STATE of North Carolina
v.
Otto WITHERS, Jr.
No. 287A83.
Supreme Court of North Carolina.
August 28, 1984.*214 Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender by Lorinzo L. Joyner, Asst. Appellate Defender, Raleigh, for defendant-appellant.
BRANCH, Chief Justice.
By his first assignment of error, defendant contends he is entitled to a new trial because of the trial judge's exclusion of certain testimony offered by defendant's sister, Delores Withers.
Delores testified that she arrived at her brother's apartment shortly after the shooting incidents on 4 July. She stated that Kathryn Hartsoe remarked to her at that time and again at the hospital that the shooting was an accident. She further testified as follows:
Q. When Kathryn kept saying it was an accident, did she say who she was referring to?
A. She did not.
Q. Was she talking about anybody just previous to that?
A. She was talking about my brother. She asked me how was he doing, and she kept saying "Well, it was an accident" and I didn't question her as to what she meant. I assumed, I was assuming the wrong thing, that she was speaking of her husband. I thought that they had come in and shot them all up. That is what I thought when she kept saying it was an accident.
Q. But she had been talking about Otto right before she made that statement?
Mr. Reeves: Well, objection to the whole line of questioning.
The Court: Sustained.
Mr. Reeves: Move to strike all of it, Your Honor.
The Court: Well, you know, well, Objection Sustained.
Defendant argues that sustaining the State's objection to the "whole line of questioning" was prejudicial error, although he concedes that had the State's objection been directed to Delores' final answer in which she "assumed" who Kathryn was referring to, it would have been properly sustained.
*215 We note initially that it is entirely unclear whether the trial judge in fact sustained the State's objection to the "whole line of questioning," or whether he intended to rule only on the testimony dealing with Delores' speculation as to what Kathryn meant when she spoke of the "accident." The trial judge never clearly ordered the evidence striken, nor did he instruct the jury to disregard any portion of the testimony referring to Kathryn's characterization of the incident as an "accident." In fact, in his recapitulation of the evidence during final instructions to the jury, the trial judge stated unequivocally that the jury could consider Delores' testimony that Ms. Hartsoe said the shooting was an accident.
Considering the equivocal nature of the trial judge's ruling, the fact that the jury was never instructed to disregard evidence of Kathryn's references to the shootings as an accident, and that the trial judge later instructed in his recapitulation of the evidence that the jury could consider Kathryn's statements in their deliberations, we are of the opinion that any error by the trial judge in sustaining the State's objection to Delores Withers' testimony was not prejudicial to defendant. This assignment is overruled.
Defendant next contends that the sentence imposed upon his conviction of assault with a deadly weapon with intent to kill was imposed in violation of G.S. 15A-1334.
Upon defendant's conviction of first-degree murder, the trial court conducted a sentencing hearing as required by G.S. 15A-2000 et seq., to determine defendant's punishment. During this hearing, both the State and defendant presented evidence pertaining to issues relevant to sentencing. This included testimony concerning defendant's prior convictions, his behavior while confined in prison and while on parole and his previous work experience. Defendant also offered testimony relating to his prior family history. After considering the evidence presented at this hearing, the jury recommended that defendant be sentenced to life imprisonment for the first-degree murder of Roberta Hartsoe. Immediately after imposing a sentence of life imprisonment on the first-degree murder conviction and without conducting a second sentencing hearing, the trial judge sentenced defendant to ten years' imprisonment on his conviction of assault with a deadly weapon with intent to kill. He found as aggravating factors pursuant to G.S. 15A-1340.4(a)(1)o that defendant had two prior convictions for criminal offenses punishable by more than 60 days' confinement, to wit, a prior conviction for first-degree murder in 1966 and a conviction of assault with intent to commit rape in 1968.
