached on cross-examination. Pearson testified that prior to moving to North Carolina, he lived in New Jersey and made a living robbing drug dealers. He said he had not yet lived in North Carolina long enough to do the same here. He testified that he had been convicted of possession with intent to sell cocaine in New Jersey and North Carolina, that he had been convicted of driving while his license was revoked approximately thirty times, and that he had been convicted of giving fictitious information to an officer. He also testified that he had fired a sawed-off shotgun at a woman who insulted him and had stolen a ring from his father. Finally, Pearson was also cross-examined about several prior inconsistent statements.\nIn addition, the State presented substantial evidence of defendant\u2019s guilt aside from Pearson\u2019s testimony. Two witnesses testified that they saw defendant parked outside the victim\u2019s jewelry store just before the murder. Defendant\u2019s cousin and former partner in crime, Johnell Porter, testified that defendant had tried to get him to rob the store with him. Both Porter and Willie Pearson testified that defendant admitted the murder to them. Willie Pearson also testified that the property the officers recovered from various individuals \u2014 the jewelry, the victim\u2019s handgun, and the sawed-off shotgun \u2014 was all given to him by defendant. The robbery was also consistent with prior bank robberies which Porter testified defendant had committed with him. Finally, physical evidence from the crime scene, such as pieces of wood from the shotgun and green fabric from a gym bag, was also consistent with what Willie Pearson told the officers defendant had told him.\nIn light of the above, we conclude that although the trial court erred by not allowing defendant to cross-examine Pearson regarding his pending charges, this error was harmless beyond a reasonable doubt. This assignment of error is overruled.\nDefendant next contends that the trial court erred by sustaining one of the State\u2019s objections during defendant\u2019s direct examination of defendant\u2019s sister, Wandra Hoffman. The State presented evidence tending to show that defendant had been sitting in his white Nissan outside the victim\u2019s jewelry store on the day of the murder. Defendant attempted to prove that he had not been driving his white Nissan that day but had been driving his sister\u2019s car, a red Toyota. During defendant\u2019s direct examination of Wandra Hoffman, the following exchange took place:\nQ Tell the jury whether or not your brother was using that car [his white Nissan] on November the 29th of 1995, Wednesday.\nA No. I don\u2019t recall him having that car then.\nQ You had the car at that time?\nA I believe I did. I\u2019m not approximately for sure, but I believe I did.\nQ Well, tell the jury whether or not your brother got a ticket driving your car on November the 29th, 1995.\nA Yes, he did.\nMe. Honeycutt: Your Honor, we object on the grounds of relevancy.\nThe Couet: Sustained.\nDefendant argues this evidence was relevant because it tended to prove that the period during which defendant\u2019s sister had his car extended beyond the date of the shooting.\nAssuming arguendo that this evidence should have been admitted, defendant has failed to show prejudice. To show prejudice, a defendant must establish that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a) (1997). As described in the preceding issue, the State presented substantial evidence tending to show defendant\u2019s guilt. Further, testimony that defendant had his sister\u2019s car on 29 November would not necessarily negate the fact that he was driving his own car two days earlier when the murder was committed. It is equally plausible that if defendant had his sister\u2019s car on 29 November, he borrowed it after 27 November so he would not be seen driving the car he had used to commit his crimes on 27 November. Finally, the value of Wandra Hoffman\u2019s testimony was diminished substantially on cross-examination. She admitted that she had never told a law enforcement officer that she had defendant\u2019s white car on the day of the murder. She was also unsure of basic features of the car, such as whether it had an automatic or manual transmission, although she said she drove it for several weeks. For these reasons, there is no reasonable possibility that a different result would have been reached had the State\u2019s objection not been sustained. This assignment of error is overruled.\nDefendant next contends the trial court erred by allowing the State to present evidence of defendant\u2019s prior crimes. Defendant\u2019s cousin, Johnell Porter, testified that defendant had participated in two bank robberies with him during the two months preceding the crimes at issue. Defendant argues this evidence should have been excluded pursuant to Rule 404(b) because it was probative only of defendant\u2019s propensity to commit robberies.\nRule 404(b) provides:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C.G.S. \u00a7 8C-1, Rule 404(b) (Supp. 1997). This Court has stated:\nRule 404(b) state [s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\nState v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).\nThe trial court conducted a voir dire on the State\u2019s proffered evidence of defendant\u2019s past crimes. It concluded that the evidence was admissible for the purpose of establishing identity and that its probative value was not substantially outweighed by the danger of unfair prejudice. The trial court instructed the jury, both at the time the evidence was admitted and in its charge, that the evidence was relevant only to the question of identity.