{ "id": 491773, "name": "STATE OF NORTH CAROLINA v. BRANDON CABOTT JONES", "name_abbreviation": "State v. Jones", "decision_date": "2003-08-22", "docket_number": "No. 115A02", "first_page": "409", "last_page": "423", "citations": [ { "type": "official", "cite": "357 N.C. 409" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "413", "parenthetical": "holding that the pecuniary gain aggravating circumstance may be considered in a robbery-murder case" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "486", "parenthetical": "holding that the pecuniary gain aggravating circumstance may be considered in a robbery-murder case" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "396 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "316", "parenthetical": "holding that both the pecuniary gain aggravating circumstance and the course of conduct aggravating circumstance were properly submitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494725 ], "year": 1990, "pin_cites": [ { "page": "452", "parenthetical": "holding that both the pecuniary gain aggravating circumstance and the course of conduct aggravating circumstance were properly submitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0439-01" ] }, { "cite": "136 L. Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 875", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11641506, 11641891, 11641540, 11641795, 11641769, 11641930, 11641738, 11641613, 11641647, 11641679, 11641590, 11641526, 11641561, 11641850 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0875-01", "/us/519/0875-13", "/us/519/0875-03", "/us/519/0875-11", "/us/519/0875-10", "/us/519/0875-14", "/us/519/0875-09", "/us/519/0875-06", "/us/519/0875-07", "/us/519/0875-08", "/us/519/0875-05", "/us/519/0875-02", "/us/519/0875-04", "/us/519/0875-12" ] }, { "cite": "467 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "342 N.C. 742", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796051 ], "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0742-01" ] }, { "cite": "126 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "510 U.S. 1028", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 231489, 230913, 231364, 234554, 234438, 234126, 232495, 232878, 230190, 230450, 231636, 235834, 230556 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/510/1028-01", "/us/510/1028-11", "/us/510/1028-08", "/us/510/1028-06", "/us/510/1028-02", "/us/510/1028-13", "/us/510/1028-04", "/us/510/1028-10", "/us/510/1028-12", "/us/510/1028-05", "/us/510/1028-07", "/us/510/1028-03", "/us/510/1028-09" ] }, { "cite": "430 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "209" }, { "page": "210" } ], "opinion_index": 0 }, { "cite": "333 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545734 ], "weight": 2, "pin_cites": [ { "page": "620" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0579-01" ] }, { "cite": "136 L. Ed. 2d 723", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "519 U.S. 1097", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11765921, 11765698, 11765538, 11765284, 11765769, 11765993, 11765836, 11765390, 11765330, 11765618, 11765078, 11765464, 11765147, 11765212 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/519/1097-13", "/us/519/1097-10", "/us/519/1097-08", "/us/519/1097-04", "/us/519/1097-11", "/us/519/1097-14", "/us/519/1097-12", "/us/519/1097-06", "/us/519/1097-05", "/us/519/1097-09", "/us/519/1097-01", "/us/519/1097-07", "/us/519/1097-02", "/us/519/1097-03" ] }, { "cite": "472 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "343 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798778 ], "year": 1996, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0518-01" ] }, { "cite": "151 L. Ed. 2d 55", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9117856, 9117795, 9118071, 9118021, 9117990, 9117833, 9118126, 9117934, 9117905, 9118098, 9117970, 9117879, 9117950, 9118047 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0839-03", "/us/534/0839-01", "/us/534/0839-12", "/us/534/0839-10", "/us/534/0839-09", "/us/534/0839-02", "/us/534/0839-14", "/us/534/0839-06", "/us/534/0839-05", "/us/534/0839-13", "/us/534/0839-08", "/us/534/0839-04", "/us/534/0839-07", "/us/534/0839-11" ] }, { "cite": "539 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "353 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135705 ], "year": 2000, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0001-01" ] }, { "cite": "154 L. Ed. 2d 900", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "565 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "64", "parenthetical": "describing the pecuniary gain where the trial court instructed, \"[I]f you find from the evidence and beyond a reasonable doubt that when the defendant killed the victim, the defendant obtained money as a result, you would find this aggravating circumstance.\"" } ], "opinion_index": 0 }, { "cite": "355 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220107 ], "year": 2002, "pin_cites": [ { "page": "710", "parenthetical": "describing the pecuniary gain where the trial court instructed, \"[I]f you find from the evidence and beyond a reasonable doubt that when the defendant killed the victim, the defendant obtained money as a result, you would find this aggravating circumstance.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0696-01" ] }, { "cite": "155 L. Ed. 2d 1074", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "150", "parenthetical": "describing the pecuniary gain where the trial court instructed, \"[I]f you find from the evidence beyond a reasonable doubt[] that when the defendant killed the victim, the defendant took money from the victim, you would find this aggravating circumstance.\"" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "pin_cites": [ { "page": "383", "parenthetical": "describing the pecuniary gain where the trial court instructed, \"[I]f you find from the evidence beyond a reasonable doubt[] that when the defendant killed the victim, the defendant took money from the victim, you would find this aggravating circumstance.