Defendant takes the position that G.S. 15A-1334 required the trial judge to conduct a second sentencing hearing before imposing a sentence upon defendant's conviction for assault with a deadly weapon with intent to kill. General Statute 15A-1334 requires the trial court to conduct a sentencing hearing on all felonies other than capital felonies with each party having the right to present relevant evidence with full opportunity for cross-examination. The defendant must also be given the opportunity to make a statement if he so desires.
We are not persuaded by defendant's argument that he is entitled to a new sentencing hearing on the assault conviction for failure of the trial judge to conduct a sentencing hearing limited only to this crime. We are convinced that the full sentencing hearing before the judge and jury on the first-degree murder charge was sufficient to afford defendant all that he was entitled to under G.S. 15A-1334, particularly where, as here, defense counsel did not object to the failure to conduct a second hearing at trial. The two crimes with which defendant was here charged were committed contemporaneously and therefore all evidence adduced at the sentencing hearing on the first-degree murder conviction pertaining to factors in aggravation or mitigation was-equally applicable to the assault conviction. It would be a monumental waste of judicial time and energy to *216 require the trial judge to conduct a second hearing wherein exactly the same evidence would again be presented.
We hold that the trial judge did not err in failing to conduct a second sentencing hearing pertaining only to defendant's conviction of assault with a deadly weapon with intent to kill. The record plainly supports the trial judge's finding in aggravation that defendant had previously been convicted of two offenses punishable by more than 60 days' confinement. The judge therefore acted within his discretion in imposing the maximum sentence for defendant's commission of this crime. See State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
By this same assignment of error, defendant argues that it was error for the trial judge to use the prior convictions of first-degree murder and assault with intent to commit rape as factors in aggravation of his current conviction for assault with a deadly weapon with intent to kill. He argues that under the factual circumstances of this case, the use of these prior convictions to aggravate the assault charge violated the statutory mandate that "[e]vidence necessary to prove an element of the offense may not be used to prove any factor in aggravation,...." G.S. 15A-1340.4(a)(1).
At trial, the prosecution presented evidence that defendant had been accused of engaging in sexual misconduct with Roberta Hartsoe. There was further evidence that defendant was fearful that if this misconduct were revealed to the police, his parole would be revoked. The State therefore theorized that defendant murdered Roberta Hartsoe and attempted to kill Kathryn because he was afraid they would initiate prosecution and he would lose his parole status.
From this, defendant argues that evidence of his prior convictions was admitted to prove intent to kill in the assault charge and premeditation and deliberation in the first-degree murder charge, and therefore this same evidence could not be used to aggravate the sentence received upon his conviction of felonious assault.
We simply do not agree with defendant's assertion that his prior convictions were used to establish an element of the crimes charged in the instant case. It is true the State argued that defendant's fear of losing his parole status was relevant to the issues of premeditation and deliberation and formation of the intent to kill. The prior convictions were therefore admitted to show why defendant was on parole and what would happen if his parole were revoked. Although the earlier offenses were relevant to establishing defendant's parole status, it was defendant's fear that his parole would be revoked and not the earlier offenses themselves which was used as evidence to support the elements of premeditation and deliberation and intent to kill. This assignment is overruled.
Finally, defendant contends that the procedure established in G.S. 15A-2000(a)(2) for "death-qualifying" a jury prior to the guilt phase of the trial and requiring the same jury to hear both the guilt and penalty phases of the trial is unconstitutional. We have consistently rejected this contention and are not persuaded by the arguments advanced by defendant that our prior decisions on this issue are erroneous. Therefore, on the authority of State v. Hinson, 310 N.C. 245, 311 S.E.2d 256 (1984) and State v. Williams, 305 N.C. 656, 292 S.E.2d 243, cert. denied, 456 U.S. 932, 102 S. Ct. 1985, 72 L. Ed. 2d 450 (1982), reh'g. denied, 459 U.S. 1189, 103 S. Ct. 839, 74 L. Ed. 2d 1031 (1983), this assignment is dismissed.
Defendant received a fair trial free of prejudicial error.
NO ERROR.