\nWe have stated as to the use of other-crimes evidence to prove identity:\nThe other crime may be offered on the issue of defendant\u2019s identity as the perpetrator when the modus operandi of that crime and the crime for which defendant is being tried are similar enough to make it likely that the same person committed both crimes. State v. Moore, 309 N.C. 102, 305 S.E.2d 542 (1983). This theory of admissibility requires \u201csome unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes.\u201d Id. at 106, 305 S.E.2d at 545.\nState v. Carter, 338 N.C. 569, 588, 451 S.E.2d 157, 167 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263 (1995). Porter testified that in both of the prior robberies, defendant drove his white Nissan and provided Porter with a sawed-off shotgun and a dark-blue ski mask. Defendant waited in the car while Porter and another man robbed the banks, and then defendant drove his two companions from the banks.\nThere are obvious similarities between these bank robberies and the crimes at issue here. Defendant drove his white Nissan in the bank robberies, while here a white Nissan was seen outside the jewelry store on the day of the murder. Defendant\u2019s sawed-off shotgun and ski mask were used in the bank robberies, and the perpetrator here wore a ski mask and carried a sawed-off shotgun. The banks and the jewelry store were all located in small towns surrounding Charlotte. Finally, all of the establishments were robbed during the daytime when they were open for business. The trial court properly concluded that Rule 404(b) did not preclude admission of this evidence for the purpose of proving the identity of the perpetrator of these crimes.\nDefendant argues further that this evidence should have been excluded pursuant to Rule 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. N.C.G.S. \u00a7 8C-1, Rule 403 (1992). \u201cWhether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court... . Evidence which is probative of the State\u2019s case necessarily will have a prejudicial effect upon the defendant; the question is one of degree.\u201d Coffey, 326 N.C. at 281, 389 S.E.2d at 56 (citations omitted). The trial court did not abuse its discretion by admitting this evidence and limiting the jury\u2019s consideration of it to the question of identity. This assignment of error is overruled.\nDefendant next contends that the trial court erred by allowing the prosecutor to make several improper and prejudicial statements to the jury during his closing argument in the guilt-innocence phase. First, defendant complains that the State improperly argued that defendant should have to bear the burden of persuading the jury that the evidence did not establish malice. The prosecutor argued:\nThe judge is going to instruct you about malice. He\u2019s going to tell you that malice is that condition of the mind in part \u2014 that condition of the mind that prompts a person to take the life of another intentionally without just cause, excuse or justification. Members of the jury, \u201cit was him or me\u201d, what this defendant said, \u201cHim or me.\u201d There is no just cause, there is no excuse, or there is no justification in this case. Make them tell you where it is.\nThe trial court overruled defendant\u2019s objection to this argument. Defendant contends this was erroneous because the argument sought to remove from the State the burden of proving malice.\nAssuming arguendo that this was error, there was no prejudice to defendant. The prosecutor told the jury that the State had to prove malice. Further, the trial court properly instructed that the prosecutor had the burden of proof as to malice. This Court presumes that the jury follows the trial court\u2019s instructions. State v. Norwood, 344 N.C. 511, 537, 476 S.E.2d 349, 361 (1996), cert. denied, - U.S. -, 137 L. Ed. 2d 500 (1997). Therefore, defendant suffered no prejudice.\nDefendant next complains of the prosecutor\u2019s use of two minutes of silence to emphasize to the jury how long the victim spent bleeding on the floor before he died. Defendant contends this tactic is permissible only in sentencing-phase arguments. Defendant, however, failed to object to this portion of the prosecutor\u2019s argument. \u201cIn cases where the defendant failed to object at trial, \u2018the impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.\u2019 \u201d State v. Holden, 346 N.C. 404, 430, 488 S.E.2d 514, 528 (1997) (quoting State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979)), cert. denied, - U.S. -, 140 L. Ed. 2d 132 (1998). The prosecutor\u2019s use of two minutes of silence was not so grossly improper as to merit ex mero motu intervention by the trial court. See State v. Jones, 346 N.C. 704, 713-14, 487 S.E.2d 714, 720-21 (1997) (holding that the prosecutor\u2019s use of five minutes of silence during its guilt-innocence closing argument was not so grossly improper as to require ex mero motu intervention).\nDefendant next contends that the prosecutor improperly argued for guilt on the basis of victim impact. The prosecutor argued:\nThe greed by Hoffman\u2019s hands took Danny Cook\u2019s property. It took Danny\u2019s life. It took Danny Cook\u2019s gun. It took Danny Cook\u2019s grandfather\u2019s gun, which was never recovered. He took Danny Cook\u2019s life for a few handfuls of rings and jewelry.\nDanny Cook, ladies and gentlemen, lies out there in the cold ground.