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] }, { "cite": "130 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "513 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1332513, 1333762, 1333317, 1330854, 1331561, 1332010, 1333466, 1335833, 1334928, 1334225, 1331538, 1335700, 1335894, 1330809, 1330874, 1331419 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/513/1135-09", "/us/513/1135-05", "/us/513/1135-08", "/us/513/1135-03", "/us/513/1135-15", "/us/513/1135-14", "/us/513/1135-04", "/us/513/1135-02", "/us/513/1135-12", "/us/513/1135-07", "/us/513/1135-11", "/us/513/1135-10", "/us/513/1135-16", "/us/513/1135-06", "/us/513/1135-01", "/us/513/1135-13" ] }, { "cite": "446 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550074 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0243-01" ] }, { "cite": "130 L. Ed. 2d 1083", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "513 U.S. 1159", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1331456, 1334498, 1332549, 1332346, 1331241, 1334698, 1331178, 1330956, 1330522, 1330858, 1330509, 1335257, 1335770, 1333467, 1333725, 1332958 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/513/1159-10", "/us/513/1159-14", "/us/513/1159-12", "/us/513/1159-13", "/us/513/1159-07", "/us/513/1159-01", "/us/513/1159-09", "/us/513/1159-06", "/us/513/1159-03", "/us/513/1159-04", "/us/513/1159-16", "/us/513/1159-15", "/us/513/1159-05", "/us/513/1159-08", "/us/513/1159-02", "/us/513/1159-11" ] }, { "cite": "446 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "559", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "337 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550101 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0066-01" ] }, { "cite": "134 L. Ed. 2d 793", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "517 U.S. 1197", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11825312, 11825025, 11825060, 11824901, 11825095, 11825259, 11824846, 11824943, 11825136, 11824784, 11824979, 11825363, 11824728, 11825210 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/517/1197-13", "/us/517/1197-07", "/us/517/1197-08", "/us/517/1197-04", "/us/517/1197-09", "/us/517/1197-12", "/us/517/1197-03", "/us/517/1197-05", "/us/517/1197-10", "/us/517/1197-02", "/us/517/1197-06", "/us/517/1197-14", "/us/517/1197-01", "/us/517/1197-11" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "463 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "223", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795909 ], "year": 1995, "pin_cites": [ { "page": "81", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0074-01" ] }, { "cite": "140 L. Ed. 2d 132", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1126", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11629057, 11629187, 11629497, 11629126, 11629385, 11629611, 11629422, 11629556, 11629238, 11629721, 11629659, 11629085, 11629279 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1126-01", "/us/522/1126-04", "/us/522/1126-09", "/us/522/1126-03", "/us/522/1126-07", "/us/522/1126-11", "/us/522/1126-08", "/us/522/1126-10", "/us/522/1126-05", "/us/522/1126-13", "/us/522/1126-12", "/us/522/1126-02", "/us/522/1126-06" ] }, { "cite": "488 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "346 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139592 ], "year": 1997, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0404-01" ] }, { "cite": "573 S.E.2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "153", "parenthetical": "quoting State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132, (1998)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511491 ], "year": 2002, "pin_cites": [ { "page": "523", "parenthetical": "quoting State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132, (1998)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0490-01" ] }, { "cite": "153 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "744" } ], "opinion_index": 0 }, { "cite": "270 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565060 ], "year": 1967, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0025-01" ] }, { "cite": "334 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "750", "parenthetical": "holding that \"[i]n the absence of an indication to the trial court that [defendant] wished to take the stand, it cannot be said that the court denied the defendant his right to testify\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685694 ], "year": 1985, "pin_cites": [ { "page": "474-75", "parenthetical": "holding that \"[i]n the absence of an indication to the trial court that [defendant] wished to take the stand, it cannot be said that the court denied the defendant his right to testify\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0460-01" ] }, { "cite": "233 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "292 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569542 ], "year": 1977, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0270-01" ] }, { "cite": "156 L. E. 2d 471", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 8898384 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/539/0510-01" ] }, { "cite": "501 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "348 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659843 ], "year": 1998, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0474-01" ] }, { "cite": "145 L. Ed. 2d 388", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9591745, 9590821, 9590661, 9591239, 9591017, 9591422, 9591627, 9590924, 9591537, 9591858, 9590740, 9591319, 9591161, 9591095, 9591966 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/1006-13", "/us/528/1006-03", "/us/528/1006-01", "/us/528/1006-08", "/us/528/1006-05", "/us/528/1006-10", "/us/528/1006-12", "/us/528/1006-04", "/us/528/1006-11", "/us/528/1006-14", "/us/528/1006-02", "/us/528/1006-09", "/us/528/1006-07", "/us/528/1006-06", "/us/528/1006-15" ] }, { "cite": "514 