dissenting as to sentence.
I concur fully in the majority’s treatment of the guilt phase of this case. With respect to the sentencing phase I dissent and vote to remand for a new sentencing hearing.
A.
In my view the trial court failed to exercise sufficient control over the direct examination and cross-examination of the witness Mary Huff so that her testimony resulted in a “mini-trial” of the Georgia rape case, a phenomenon which we sought to warn against in State v. Silhan, 302 N.C. 223, 273, 275 S.E. 2d 450, 484 (1981), and which the majority today agrees should not be allowed to occur. The primary danger of the mini-trial is that it distracts the jury from its appointed task of determining whether defendant will live or die by focusing too much of its attention on the *39question of defendant’s guilt or degree of culpability in some prior crime. If permitted, the practice could also greatly extend the time required for sentencing hearings to unreasonable lengths as each prior conviction of defendant is, in turn, relitigated.
In Silhan the state at the sentencing hearing offered testimony tending to show that defendant had been convicted in another county for various crimes involving violence. The aggravating circumstance defined by G.S. 15A-2000(e)(3), that “defendant had been previously convicted of a felony involving the use or threat of violence to the person,” was not submitted to the jury. Apparently, as we concluded in Silhan, the state offered this testimony to rebut defendant’s contention that he had no significant prior criminal history. In ordering a new sentencing hearing for other reasons, we noted in Silhan that the state would be able to use these other convictions to prove the subsection (e)(3) aggravating circumstance. With concern about the state’s use of witnesses to prove the prior convictions and in order to guard against this practice except where necessary, we said in an effort to guide the trial court at the new sentencing hearing:
We note in this regard that the most appropriate way to show the ‘prior felony’ aggravating circumstance would be to offer duly authenticated court records. Testimony of the victims themselves should not ordinarily be offered unless such testimony is necessary to show that the crime for which defendant was convicted involved the use or threat of violence to the person. There should be no ‘mini-Trial’ at the sentencing hearing on the questions of whether the prior felony occurred, the circumstances and details surrounding it, and who was the perpetrator. Whether a defendant has, in fact, been convicted of a prior felony involving the use or threat of violence to a person would seem to be a fact which ordinarily is beyond dispute. It should be a matter of public record. If, of course, defendant denies that he was the defendant shown on the conviction record, the occurrence of the conviction, or that the crime involved the use or threat of violence to the person, then the state should be permitted to offer such evidence as it has to overcome defendant’s denials.
302 N.C. at 272, 275 S.E. 2d at 484 (emphasis supplied).
*40I strongly disagree with the majority that this language in Silhan “may properly be referred to as obiter dictum.” It is no more dictum than the majority’s present instruction to the trial court with regard to the proper form and instructions on what it refers to as the “fourth issue” in a capital sentencing proceeding. Indeed, the majority relies on the italicized portions of the above Silhan passage to sustain its decision here. Furthermore, the majority agrees that a mini-trial of the previous charge ought not to be permitted to occur. The majority states, and I agree, that the proper exercise of the trial judge’s authority to control both the direct examination and cross-examination of a witness “will prevent the determination of [the prior conviction] aggravating circumstance from becoming a ‘mini-trial’ of the previous charge.”
The majority concludes, however, that the trial judge in this case did properly exercise his authority to this effect. I disagree with this conclusion.
The trial judge here permitted the witness’s direct examination by the state to continue until it now occupies more than six pages in the transcript. The examination covers such details of the prior offense as the victim’s age, size and weight; marital status; victim’s residence next door to defendant’s sister; the time of the offense; defendant’s size and weight; and various details involving the act of sexual intercourse with the victim, including defendant’s statements during the act and whether defendant ejaculated. This rather extensive direct examination which would have been appropriately complete for the trial of the rape itself prompted an extensive cross-examination by defendant which occupies some nineteen pages of the record. The cross-examination ranges over such subjects as the victim’s estrangement from her husband at the time of the rape; the manner in which defendant gained entry into the victim’s home; certain prior inconsistent statements allegedly made by the victim; the victim’s alleged possession with her husband of certain pornographic movies; and the manner in which defendant exited the victim’s home.
An extremely small portion of both the direct examination and the cross-examination dealt with the question of defendant’s use or threat of violence to the victim of the Georgia rape. Although the majority agrees that this would have been the only appropriate purpose for the testimony, nevertheless it somehow *41concludes that Judge Ferrell did not commit error in allowing the wide-ranging direct examination and cross-examination on subjects irrelevant and immaterial to the only appropriate evidential inquiry. Suffice it to say that if what occurred at this sentencing hearing did not constitute a “mini-trial” on the Georgia rape conviction, then I am hard put to conceive of what would be a mini-trial.