\n[Defense Counsel]: Objection.\nThe Court: Overruled.\n[Prosecutor]: He\u2019s gone forever. But forever to be remembered in the tender mercies of his mother\u2019s heart. Forever to be remembered for the loving memories of his sister.\nThat\u2019s something he\u2019s to be remembered for. He\u2019s to be remembered here by me. That\u2019s my job. He\u2019s to be remembered here by you. It is your duty to remember, ladies and gentlemen, who\u2019s on trial in this case. Who\u2019s on trial in this case. That this person sitting right here, Greg Hoffman, this is the defendant. This is the man who took Danny Cook\u2019s life and took his property. That\u2019s who\u2019s on trial.\nDefendant contends that the prosecutor\u2019s argument was inflammatory and that the trial court should have sustained his objection.\nDefendant objected when the prosecutor argued that the victim was in the \u201ccold ground.\u201d This argument was based on the undisputed evidence that the victim was dead. Defendant failed to object to the remainder of the prosecutor\u2019s argument of which he now complains. This argument, taken in context, merely reminded the jury that it was defendant, not the victim, who was on trial. There was nothing so grossly improper in this argument as to merit ex mero motu intervention by the trial court.\nFinally, defendant contends that the prosecutor argued outside the evidence. The prosecutor argued:\nHe would have you believe that the Pearson Gang conspired to plant that piece of wood under Danny Cook\u2019s body. That the Pearson Gang conspired to give that ring, that one ring out of those hundreds that we recovered, that one ring with a price tag\u2014\n[Defense Counsel]: Objection, improper statement of evidence.\nThe Court: Overruled.\n[Prosecutor]: That one ring with Danny Cook\u2019s handwriting on it.\nDefendant argues that the prosecutor implied that the State had recovered hundreds of rings, which was inaccurate. Defendant contends that, as a result, the jury would naturally have inferred that the State had more evidence of defendant\u2019s guilt which it had not introduced.\nAssuming arguendo that the prosecutor misstated the evidence as described by defendant, there is not a reasonable possibility that a different result would have been reached had the trial court sustained defendant\u2019s objection. The State presented substantial evidence of defendant\u2019s guilt. A single reference to \u201chundreds of rings\u201d that were recovered without any indication of how this evidence supported defendant\u2019s guilt could not have affected the verdict. This assignment of error is overruled.\nDefendant next contends that the trial court erroneously submitted the N.C.G.S. \u00a7 15A-2000(e)(11) aggravating circumstance during the penalty phase. This circumstance provides: \u201cThe murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which included the commission by the defendant of other crimes of violence against another person or persons.\u201d N.C.G.S. \u00a7 15A-2000(e)(11) (1997). Defendant argues that the evidence did not support this circumstance. He further argues that any evidence that could have supported this circumstance was used to support other aggravating circumstances which were submitted. Therefore, argues defendant, this evidence could not be used to support the (e)(11) circumstance without being impermissibly duplicative.\nThree aggravating circumstances were submitted to the jury: (1) N.C.G.S. \u00a7 15A-2000(e)(3), defendant was previously convicted of a violent felony; (2) N.C.G.S. \u00a7 15A-2000(e)(6), the murder was committed for pecuniary gain; and (3) N.C.G.S. \u00a7 15A-2000(e)(ll), the murder was part of a course of conduct involving other violent crimes. The jury found all three aggravating circumstances to exist. In its penalty-phase argument, the prosecutor argued that the (e)(3) circumstance was supported by defendant\u2019s convictions for two armed robberies, one occurring in Mecklenburg County in 1976 and the other occurring in South Carolina in 1983. The prosecutor argued that the (e)(6) circumstance was supported by the armed robbery of the jewelry store occurring at the time of the murder. Finally, the prosecutor argued that the (e)(ll) circumstance was supported by defendant\u2019s participation in two bank robberies in the two months preceding the crimes charged in this case.\nDefendant argues that the bank robberies were not sufficiently connected to the crimes charged in this case to support the (e)(11) course-of-conduct aggravating circumstance. Defendant argues further that there was no other evidence which could have been used to support this circumstance. We disagree.\nWe have explained the law regarding submission of the (e)(11) circumstance as follows:\nIn determining whether there is sufficient evidence to submit an aggravating circumstance to the jury, the trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving all contradictions in favor of the State. ... In determining whether the evidence tends to show that another crime and the crime for which defendant is being sentenced were part of a course of conduct, the trial court must consider a number of factors, including the temporal proximity of the events to one another, a recurrent modus operandi, and motivation by the same reasons.