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "495" }, { "page": "495" }, { "page": "495" }, { "page": "495", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "350 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132207 ], "weight": 3, "pin_cites": [ { "page": "328-29" }, { "page": "328" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0315-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 7, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "688-89" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "495 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "708" }, { "page": "708" } ], "opinion_index": 0 }, { "cite": "347 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551263 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "503" }, { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0489-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "798", "parenthetical": "holding that \"the decision of whether appointed counsel shall be replaced is a matter committed to the sound discretion of the trial court\"" }, { "page": "798" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "336", "parenthetical": "holding that \"the decision of whether appointed counsel shall be replaced is a matter committed to the sound discretion of the trial court\"" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] } ], "analysis": { "cardinality": 1253, "char_count": 34499, "ocr_confidence": 0.753, "pagerank": { "raw": 9.378850245846426e-08, "percentile": 0.5151255922642595 }, "sha256": "d89b4839fb77a3ff43400d1a33d5099ea6a90a2ec5abe0d5f7e195bbe1535122", "simhash": "1:a377113e331edd16", "word_count": 5571 }, "last_updated": "2023-07-14T16:54:45.083013+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. BRANDON CABOTT JONES" ], "opinions": [ { "text": "ORR, Justice.\nDefendant, Brandon Cabott Jones, was indicted on 13 September 1999 for the first-degree murders of Donald James Hunt and Devan Lashawn Bynum, for three counts of kidnapping, for one count of robbery with a dangerous weapon, and for one count of felonious breaking or entering. The trial court dismissed the kidnapping counts at the close of the State\u2019s evidence during the guilt-innocence phase of defendant\u2019s trial.\nDefendant was tried capitally. The jury found defendant guilty of all charges, specifically finding him guilty of both murders under the felony murder rule. Following a capital sentencing proceeding, the jury recommended a sentence of death for the murder of Donald James Hunt and a sentence of life imprisonment for the murder of Devan Lashawn Bynum. The trial court entered judgments accordingly. The trial court additionally imposed a consecutive sentence of eleven to fourteen months\u2019 imprisonment for the breaking and entering conviction and arrested judgment on the robbery conviction, as it was the underlying felony in the felony murder conviction.\nEvidence presented during the guilt-innocence phase tended to show the following: On 13 August 1999 at approximately 2:00 p.m., defendant, Damon Demond Stafford, and Devan Lashawn Bynum broke into the home of Donald James Hunt (Mr. Hunt); his wife, Janie Hunt (Mrs. Hunt), and their son, Donald James Hunt, Jr. (Hunt, Jr.), in Gastonia, North Carolina. Hunt, Jr. was asleep on a cot in the living room, and Mr. and Mrs. Hunt were asleep in their bedroom. Hunt, Jr. and Mrs. Hunt became aware of the intruders\u2019 presence when they were awakened by a loud noise originating from the back door. Mrs. Hunt and Hunt, Jr. heard one of the intruders say, \u201cPolice, police.\u201d Hunt, Jr. testified that he heard one of them say, \u201cGet down on the floor.\u201d After one of them directed Hunt, Jr. at gunpoint to get on the floor, Bynum asked Hunt, Jr. if he was called \u201cD.J.\u201d and if he drove a black Explorer. After receiving an affirmative answer, Bynum hit Hunt, Jr. in the head with a gun.\nMr. Hunt awoke when one of the intruders held a gun to his head and told him to get up. The intruder directed Mr. and Mrs. Hunt to go into the living room and to lie on the floor. All three intruders held Mr. and Mrs. Hunt and their son at gunpoint, demanding money and drugs. The evidence is unclear as to which one of the assailants took $2,500 and jewelry from Hunt, Jr. A short time after entering the home, the intruders asked Hunt, Jr. if he had any more money. He told them that he had money behind a drawer upstairs. Bynum took Mrs. Hunt upstairs at gunpoint while defendant stood on the couch holding a gun on Hunt, Jr. Bynum made Mrs. Hunt lie on the floor while he looked for the money. After an unsuccessful attempt, Bynum took Mrs. Hunt back downstairs. One of the assailants said, \u201c[Y]\u2019all think this is a joke? You think we are playing?\u201d Bynum or Stafford said, \u201cY\u2019all about to die for this s \u2014 .\u201d \u201cStarting with this b\u2014 right here.\u201d At that point, Bynum hit Mrs. Hunt in the head with a gun, and Mr. Hunt got up from the floor and grabbed Bynum. Bynum and Mr. Hunt struggled over the gun, ultimately moving into the bedroom, with Stafford entering the bedroom behind them. While Mr. Hunt, Bynum, and Stafford were in the bedroom, defendant continued to hold Hunt, Jr. at gunpoint. Both Mrs. Hunt and Hunt, Jr. testified that they heard gunshots coming from the bedroom. The evidence showed that as a result of their struggle both Mr. Hunt and Bynum had been shot. After the shooting, defendant and Stafford assisted Bynum as the three ran from the home, taking a briefcase with them.\nStafford, Bynum, and defendant then went to Bynum\u2019s girlfriend\u2019s apartment. Upon arrival, Stafford asked a neighbor, Teresa Nolan, to call the police. However, Stafford changed his mind and said, \u201cWe\u2019re taking him to the hospital.\u201d Defendant and Stafford drove Bynum to Carolinas Medical Center in Charlotte, twenty-five miles from Gastonia. They took Bynum into the emergency room and left the hospital.