Finally, the majority relies on State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981) (Taylor II), to sustain its decision on this point. What happened in Taylor II bears no resemblance to what happened in the instant case. Defendant in Taylor II had, in fact, been convicted of the first degree murder of Cathy King at the 25 September 1978 Session of Johnston Superior Court. State v. Taylor, 298 N.C. 405, 259 S.E. 2d 502 (1979) (Taylor I). The murder in Taylor I was prosecuted as a capital case. The record reveals that only one aggravating circumstance was submitted to the jury, ie., was the murder “especially heinous, atrocious or cruel.” Although the jury answered this aggravating circumstance affirmatively, it also found the existence of the mitigating circumstance that the murder was committed while defendant “was under the influence of mental or emotional disturbance.” The jury found beyond a reasonable doubt that the mitigating circumstance was insufficient to outweigh the aggravating and that the aggravating was sufficiently substantial to call for the imposition of the death penalty. Nevertheless, it recommended life imprisonment. This Court found no error in defendant’s conviction in Taylor I.
In Taylor II, relied on by the majority here, the state was permitted to offer the testimony of the pathologist who performed the autopsy on the body of Cathy King, the victim in Taylor I. The record in Taylor II reveals that the pathologist testified simply as follows:
I did an autopsy on the body of Cathy King on January 3, 1978. I found six separate gunshot wounds. We found two on the chest, one on the left side below the neck, and one on the right side. There was one on the left back, and there were two on the left arm and one on the right hand. The wounds were very close indicating that the gun was properly several feet away when it was fired, rather than a few *42inches. In my opinion, her death was a result of the gunshot wounds that I have described.
There was no cross-examination of the pathologist.
The brief testimony of the pathologist in Taylor II was not permitted to degenerate into a mini-trial of defendant’s guilt of the Cathy King, Taylor I, murder. Silhan was not referred to in Taylor II. There is no hint in Taylor II that this Court intended to, nor in my view did it, retreat from what it said in Silhan on this subject.
In Taylor II the state argued that it should be permitted to offer this brief testimony of the pathologist, a disinterested witness, to show not only that defendant Taylor had previously been convicted of first degree murder, but also that this murder was accompanied by an aggravating circumstance, i.e., the murder was “especially heinous, atrocious or cruel,” G.S. 15A-2000(e)(9), which qualified the murder as potentially deserving of the death penalty. This Court in Taylor II agreed essentially with this argument, holding that “[i]f the capital felony of which defendant has previously been convicted was a particularly shocking or heinous crime, the jury should be so informed.” 304 N.C. at 279, 283 S.E. 2d at 780. Taylor II does not hold that testimony will be admissible to show any and all circumstances of the commission of every crime defendant’s conviction of which is sought to be offered as an aggravating circumstance. Taylor II holds only that when the prior crime is a capital crime, i.e., first degree murder, then brief testimony will be allowed to show those agggravating and mitigating circumstances which were found by the jury in the prior case to have existed.
Finally, there was no necessity for offering any testimony for the purpose of showing that defendant’s Georgia rape conviction was a crime involving violence or threat of violence to the victim. The majority notes that defendant’s Georgia rape conviction was obtained under section 16-6-l(a) of the Georgia Code which provides, “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will . . . .” Ga. Code Ann. § 16-6-1(a) (1982). This Court said, moreover, in Taylor II, 304 N.C. at 279, 283 S.E. 2d at 780: “Nothing else appearing, rape involves the use or threat of violence to the person.” Thus, defendant’s Georgia rape conviction was “of a felony involving the *43use or threat of violence to the person” as a matter of law. Defendant’s stipulation that he had been so convicted was in law also a stipulation that the crime involved violence or threat of violence to the person.
There being no necessity then for the state to prove this element through the testimony of witnesses, I think it was error prejudicial to defendant to permit any testimony at all on this point.
The Fair Sentencing Act, now our statutory scheme for sentencing most classes of felons, was recently enacted by our General Assembly. See Comment, The North Carolina Fair Sentencing Act, 60 N.C. L. Rev. 631, 631 n. 1 (1982). It supports my position that testimony in a capital sentencing hearing should be permitted on the prior conviction aggravating circumstance only if necessary to show that the prior conviction did involve the use or threat of violence or that a prior conviction for first degree murder was accompanied by statutory aggravating or mitigating circumstances, or both. This Act provides for presumptive sentences to be imposed for each felony conviction unless aggravating or mitigating circumstances are shown which might justify a greater or a lesser sentence. One of the statutory aggravating circumstances is that “[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days’ confinement.” G.S. 15A-1340.4(a)(l)(o). Subsection (e) of this statute provides:
A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.
Because the legislature has so clearly stated its intent as to how prior convictions should ordinarily be proved in the Fair Sentencing Act, I am satisfied the legislature had a similar intent with regard to the proof of prior felony convictions in our capital punishment sentencing statute.