\nCummings, 346 N.C. at 328-29, 488 S.E.2d at 572 (citations omitted). The robbery and murder in this case occurred on 27 November 1995. The two bank robberies in which defendant participated occurred on 20 October 1995 and 18 September 1995. This span of time was not so great as to prevent the crimes from being considered part of the same course of conduct. There was also a similar modus operandi employed in the crimes. All occurred in small towns around Charlotte, North Carolina. All occurred in daylight hours while the businesses were open. The same sawed-off shotgun, green bag, ski mask, and white Nissan were used in all the crimes. Finally, all the crimes shared the same motive, pecuniary gain.\nThe evidence of defendant\u2019s participation in the two prior bank robberies was sufficient to support the course-of-conduct aggravating circumstance. We thus need not consider whether it would have been impermissibly duplicative for the jury to consider other evidence in support of this circumstance. This assignment of error is overruled.\nDefendant next contends that several portions of the State\u2019s penalty-phase argument were improper. First, defendant argues that the prosecutor improperly commented on the fact that defendant took the victim\u2019s life without the benefit of a trial. The prosecutor argued:\nNo doubt you\u2019re going to hear arguments, pleading for the life and for the liberty of this defendant, but, members of the jury, don\u2019t forget how this defendant deprived Danny Cook of his life and liberty, and he deprived him of that life and liberty without the benefit of lawyers, without the benefit of a trial,\u2014\n[Defense Counsel]: Objection].]\n[Prosecutor]: \u2014without the benefit of the judge, and without the benefit of you citizens. He did it on his own. That\u2019s what this defendant did. He took that life on his own and you shouldn\u2019t forget it as you go through this.\nDefendant contends that this argument was inflammatory and punished him for exercising his right to counsel.\nWe considered a similar penalty-phase argument in State v. Walls, 342 N.C. 1, 463 S.E.2d 738 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). Here, as in Walls, \u201c[w]e do not read into the prosecutor\u2019s argument that it was an attack on defendant\u2019s exercise of his constitutional rights. The prosecutor merely argued to the jury that defendant, as judge, jury and executioner, single-handedly decided [the victim\u2019s] fate.\u201d Id. at 64, 463 S.E.2d at 772. The trial court did not err by allowing this argument.\nDefendant next complains that the prosecutor argued that the only punishment for first-degree murder was the death penalty. The prosecutor argued:\nThey may argue to you that don\u2019t give him the sentence of death because it may be a mistake. The only mistake made in this case was when Johnathon Gregory Hoffman took this shotgun, rushed into Cook\u2019s Jewelry, hit Danny Cook over the head and blew a hole in his chest from three feet away. That\u2019s the mistake that\u2019s been made and that defendant made it. Nobody else did it, that defendant did. He chose to make this decision consciously and wilfully. You\u2019ve already convicted him of it. When he chose to make that decision, he chose the punishment he\u2019s going to get for this crime.\n[Defense Counsel]: Objection.\nThe Court: Overruled. It\u2019s for you to determine what punishment and not the defendant. Go ahead.\nDefendant contends that this argument amounts to instructing the jury that death is the sole punishment for first-degree murder.\nThe trial court properly instructed the jury following this argument, as well as during its jury instructions, that it was the jury\u2019s duty to determine the punishment, not the defendant\u2019s. We presume the jury follows the trial court\u2019s instructions. Norwood, 344 N.C. at 537, 476 S.E.2d at 361. Defendant\u2019s argument on this issue is without merit.\nDefendant next.contends the prosecutor improperly informed the jury that there was no limit to the mitigating circumstances defendant could submit to the jury. The prosecutor argued:\nNow, there are only eleven aggravating circumstances listed in the law and we have to prove one of those aggravating circumstances. They have no limitation. They can drag up anything that they\u2014\n[Defense Counsel]: Objection.\nThe Court: Overruled.\n[Prosecutor]: \u2014think has mitigating value. But just because they say it doesn\u2019t make it so.\nDefendant contends this argument improperly informed the jury that defendant could submit any matter as a mitigating circumstance. Defendant argues this is not true because a defendant is only entitled to submit matters as mitigating circumstances which \u201cthe court deems relevant to sentence.\u201d N.C.G.S. \u00a7 15A-2000(a)(3).\nAfter the trial court overruled defendant\u2019s objection, the prosecutor clarified that there was some limitation to what defendant could submit as a mitigating circumstance; it had to be something he believed had mitigating value. The prosecutor was merely arguing that the jury had to decide for itself whether these matters were mitigating. Even assuming arguendo that the jury would have interpreted the prosecutor\u2019s argument as described by defendant, defendant has nevertheless failed to show how he was prejudiced by it. To show prejudice, a defendant must show that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C.G.S. \u00a7 15A-1443(a). Defendant has failed to make this necessary showing.\nDefendant next argues that the prosecutor improperly equated mercy with violent lawlessness. The prosecutor argued:\nIf you feel sorry or pity on Greg Hoffman, that\u2019s all right. If you feel that you should be merciful and not follow the law and just make a choice like Greg Hoffman made when he pulled that trigger, than [sic] it\u2019s your conscience you have to live with.