\nMr. Hunt suffered multiple gunshot wounds and died that afternoon at Gaston Memorial Hospital from an acute hemorrhage secondary to a gunshot wound to the abdomen. Bynum died from three gunshot wounds prior to arriving at the hospital. Defendant was arrested three days after the shootings at a Days Inn Motel in Charlotte. The police recovered jewelry and money in the amount of $1,378.24 from defendant\u2019s room. Police arrested Stafford in Winston-Salem seven days after the shootings.\nOn appeal to this Court, defendant brings forth thirteen questions for review: three dealing with the guilt-innocence portion of his trial and ten dealing with his sentencing proceeding, including proportionality review.\nGnilt-\u00ednnocenice Phase Issues\nOn 17 August 1999, the trial court appointed Public Defender Kellum Morris to represent defendant. On 5 April 2000, the trial court appointed attorney Rick Beam as co-counsel. Defendant argues in his first question presented that the trial court erred or abused its discretion by denying defendant\u2019s numerous pretrial motions to dismiss counsel. Defendant claims that the attorney-client relationship deteriorated because of a breakdown in communication, warranting dismissal of defense counsel.\nDefendant filed pro se pretrial \u201cMotions to Withdraw\u201d on 6 November 2000, 19 February 2001, and 23 April 2001, asking for Morris\u2019 dismissal as counsel. Defendant also wrote two undated letters to Judge Jesse B. Caldwell expressing his dissatisfaction with Morris\u2019 services. In defendant\u2019s first letter to Judge Caldwell, he complained (1) that Morris had not made an attempt to schedule a bond hearing for the fifteen-month period that Morris had been representing him, (2) that Morris displayed a lack of interest in his case evidenced by Morris\u2019 discussion of a plea agreement as opposed to going to trial, and (3) that defendant\u2019s chance of being found not guilty would be greater if he obtained a \u201cproductive counselor.\u201d In his second letter to Judge Caldwell, defendant complained that Morris had not visited him in almost seven months.\nJudge Richard D. Boner heard and denied defendant\u2019s first motion to dismiss counsel on 16 February 2001. Judge Caldwell heard and denied defendant\u2019s second motion to dismiss counsel on 5 March 2001. At this second hearing, defendant complained that Morris had not returned his phone calls, had not kept his family informed about his case, and had not visited him in almost ten months. Judge Larry G. Ford heard defendant\u2019s third motion to dismiss counsel on 21 May 2001 and entered an order denying that motion on 22 May 2001. At this third hearing, defendant alleged that Morris had been untruthful, that Morris had not reviewed discovery with him, and that Morris represented many other cases. Defendant contends that his letters and three hearings provided enough information to dismiss Morris as his defense counsel.\nThis Court uses an abuse of discretion standard to determine whether the trial court erred in denying a motion to have defense counsel removed. State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981) (holding that \u201cthe decision of whether appointed counsel shall be replaced is a matter committed to the sound discretion of the trial court\u201d). Abuse of discretion occurs when the trial court\u2019s ruling is \u201cmanifestly unsupported by reason.\u201d State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998).\nIn order to establish prejudicial error arising from the trial court\u2019s denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must satisfy a two-prong test which was promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).\nState v. Thomas, 350 N.C. 315, 328-29, 514 S.E.2d 486, 495 (citation omitted), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999).\n\u201c[Defendant must first show that counsel\u2019s performance fell below an objective standard of reasonableness as defined by professional norms. . . . Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. Thus, defendant must show that the error committed was so grave that it deprived him of a fair trial because the result itself is considered unreliable.\u201d\nId. at 328, 514 S.E.2d at 495 (quoting State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998)) (citations omitted) (second alteration in original).\nWe conclude that defendant did not satisfy the Strickland test. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).\nThe North Carolina Revised Rules of Professional Conduct establish the professional standards guiding attorney conduct. Rule 1.4(a)(4) of the North Carolina Revised Rules of Professional Conduct requires that a lawyer \u201cpromptly comply with reasonable requests for information.\u201d 27 NCAC 02 Rule 1.4(a)(4) (June 2003). The comment to Rule 1.4(a)(4) provides that\n[w]hen a client makes a reasonable request for information, . . . paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer\u2019s staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.\nId. at cmt. [4]. Defendant has failed to show that Morris\u2019 actions did not meet \u201can objective standard of reasonableness as defined by professional norms,\u201d Thomas, 350 N.C. at 328, 514 S.E.2d at 495, set out in Rule 1.4(a)(4) of the North Carolina Revised Rules of Professional Conduct.\nAt the 5 March 2001 hearing, Judge Caldwell addressed defendant\u2019s 19 February 2001 pro se \u201cMotion to Withdraw Counsel.\u201d Defendant stated that Morris had not returned his phone calls and had not visited him in almost .ten months. Morris responded as follows:\nI have seen Mr. Jones more than the two times he talks about, but there has been some conflict, and I have sent my investigators down there to talk to Mr. Jones. . . . Part of the problem in terms of seeing Mr. Jones is he spent a significant amount of his time in incarceration in Mecklenburg County because he has pending charges over there, and I don\u2019t always know when Mr. Jones is being taken from Gaston to Mecklenburg County to address the pending charges over there.