State v. Hammonds

301 S.E.2d 457 (1983)

STATE of North Carolina v. Avery Ray HAMMONDS.

No. 8226SC962.

Court of Appeals of North Carolina.

April 5, 1983.

*458 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. W.A. Raney, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Nora B. Henry, Raleigh, for defendant-appellant.

HEDRICK, Judge.

Defendant first contends that the trial court erred in not allowing witness Jones to testify on cross-examination about the victim's reputation for violence. A victim's reputation for violence is relevant after the self-defense issue has been raised. State v. Barbour, 295 N.C. 66, 243 S.E.2d 380 (1978); State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967); 1 Brandis on North Carolina Evidence § 106 (2d Rev.Ed.1982). When witness Jones was cross-examined no evidence of self-defense existed. Consequently, the victim's reputation for violence was irrelevant at that time, and the trial judge correctly excluded that reputation evidence.

Defendant next contends that the trial court erred in finding two of the three factors in aggravation. First, defendant argues that there was no evidence that the offense was especially heinous, atrocious and cruel, and that the same evidence used to find this aggravating factor was used to prove the serious injury element of the offense. The evidence showed that defendant approached the victim without provocation and shot him in the face. The use of a deadly weapon and the seriousness of injury involved here may be evidence of an especially heinous, atrocious and cruel crime. However, the same evidence proved the deadly weapon and serious injury elements of the crime. N.C.Gen.Stat. § 15A-1340.4(a)(1) states, "Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation...." The trial court erred in finding heinous, atrocious and cruel behavior as an aggravating factor since there was no evidence of it apart from that evidence proving the elements of the crime.

Similarly, defendant's use of a deadly weapon cannot be an aggravating factor when it is also an element of the offense.

These errors in finding factors in aggravation require a new sentencing hearing. State v. Ahern, 307 N.C. 584, 300 S.E.2d 689 (1983).

Remanded for resentencing.

WHICHARD and BRASWELL, JJ., concur.