\n[Defense Counsel]: Objection.\nThe Court: Overruled.\n[Prosecutor]: But if you do what you have all sworn to do, that is, follow the law, you will return a verdict recommending this man be sentenced to death.\nDefendant contends that by equating mercy with lawlessness, the prosecutor perverted the concept of mitigation.\nThis Court considered a similar argument in State v. Jones, 336 N.C. 229, 443 S.E.2d 48, cert. denied, 513 U.S. 1003, 130 L. Ed. 2d 423 (1994), where the prosecutor argued during the penalty phase:\nYou are to perform your duty as a juror in reaching this decision fairly and objectively and without bias or prejudice, passion or any other arbitrary factor. Mercy, pity, sympathy, these are emotions. You promised us you would make your decision on the facts according to the law and we believed you.\nId. at 257, 443 S.E.2d at 62. The Court reasoned:\nHearing the argument of the prosecution coupled with the court\u2019s instruction we do not believe a reasonable juror could understand the argument to call for the jury to disregard mitigating evidence simply because it appeals to a person\u2019s sympathies. The argument attempts to and serves to reinforce tbe responsibility of the jury to reach its decision based on the evidence and the law.\nId. at 258-59, 443 S.E.2d at 63. The same reasoning applies here. The trial court did not err by allowing this argument.\nFinally, defendant argues that a portion of the prosecutor\u2019s argument impermissibly urged jurors to imagine that they were potential crime victims and asked the jury to remedy larger societal problems via general deterrence. The prosecutor argued:\nLadies and gentlemen, there is no law \u2014 there is no law and order in our community unless twelve people like you are willing to do your duty. And it is a noble but weighted [sic] thing you must do. You all heard of the reference in literature to the thin blue line, referring to police officers, the thin blue line. Well, ladies and gentlemen, the thin blue line is what separates the Greg Hoffmans, that keeps them out of your home and out of your business, from you,\u2014\n[Defense Counsel]: Object.\n[Prosecutor]: \u2014and your community. It\u2019s the thin\u2014\nThe Court: Overruled.\n[Prosecutor]: It\u2019s the thin blue line, ladies and gentlemen, that protects, serves and defends, but that line, that line, ladies and gentleman, as thin as it is, must be tied to something. It must be anchored. What is the anchor for the thin blue line? You. You are the anchor. There is no law, there is no order without you. You swore to uphold the law.\nWe say that if you listen to the instructions of the Court, you will answer these questions, you will respond to your oath to follow the law no matter how personally distasteful it might be, you will be the anchor for this thin blue line.\nCounsel are allowed wide latitude in the argument of hotly contested cases. State v. Alford, 339 N.C. 562, 572, 453 S.E.2d 512, 517 (1995). We do not believe the prosecutor\u2019s argument exceeded these generous parameters. Taken in context, the prosecutor sought to illustrate the importance of the jury\u2019s role within the system of law enforcement. Having done this, the prosecutor urged the jury to \u201cfollow the law.\u201d The trial court did not err by allowing this argument.\nIn conclusion,' all of defendant\u2019s complaints regarding the prosecutor\u2019s penalty-phase argument are without merit. This assignment of error is overruled.\nDefendant next raises several issues which he concedes this Court has decided against his position, including: (1) that the trial court\u2019s refusal to grant defendant the right of allocution violated his constitutional rights, (2) that the trial court\u2019s instructions regarding the weighing of aggravating and mitigating circumstances violated his constitutional rights, (3) that the trial court\u2019s definition of \u201cmitigating circumstance\u201d violated his constitutional rights, and (4) that the trial court\u2019s instructions regarding the burden of proof applicable to mitigating circumstances violated his constitutional rights. We have reviewed defendant\u2019s arguments, and we find no compelling reason to reconsider our prior holdings. These assignments of error are overruled.\nHaving concluded that defendant\u2019s trial and capital sentencing proceeding were free from prejudicial error, it is our duty to ascertain: (1) whether the evidence supports the aggravating circumstances found by the jury; (2) whether the sentence was entered under the influence of passion, prejudice, or any other arbitrary consideration; and (3) whether the sentence is \u201cexcessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2).\nThe jury found all three aggravating circumstances which were submitted for its consideration. First, the jury found that defendant had been previously convicted of a felony involving the use or threat of violence to the person. N.C.G.S. \u00a7 15A-2000(e)(3). Second, the jury found that defendant committed the offense for pecuniary gain. N.C.G.S. \u00a7 15A-2000(e)(6). Finally, the jury found that the murder was part of a course of conduct which included other acts of violence against other persons. N.C.G.S. \u00a7 15A-2000(e)(11). The record fully supports the jury\u2019s finding of these aggravating circumstances. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We therefore turn to our final duty of proportionality review.