\nI have not had much contact with Mr. Jones except in writing since he filed that \u2014 the first motion \u2014 what he calls a motion to withdraw, although we continue to work on the preparation of his defense.\nJudge Caldwell stated that \u201cthere [was] absolutely no specific allegations of conflict or ineffective representation by Mr. Morris.\u201d Judge Caldwell also stated that \u201cAttorney Morris [had] visited with the defendant and [had] communicated with him and [had] caused his investigators to communicate with him . . . and that Attorney Morris [had] been unable to confer with the defendant in the Gaston County Jail for significant periods of time by reason of the defendant\u2019s incarceration ... in the Mecklenburg County Jail.\u201d Accordingly, on 21 March 2001, Judge Caldwell \u00e9ntered an order denying defendant\u2019s motion to dismiss.\nAt the 21 May 2001 hearing, Judge Ford addressed defendant\u2019s 23 April 2001 pro se \u201cMotion to Withdraw Counsel.\u201d At the hearing, defendant contended that he had interrupted a visit that Morris had with another client in July 2000 and that defendant saw Morris in court two months prior but that other than those two instances Morris had not visited him in a year. Morris explained to Judge Ford that as long as defendant was filing motions seeking his withdrawal, he would not visit defendant; however, he did send his co-counsel, attorney Beam. Morris explained that he never \u201cceased to work on the case [or] to communicate periodically with Mr. Beam.\u201d Morris further contended that defendant did not agree with his assessment of the case.\nDespite Morris\u2019 consistent failure to communicate personally with defendant, defendant has failed to show that Morris\u2019 actions did not meet the \u201cobjective standard of reasonableness as defined by professional norms.\u201d Thomas, 350 N.C. at 328, 514 S.E.2d at 495 (emphasis added). Unlike the attorney for the defendant in Wiggins v. Smith, \u2014 U.S.-, 156 L. E. 2d 471 (2003), who conducted virtually no investigation of his client\u2019s background, Morris did communicate with defendant in writing and through his co-counsel, attorney Beam. Morris also continued to work on defendant\u2019s case and to keep close contact with Beam.\nThe concerns expressed by defendant relating to the frequency he received visits from his attorneys are untenable. While it is no doubt true that the effective assistance of counsel includes the development and nurturing of an attorney-client relationship, we conclude that repeated visits to a defendant\u2019s jail cell at a particular level of frequency are not necessarily incident to that development. An attorney is obligated to consult with his client whenever the need arises. Furthermore, an attorney ought to keep his client informed of the status of his case. These duties are clear and hardly open to question. The issue, however, which is posed by this assignment is not whether these duties exist but whether defense counsel failed to so conduct [himself] and thereby denied defendant his sixth amendment right to the effective assistance of counsel.\nHutchins, 303 N.C. at 336, 279 S.E.2d at 798. Since defendant has not met the first prong of the Strickland test, we need not address the second prong. Furthermore, it is instructive that the trial court \u201cquestioned defense counsel and ascertained that he was qualified, both by education and experience.\u201d State v. Gray, 292 N.C. 270, 281, 233 S.E.2d 905, 913 (1977).\nTo further support his contention that Morris\u2019 representation was ineffective, defendant compares his defense theory to that proffered by co-defendant Stafford in his trial. The United States Supreme Court has stated that\n[n]o particular set of detailed rules for counsel\u2019s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.\nStrickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 694. As such, this Court will not engage in a line-by-line comparison of different defendants\u2019 trials to determine whether there was ineffective assistance of counsel in any of the trials.\nAccordingly, the hearing judges did not abuse their discretion in denying defendant\u2019s motions to dismiss Morris as counsel. Since defendant did not meet the two-pronged Strickland test, it follows that the denials of defendant\u2019s motions were not \u201cmanifestly unsupported by reason.\u201d T.D.R., 347 N.C. at 503, 495 S.E.2d at 708. This assignment of error is overruled.\nNext, defendant argues that the trial court erred in failing to inquire sua sponte whether defendant wanted to testify on his own behalf. Defendant acknowledges that this Court has never required a trial court to determine whether a defendant wants to testify in his or her own behalf. See State v. Hayes, 314 N.C. 460, 474-75, 334 S.E.2d 741, 750 (1985) (holding that \u201c[i]n the absence of an indication to the trial court that [defendant] wished to take the stand, it cannot be said that the court denied the defendant his right to testify\u201d). However, defendant asks this Court to \u201crequire affirmative record documentation that the defendant understood that he had the right to testify, that the decision was his alone to make and could not be overridden by counsel, and that consequences flow from the exercise and waiver of the right.\u201d\nDefendant argues that just as an accused\u2019s failure to request counsel on his own does not constitute a waiver of counsel in the context of custodial interrogations, defendant\u2019s failure to notify the trial court on his own cannot constitute a waiver of defendant\u2019s right to testify. We reject this argument. Unlike an accused in a custodial interrogation, defendant in this case had two defense attorneys representing him. We find no reason to overrule our decision in Hayes.