{
  "id": 8523275,
  "name": "STATE OF NORTH CAROLINA v. AVERY RAY HAMMONDS",
  "name_abbreviation": "State v. Hammonds",
  "decision_date": "1983-04-05",
  "docket_number": "No. 8226SC962",
  "first_page": "615",
  "last_page": "616",
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    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "cite": "270 N.C. 215",
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1978,
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    {
      "cite": "295 N.C. 66",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1978,
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  "last_updated": "2023-07-14T21:13:54.976609+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Whichard and Braswell concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. AVERY RAY HAMMONDS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant first contends that the trial court erred in not allowing witness Jones to testify on cross-examination about the victim\u2019s reputation for violence. A victim\u2019s 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 \u00a7 106 (2d Rev. Ed. 1982). When witness Jones was cross-examined no evidence of self-defense existed. Consequently, the victim\u2019s reputation for violence was irrelevant at that time, and the trial judge correctly excluded that reputation evidence.\nDefendant 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. \u00a7 15A-1340.4(a)(l) states, \u201cEvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .\u201d 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.\nSimilarly, defendant\u2019s use of a deadly weapon cannot be an aggravating factor when it is also an element of the offense.\nThese errors in finding factors in aggravation require a new sentencing hearing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983).\nRemanded for resentencing.\nJudges Whichard and Braswell concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General W. A. Raney, Jr. for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender Nora B. Henry for the defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. AVERY RAY HAMMONDS\nNo. 8226SC962\n(Filed 5 April 1983)\n1. Assault and Battery \u00a7 13\u2014 victim\u2019s reputation for violence \u2014exclusion proper\nThe trial court in a felonious assault case properly refused to permit a witness to testify on cross-examination about the victim\u2019s reputation for violence where no evidence of self-defense existed when the witness was cross-examined.\n2. Criminal Law \u00a7 138\u2014 felonious assault \u2014 aggravating factors \u2014 heinous, atrocious and cruel behavior \u2014 use of deadly weapon\nIn imposing a sentence upon defendant for assault with a deadly weapon inflicting serious injury, the trial court erred in finding heinous, atrocious and cruel behavior as an aggravating factor since there was no evidence of such factor apart from the evidence proving the elements of the crime. Similarly, defendant\u2019s use of a deadly weapon could not be considered as an aggravating factor since it was also an element of the offense. G.S. 15A-1340.4(a)(l).\nAppeal by defendant from Howell, Judge. Judgment entered 2 March 1982 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 10 March 1983.\nThe defendant was charged in a proper bill of indictment with assaulting Patrick Kennedy with a deadly weapon (a pistol) with intent to kill and inflicting serious bodily injury.\nThe defendant pleaded not guilty, and was found guilty of assault with a deadly weapon inflicting serious injury.\nFrom a judgment imposing a prison sentence of ten years, defendant appealed.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General W. A. Raney, Jr. for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Nora B. Henry for the defendant, appellant."
  },
  "file_name": "0615-01",
  "first_page_order": 647,
  "last_page_order": 648
}