\nOne purpose of proportionality review is to \u201celiminate the possibility that a sentence of death was imposed by the action of an aberrant jury.\u201d State v. Lee, 335 N.C. 244, 294, 439 S.E.2d 547, 573, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994). Another is to guard \u201cagainst the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). In proportionality review, it is proper to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 129 L. Ed. 2d 895 (1994). We have found the death penalty disproportionate in seven cases: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, - U.S. -, 139 L. Ed. 2d 177 (1997), and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983).\nThe instant case is distinguishable from each of these cases. In three of these cases, Benson, Stokes, and Jackson, the defendant either pled guilty or was convicted by the jury solely on the basis of the felony murder rule. Here, the defendant was convicted of first-degree murder on the basis of premeditation and deliberation and the felony murder rule. We have consistently stated that \u201c[a] conviction based on the theory of premeditation and deliberation indicates a more calculated and cold-blooded crime.\u201d State v. Davis, 340 N.C. 1, 31, 455 S.E.2d 627, 643, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995). Further, there are four statutory aggravating circumstances which, standing alone, this Court has held sufficient to sustain a sentence of death; the (e)(3) and (e)(11) aggravating circumstances, which the jury found here, are among them. State v. Bacon, 337 N.C. 66, 110 n.8, 446 S.E.2d 542, 566 n.8 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995). In particular, the jury\u2019s finding of the (e)(3) aggravating circumstance, prior conviction of a violent felony, is significant because none of the cases in which this Court has held the death sentence to be disproportionate have included this aggravating circumstance. State v. Harris, 338 N.C. 129, 161, 449 S.E.2d 371, 387 (1994), cert. denied, 514 U.S. 1100, 131 L. Ed. 2d 752 (1995).\nTo determine whether the sentence of death is disproportionate, we also compare the instant case to cases that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). The present case is roughly similar to State v. Cummings, 346 N.C. 291, 488 S.E.2d 550. In Cummings the defendant robbed the victim\u2019s store. During the course of the robbery, the defendant killed the victim by shooting him in the head and then fired at the victim\u2019s wife when she came to investigate the gunfire. Id. at 300-03, 488 S.E.2d at 555-57. The jury convicted the defendant of first-degree murder based on premeditation and deliberation and the felony murder rule, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill. Id. at 300, 488 S.E.2d at 555. At defendant\u2019s capital sentencing hearing, the jury found as aggravating circumstances that the murder was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6), and that the murder was part of a course of conduct including other violent crimes, N.C.G.S. \u00a7 15A-2000(e)(11). Cummings, 346 N.C. at 333, 488 S.E.2d at 575. Further, the jury found twenty-eight of the thirty-two mitigating circumstances submitted. Id. at 334, 488 S.E.2d at 576. The jury recommended the death sentence, and this Court upheld that sentence as proportionate. Id. at 335, 488 S.E.2d at 576.\nThe instant case also involved a robbery during which defendant shot and killed the victim. Defendant was convicted of robbery with a firearm and first-degree murder on the basis of premeditation and deliberation and the felony murder rale. During the capital sentencing phase, the jury found three statutory aggravating circumstances: that defendant was previously convicted of a violent felony, N.C.G.S. \u00a7 15A-2000(e)(3); that the crime was committed for pecuniary gain, N.C.G.S. \u00a7 15A-2000(e)(6); and that the crime was part of a course of conduct including other violent crimes, N.C.G.S. \u00a7 15A-2000(e)(11). The jury found no mitigating circumstances.\nIn summary, defendant here and the defendant in Cummings committed similar crimes, and the juries in both cases found the (e)(6) and (e)(11) aggravating circumstances. The jury here further found the (e)(3) circumstance. In addition, the jury in Cummings found twenty-eight mitigating circumstances, while the jury here found none. We held the sentence of death to be proportionate in Cummings. The sentence of death in this case is likewise proportionate.\nDefendant received a fair trial and capital sentencing proceeding, free from prejudicial error.\nNO ERROR.\nJustice Wynn did not participate in the consideration or decision of this case.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Mary D. Winstead, Assistant Attorney General, for the State.", "Center for Death Penalty Litigation, by Staples Hughes, Staff Attorney, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNATHON GREGORY HOFFMAN\nNo. 313A97\n(Filed 9 October 1998)\n1. Jury \u00a7 227 (NCI4th)\u2014 jury selection \u2014 death penalty views \u2014 conflicting responses \u2014 excnsal for cause\nThe trial court did not abuse its discretion in excusing a prospective juror for cause in a capital sentencing proceeding based upon her death penalty views where she gave conflicting responses to voir dire questions in that she stated on numerous occasions that she did not believe in the death penalty, that she could not consider the death penalty as an appropriate punishment, and that her views would substantially impair the performance of her duties as a juror, but she also stated that she could set aside her views and consider death as a possible punishment.