\nDefendant next contends that the State\u2019s failure to prove robbery with a dangerous weapon made the evidence insufficient to establish felony murder. The robbery indictment alleged that defendant took a briefcase and $3,525 \u201cfrom the presence, person, place of business, and residence of Donald James Hunt.\u201d Likewise, the murder indictment alleged that defendant murdered \u201cDonald James Hunt.\u201d Defendant argues that the prosecution elicited evidence about property being stolen from the person of \u201cDonald James Hunt, Jr.,\u201d not from the person of \u201cDonald James Hunt,\u201d thereby going \u201coutside the four corners\u201d of the robbery indictment.\nDefendant cites to State v. Bell for the proposition that an indictment is invalid when it names one person as the victim, but the evidence establishes that the victim was another. State v. Bell, 270 N.C. 25, 29, 153 S.E.2d 741, 744 (1967). In Bell, this Court held that the trial court should have granted the defendant\u2019s motion for judgment of nonsuit because a \u201cfatal variance [existed] between the indictment and the proof on [the] record.\u201d Id. The indictment charged that defendant robbed \u201cJean\u201d Rogers and the \u201centire proof and the record [was] that the person robbed was \u2018Susan\u2019 Rogers.\u201d Id. Bell is distinguishable from the case at bar because contrary to defendant\u2019s claim, there is evidence that the briefcase belonged to the senior Donald James Hunt. Mrs. Hunt reported to the police that the perpetrators \u201ctook a briefcase that contained their personal papers such as marriage certificate, marriage license, birth certificate, car title and insurance papers.\u201d Mrs. Hunt\u2019s statement allowed the jury to infer that the briefcase belonged to Mr. Hunt because she identified the contents as \u201ctheir\u201d personal papers. Given that the personal papers Mrs. Hunt mentioned included a marriage certificate and a marriage license, the jury could properly infer that the briefcase belonged to Mr. Hunt, not to his son, Donald Hunt, Jr. We conclude that there is no fatal variance between the indictment and the evidence, hence, defendant\u2019s assignment of error is overruled.\nSentencing Proceeding Issues\nWhile defendant raises numerous sentencing issues, we need address only one.\nDefendant contends that the trial court committed plain error in instructing the jury on the pecuniary gain aggravating circumstance. See N.C.G.S. \u00a7 15A-2000(e)(6) (2001). Defendant claims that the trial court\u2019s instructions \u201cset forth an irrebuttable presumption that the aggravator existed based on the jury\u2019s determination that Mr. Jones was guilty of felony murder.\u201d We agree.\n\u201c \u2018In order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.\u2019 \u201d State v. Berry, 356 N.C. 490, 523, 573 S.E.2d 132, 153 (2002) (quoting State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132, (1998)). \u201cTo constitute plain error, an error in the trial court\u2019s instruction must be [one] \u2018so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u2019 \u201d State v. Robinson, 342 N.C. 74, 81, 463 S.E.2d 218, 223 (1995) (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996).\nThe trial court instructed the jury as follows regarding the pecuniary gain aggravating circumstance:\nNumber 1, was the murder committed for pecuniary gain? This possible aggravating circumstance may be considered in both of the two cases involving the victims Donald James Hunt and Devan Lashawn Bynum. A murder is committed for pecuniary gain if the defendant, when he commits it, has obtained or intends or expects to obtain money or some other thing which can be valued in money either as compensation for committing it, or as a result of the death of the victim.\nIf you find from the evidence beyond a reasonable doubt in either or both cases, that when the defendant killed the victim, the defendant was in the commission of robbery with a dangerous weapon, you would find this aggravating circumstance and would so indicate by having your foreperson write yes in the space after this aggravating circumstance on the issues and recommendation form in either or both of the cases so found. If you do not so find or have a reasonable doubt as to one or more of these things in either or both of these cases, you will not find this aggravating circumstance in that case or cases so found, and will so indicate by having your foreperson write no in that space in that case or cases.\n(Emphasis added.)\nThe State argues that the trial court\u2019s instruction on the pecuniary gain aggravating circumstance was proper because it tracked the pattern jury instructions. The relevant portion of the pattern instruction for pecuniary gain is listed as follows:\nIf you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant (describe pecuniary gain, e.g., had been hired to do so), you would find this aggravating circumstance ....\nN.C.P.I. \u2014 Crim. 150.10 (Oct. 1998). The emphasized portion of this instruction directs the trial judge to describe the pecuniary gain. If the trial judge did not explain or describe to the jury what constitutes pecuniary gain in a felony murder, the jury\u2019s finding of robbery with a dangerous weapon or any other felony invoking felony murder would automatically mandate the finding of the aggravator. Thus, the occurrence of a robbery with a dangerous weapon does not and cannot automatically allow the jury to find the existence of the (e)(6) pecuniary gain aggravating circumstance. Given that the jury had already convicted defendant of robbery with a dangerous weapon in the guilt-innocence phase, the sentencing instruction left the jury with no discretion whether to find or not find the pecuniary gain aggravating circumstance. Thus, the trial judge should have described what constituted the pecuniary gain.