\n2. Jury \u00a7 187 (NCI4th)\u2014 challenge for cause \u2014 different grounds on appeal \u2014 question not presented\nDefendant did not properly preserve for appellate review the question of the trial court\u2019s refusal to excuse a prospective juror for cause where defendant is arguing on appeal completely different grounds in support of his challenge for cause than he argued in the trial court. N.C. R. App. P. 10(b)(1).\n3. Jury \u00a7 194 (NCI4th)\u2014 prospective juror \u2014 conversation with police officer \u2014 denial of challenge for cause\nThe trial court did not abuse its discretion in the denial of defendant\u2019s challenge for cause of a prospective juror in this capital sentencing proceeding after defense counsel reported that a prospective juror was seen conversing with a police officer during a recess where the court conducted an inquiry into the matter; the officer explained that he was telling a story about a time when his father was called for jury duty and he had a case in court and that he did not discuss defendant\u2019s case with the prospective juror; the juror stated that she had not discussed defendant\u2019s case with the officer and had not been influenced with regard to defendant\u2019s case during the conversation; and the trial court was satisfied that the prospective juror could be fair and impartial.\n4. Evidence and Witnesses \u00a7 2956 (NCI4th); Constitutional Law \u00a7 349 (NCI4th)\u2014 corroborating witness \u2014 pending criminal charges \u2014 denial of cross-examination \u2014 harmless error\nAlthough the trial court erred by not allowing defendant to cross-examine a State\u2019s witness regarding pending charges against him for breaking and entering, defendant was not denied the right of effective cross-examination, and the error was harmless, where the witness was not a principal witness for the State but was only a corroborating witness; the witness was thoroughly impeached by cross-examination about his prior crimes and convictions and about several prior inconsistent statements; and the State presented substantial evidence of defendant\u2019s guilt aside from the witness\u2019s testimony. U.S. Const, amend. VI.\n5. Evidence and Witnesses \u00a7 221 (NCI4th)\u2014 car defendant driving on crime date \u2014 ticket two days later \u2014 relevancy\u2014 exclusion as harmless error\nIn a prosecution for armed robbery and first-degree murder in which the State presented evidence that defendant was seen sitting in his white car outside the victim\u2019s jewelry store on the day of the murder, and defendant attempted to prove that he was driving his sister\u2019s red car and she was driving his car on the date of the murder, any error in the trial court\u2019s exclusion of testimony by defendant\u2019s sister that defendant got a ticket while driving her car two days after the murder was not prejudicial since the State presented substantial evidence tending to show defendant\u2019s guilt; the excluded testimony would not necessarily negate evidence that defendant was driving his own car two days earlier when the murder was committed; and the value of the testimony of defendant\u2019s sister was diminished substantially when she admitted on cross-examination that she had never told a law officer that she had defendant\u2019s car on the day of the murder, and she was unsure of the basic features of the car, such as whether it had an automatic or manual transmission, although she stated that she drove it for several weeks.\n6. Evidence and Witnesses \u00a7 310 (NCI4th)\u2014 robbery-murder \u2014 other robberies by defendant \u2014 identity of perpetrator\nTestimony by a witness that defendant had participated in two bank robberies with him during the two months preceding a robbery-murder at a jewelry store was admissible to show defendant\u2019s identity as the perpetrator of the jewelry store crimes where defendant drove his white Nissan in the bank robberies, while a white Nissan was seen outside the jewelry store on the day of the murder; defendant\u2019s sawed-off shotgun and ski mask were used in the bank robberies, and the perpetrator of the jewelry store crimes wore a ski mask and carried a sawed-off shotgun; the banks and the jewelry store were all located in small towns surrounding Charlotte; and all of the establishments were robbed during the daytime when they were open for business.\n7. Criminal Law \u00a7 472 (NCI4th Rev.)\u2014 prosecutor\u2019s closing argument \u2014 burden of proving malice \u2014 harmless error\nAssuming arguendo that it was error for the prosecutor to state during his argument on malice that \u201cthere is no just cause, there is no excuse, there is no justification in this case. Make them tell you where it is,\u201d defendant was not prejudiced where the prosecutor told the jury that the State had to prove malice, and the trial court properly instructed that the prosecutor had the burden of proof as to malice.\n8. Criminal Law \u00a7 475 (NCI4th Rev.)\u2014 prosecutor\u2019s closing argument \u2014 silence\nThe prosecutor\u2019s use of two minutes of silence to emphasize to the jury in a capital trial how long the victim spent bleeding on the floor before he died was not so grossly improper as to require ex mero mo tu intervention by the trial court.\n9. Criminal Law \u00a7 475 (NCI4th Rev.)\u2014 prosecutor\u2019s closing argument \u2014 victim not on trial \u2014 no gross impropriety\nThe prosecutor\u2019s closing argument in a capital trial which merely reminded the jury that it was defendant, not the victim, who was on trial was. not grossly improper as to merit ex mero mo tu intervention by the trial court.