\nThe State cites to State v. Bacon, 337 N.C. 66, 446 S.E.2d 542 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995), to support the trial judge\u2019s instruction in this case. The jury instruction on pecuniary gain in Bacon was as follows:\nIf you find from the evidence beyond a reasonable doubt that when the defendant killed the victim the defendant expected to share in the life insurance proceeds on the life of the victim, you would find this aggravating circumstance ....\nId. at 99, 446 S.E.2d at 559 (emphasis added). This Court in Bacon held that the trial court\u2019s instruction was in accordance with the North Carolina pattern jury instructions. The State contends that the trial court\u2019s instruction in the case at bar was in accordance with the pattern jury instructions and with the trial court\u2019s instruction in Bacon. However, there is a critical distinction between the trial court\u2019s instruction in the present case and the trial court\u2019s instruction in Bacon. The trial court\u2019s instruction in Bacon did precisely what the pattern jury instructions called for: it described the pecuniary gain (\u201cthe defendant expected to share in the life insurance proceeds on the life of the victim\u201d). Id. Unlike in Bacon, the trial court\u2019s instruction in this case did not describe the actual pecuniary gain. The instruction simply directed that if the jury found robbery with a dangerous weapon, then the jury would find the pecuniary gain aggravating circumstance. As such, Bacon does not lend support to upholding the trial court\u2019s instruction in this case.\nFurthermore, the State relies on State v. Daniels to support the trial court\u2019s instruction in this case. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). However, just as in Bacon, the trial court\u2019s instruction in Daniels specifically described the pecuniary gain:\nIf you find from the evidence, beyond a reasonable doubt, that when the defendant killed the victim, the defendant intended to or expected to obtain money from the victim, you would find this aggravating circumstance ....\nId. at 280, 446 S.E.2d at 321 (emphasis added). Therefore, the Daniels instruction is also distinguishable from the trial court\u2019s instruction in the instant case because the trial court in Daniels described the pecuniary gain. See State v. Barden, 356 N.C. 316, 383, 572 S.E.2d 108, 150 (2002) (describing the pecuniary gain where the trial court instructed, \u201c[I]f you find from the evidence beyond a reasonable doubt[] that when the defendant killed the victim, the defendant took money from the victim, you would find this aggravating circumstance.\u201d), cert. denied, \u2014U.S.-, 155 L. Ed. 2d 1074 (2003); State v. White, 355 N.C. 696, 710, 565 S.E.2d 55, 64 (2002) (describing the pecuniary gain where the trial court instructed, \u201c[I]f you find from the evidence and beyond a reasonable doubt that when the defendant killed the victim, the defendant obtained money as a result, you would find this aggravating circumstance.\u201d), cert. denied,-U.S.-, 154 L. Ed. 2d 900 (2003); State v. Davis, 353 N.C. 1, 36, 539 S.E.2d 243, 266 (2000) (describing the pecuniary gain where the trial court instructed, \u201cIf you find, from the evidence beyond a reasonable doubt, that when the defendant killed the victim, that the defendant took personal property or other items belonging to [the victim] and that he intended or expected to obtain money or property or any other thing that can be valued in money, you would find this aggravating circumstance.\u201d), cert. denied, 534 U.S. 839, 151 L. Ed. 2d 55 (2001); State v. Bishop, 343 N.C. 518, 556, 472 S.E.2d 842, 863 (1996) (describing the pecuniary gain where the trial court instructed, \u201c[I]f you find from the evidence beyond a reasonable doubt, that when the defendant killed [the victim], or someone acting in concert with him killed her, the defendant took jewelry, silver and credit cards, you would find this aggravating circumstance\u201d), cert. denied, 519 U.S. 1097, 136 L. Ed. 2d 723 (1997); State v. Jennings, 333 N.C. 579, 620, 430 S.E.2d 188, 209 (describing the pecuniary gain where the trial court instructed, \u201c[I]f you find from the evidence beyond a reasonable doubt that when the defendant killed the victim, the defendant stood to benefit from the remaining partnership accounts at. . . Merrill Lynch in the name of the decedent, you would find this aggravating circumstance), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602 (1993).\nThe State cites several cases that upheld the submission of the pecuniary gain aggravating circumstance in felony murder convictions. See State v. Chandler, 342 N.C. 742, 755, 467 S.E.2d 636, 643 (holding that the pecuniary gain aggravating circumstance was properly submitted in a burglary-felony murder case), cert. denied, 519 U.S. 875, 136 L. Ed. 2d 133 (1996); Daniels, 337 N.C. at 280, 446 S.E.2d at 321 (holding that the prosecution provided sufficient evidence to support the pecuniary gain aggravating circumstance); State v. Jones, 327 N.C. 439, 452, 396 S.E.2d 309, 316 (1990) (holding that both the pecuniary gain aggravating circumstance and the course of conduct aggravating circumstance were properly submitted); State v. Williams, 317 N.C. 474, 486, 346 S.E.2d 405, 413 (1986) (holding that the pecuniary gain aggravating circumstance may be considered in a robbery-murder case). However, the State\u2019s use of these cases is misplaced, as defendant does not challenge the submission of the pecuniary gain aggravating circumstance based on robbery-felony murder in this assignment of error. Defendant finds fault with the trial court\u2019s jury instruction creating the defacto existence of the pecuniary gain aggravating circumstance if the jury found that defendant committed robbery with a dangerous weapon. None of these cases cited by the State are instructive, as they do not address defendant\u2019s specific assignment of error.