\n10. Criminal Law \u00a7 471 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 misstatement of evidence \u2014 not prejudicial error\nThe prosecutor\u2019s single reference in his closing argument in a robbery-murder case to \u201chundreds of rings\u201d that were recovered without any indication of how this evidence supported defendant\u2019s guilt, if a misstatement of the evidence, could not have affected the verdict and was not prejudicial error.\n11. Criminal Law \u00a7 1374 (NCI4th Rev.)\u2014 capital sentencing \u2014 prior robberies \u2014 course of conduct aggravating circumstance\nEvidence of defendant\u2019s participation in two bank robberies in the two months preceding the robbery-murder at issue was sufficient to support the trial court\u2019s submission of the course of conduct aggravating circumstance to the jury since the span of time was not so great as to prevent the crimes from being considered part of the same course of conduct, and there was a similar modus operandi employed in the crimes. N.C.G.S. \u00a7 15A-2000(e)(ll).\n12. Criminal Law \u00a7 475 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 taking victim\u2019s life without trial\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding commenting on the fact that defendant took the victim\u2019s life without the benefit of a trial was not an attack on defendant\u2019s exercise of his constitutional rights and was not improper.\n13. Criminal Law \u00a7 460 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 punishment chosen by defendant \u2014 absence of prejudice\nDefendant was not prejudiced by the prosecutor\u2019s closing argument in a capital sentencing proceeding that, when defendant made the decision to rob and shoot the victim, \u201che chose the punishment he\u2019s going to get for this crime\u201d where the trial court properly instructed the jury following this argument, as well as during its jury instructions, that it was the jury\u2019s duty, not defendant\u2019s, to determine the punishment.\n14. Criminal Law \u00a7 458 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 mitigating circumstances\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding that \u201c[t]hey can drag up anything they think has mitigating value. But just because they say it doesn\u2019t make it so\u201d did not improperly inform the jury that defendant could submit any matter as a mitigating circumstance; rather, the prosecutor was merely arguing that the jury had to decide for itself whether the matters submitted by defendant were mitigating. Assuming, arguendo that the argument was improper, defendant was not prejudiced thereby.\n15. Criminal Law \u00a7 460 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 not perversion of concept of mitigation\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding that if the jury feels \u201cthat you should be merciful and not follow the law and just make a choice like [defendant] made when he pulled that trigger, then it\u2019s your conscience you have to live with. But if you do what you have all sworn to do, that is, follow the law, you will return a verdict recommending this man be sentenced to death\u201d did not improperly equate mercy with lawlessness and pervert the concept of mitigation; rather, the argument attempts to reinforce the responsibility of the jury to reach its decision based on the evidence and the law.\n16. Criminal Law \u00a7 448 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s closing argument \u2014 jury\u2019s role in law enforcement system\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding that the thin blue line (police officers) is what keeps persons like defendant out of your home, business, and community, that the jury is the anchor for the thin blue line, that there is no law or order without the jury, and that the jury should \u201cfollow the law\u201d did not impermissibly urge the jurors to imagine they were potential crime victims and ask the jury to remedy societal problems via general deterrence. Taken in context, the argument sought to illustrate the importance of the jury\u2019s role within the system of law enforcement and was not improper.\n17. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate where this case involved a robbery during which defendant shot and killed the victim; defendant was convicted of armed robbery and of first-degree murder on the basis of premeditation and deliberation and the felony murder rule; the jury found as aggravating circumstances that defendant had been previously convicted of a violent felony, that the murder was committed for pecuniary gain, and that the murder was part of a course of conduct including other violent crimes; and the jury found no mitigating circumstances.\nJustice Wynn did not participate in the consideration or decision of this case.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Helms (William H.), J., on 14 November 1996 in Superior Court, Union County, upon a jury verdict finding defendant guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to an additional judgment was allowed 5 December 1997. Heard in the Supreme Court 26 May 1998.\nMichael F. Easley, Attorney General, by Mary D. Winstead, Assistant Attorney General, for the State.\nCenter for Death Penalty Litigation, by Staples Hughes, Staff Attorney, for defendant-appellant." }, "file_name": "0167-01", "first_page_order": 205, "last_page_order": 233 }