\nBy instructing the jury that if it found that defendant committed robbery with a dangerous weapon, it would also find the pecuniary gain aggravating circumstance, the trial court nullified the significance of evidence tending to show that defendant did not commit the capital felony for pecuniary gain. Because the instruction did not allow the jury to consider the evidence relating to whether \u201cthe killing was for the purpose of getting money or something of value,\u201d we cannot say that this error could not have influenced the jury\u2019s finding of this aggravating circumstance. Chandler, 342 N.C. at 754, 467 at 643 (quoting Jennings, 333 N.C. at 621, 430 S.E.2d at 210). On the evidence presented, we conclude that the error in the trial court\u2019s instruction had a probable impact on the jury\u2019s recommendation of death, and it therefore constituted plain error.\nBecause the trial court\u2019s sentencing instruction improperly directed the jury to find the pecuniary gain aggravating circumstance based upon its determination that defendant committed robbery with a dangerous weapon, we are satisfied that the instruction constituted plain error. Accordingly, we vacate defendant\u2019s death sentence and remand this case to the trial court for a new capital sentencing proceeding.\nProportionality\nDefendant argues that his death sentence is disproportionate and is imposed under the influence of passion, prejudice, and other arbitrary factors. To support his contention, defendant points out that he was not the triggerman, that he was not present in the room in which the shootings took place, and that the triggerman received a life sentence. As defendant\u2019s death sentence is vacated and his case is remanded for a new capital sentencing proceeding, it is inappropriate for this Court to conduct a proportionality review. See N.C.G.S. \u00a7 15A-2000(d)(2).\nNO ERROR AS TO GUILT-INNOCENCE.\nDEATH SENTENCE VACATED; REMANDED FOR NEW CAPITAL SENTENCING PROCEEDING.", "type": "majority", "author": "ORR, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Ellen B. Seouten, Special Deputy Attorney General, for the State.", "Staples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BRANDON CABOTT JONES\nNo. 115A02\n(Filed 22 August 2003)\n1. Constitutional Law\u2014 effective assistance of counsel\u2014 motion to dismiss counsel\nThe trial court did not abuse its discretion in a double first-degree murder, robbery with a dangerous weapon, and felonious breaking or entering case by denying defendant\u2019s numerous pretrial motions to dismiss counsel based on an alleged breakdown in communication including failure to return defendant\u2019s phone calls and failure to visit defendant in almost ten months, because:\n(1) despite counsel\u2019s consistent failure to communicate personally with defendant, defendant failed to show that his counsel\u2019s actions did not meet an objective standard of reasonableness as defined by professional norms when counsel continued to communicate with defendant in writing and through his co-counsel;\n(2) counsel continued to work on defendant\u2019s case and kept close contact with his co-counsel; (3) the trial court questioned defense counsel and ascertained that he was qualified both by education and experience; and (4) our Supreme Court will not engage in a line-by-line comparison of different defendants\u2019 trials to determine whether there was ineffective assistance of counsel in any of the trials.\n2. Constitutional Law\u2014 right to testify \u2014 trial court\u2019s failure to inquire sua sponte\nThe trial court did not abuse its discretion in a double first-degree murder, robbery with a dangerous weapon, and felonious breaking or entering case by failing to inquire sua sponte whether defendant wanted to testify on his own behalf, because: (1) defendant acknowledged that our Supreme Court has never required a trial court to determine whether a defendant wants to testify on his own behalf; and (2) defendant had two defense attorneys representing his interests.\n3. Robbery\u2014 ownership of stolen property \u2014 no variance between evidence and indictment\nIn a felony murder prosecution in which armed robbery was the underlying felony, there was no variance between the evidence and the robbery indictment as to ownership of the stolen property, even though the indictment alleged that defendant took a briefcase and money \u201cfrom the presence, person, place of business, and residence of\u2019 the murder victim and the State elicited evidence of property stolen from the victim\u2019s son, where the jury could infer that the stolen briefcase belonged to the victim from testimony by the victim\u2019s wife that the briefcase contained \u201ctheir personal papers,\u201d including a marriage certificate and a marriage license.\n4. Sentencing\u2014 capital \u2014 aggravating circumstance \u2014 pecuniary gain\nThe trial court committed plain error in a double first-degree murder case by its instruction to the jury on the pecuniary gain aggravating circumstance under N.C.G.S. \u00a7 15A-2000(e)(6) and defendant is entitled to a new capital sentencing proceeding, because: (1) the trial court\u2019s sentencing instruction improperly directed the jury to find the pecuniary gain aggravating circumstance based on its determination that defendant committed robbery with a dangerous weapon; and (2) the trial court did not explain or describe to the jury what constituted pecuniary gain.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Judge Richard L. Doughton, on 15 August 2001 in Superior Court, Gaston County, upon a jury verdict finding defendant guilty of first-degree murder. On 24 June 2002, the Supreme Court allowed defendant\u2019s motion to bypass the Court of Appeals as to his appeal of additional judgments. Heard in the Supreme Court 10 March 2003.\nRoy Cooper, Attorney General, by Ellen B. Seouten, Special Deputy Attorney General, for the State.\nStaples Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0409-01", "first_page_order": 455, "last_page_order": 469 }