*44State v. McCormick, 397 N.E. 2d 276 (Ind. 1979), also supports my position on this question. In McCormick the Indiana Supreme Court considered provisions of the Indiana capital sentencing statute which permitted the state to prove as aggravating circumstances the following (numbered as they appear in the statute):
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder.
(9) The defendant was under a sentence of life imprisonment at the time of the murder.
397 N.E. 2d at 278 (citing Ind. Code § 35-50-2-9(b) (Burns 1979)). The Indiana Supreme Court concluded that subsection eight of the sentencing statute violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court reasoned that this subsection would permit the state to try during the sentencing phase of a capital case another, unrelated murder. The Court concluded that this procedure would be so inflammatory and impermissibly prejudicial in the sentencing phase it would deny defendant due process. The Court considered subsection eight to be qualitatively different from subsections seven and nine of the statute. It said, 397 N.E. 2d at 280-81:
Similarly, evidence introduced to prove subparts (7) and (9) also does not carry with it the emotional and prejudicial impact which would cause the death penalty to be imposed capriciously. Gregg v. Georgia, (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859. Subparts (7) and (9) concern whether ‘[t]he defendant has been convicted of another murder’ and whether ‘[t]he defendant was under a sentence of life imprisonment at the time of the murder.’ Evidence of these aggravating circumstances will almost always be in the form of court or prison records. Unlike a complete presentation of evidence regarding an unrelated murder, this evidence, in the context of this sentencing procedure, would not be of an inflammatory and improperly prejudicial nature. See Spencer v. Texas, (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed. 2d 606.
*45Thus, permitting the sentencing phase of a capital case to degenerate into a mini-trial or retrial of a previous offense, as happened here, may raise serious constitutional questions. Clearly, permitting such a retrial is contrary to the legislature’s intent.
B.
For the reasons stated in my dissenting opinion in State v. Pinch, 306 N.C. 1, 38, 292 S.E. 2d 203, 230, cert. denied, — U.S. —, 74 L.Ed. 2d 622, 103 S.Ct. 474 (1982), I also disagree with the majority’s position that it was not error for the trial judge to instruct the jury that it had a duty to recommend death if it answered the various issues submitted favorably to the state. I continue to think that a jury never has a duty to recommend death no matter how it answers the issues. It may not recommend death unless it answers the issues in a certain way. Even if it answers these issues that way, however, the jury ought still be permitted to recommend life as, indeed, juries did in State v. King, 301 N.C. 186, 270 S.E. 2d 98 (1980), and State v. Taylor, supra, 298 N.C. 405, 259 S.E. 2d 502 (Taylor I).
C.
I concur with the majority’s view of the manner in which the issues should be submitted in a capital case as set out in Part III D of its opinion. I believe, however, that the trial judge’s formulation of and instruction on the fourth issue constituted error entitling defendant to a new sentencing hearing. The jury was told on this issue to determine the substantiality of the aggravating circumstances standing alone and without regard to and not discounted by the mitigating circumstances.
Justice Stevens, in a concurring opinion on a denial of certiorari, Pinch v. North Carolina, — U.S. —, 74 L.Ed. 2d 622-23, 103 S.Ct. 474, 475 (1982), cautioned that such an instruction might be contrary to the holding in Lockett v. Ohio, 438 U.S. 586 (1978). He wrote:
In each of these three capital cases the trial judge instructed the jury that it had a duty to impose the death penalty if it found: (1) that one or more aggravating circumstances existed; (2) that the aggravating circumstances were sufficiently substantial to call for the death penalty; and (3) that the aggravating circumstances outweighed the miti*46gating circumstances. There is an ambiguity in these instructions that may raise a serious question of compliance with this Court’s holding in Lockett v Ohio, 438 US 586, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (1978).
On the one hand, the instructions may be read as merely requiring that the death penalty be imposed whenever the aggravating circumstances, discounted by whatever mitigating factors exist, are sufficiently serious to warrant the extreme penalty. Literally read, however, those instructions may lead the jury to believe that it is required to make two entirely separate inquiries: First, do the aggravating circumstances, considered apart from the mitigating circumstances, warrant the imposition of the death penalty? And second, do the aggravating circumstances outweigh the mitigating factors? It seems to me entirely possible that a jury might answer both of those questions affirmatively and yet feel that a comparison of the totality of the aggravating factors with the totality of mitigating factors leaves it in doubt as to the proper penalty. But the death penalty can be constitutionally imposed only if the procedure assures reliability in the determination that ‘death is the appropriate punishment in a specific case.’ Lockett, supra, 438 US, at 601, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (plurality opinion), quoting Woodson v North Carolina, 428 US 280, 305, 49 L Ed 2d 944, 96 S Ct 2978 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
The petitions for certiorari in these three cases request the Court to review the decision of the Supreme Court of North Carolina affirming the death penalty in each case. I do not criticize the Court’s action in denying certiorari because the question whether the instructions to the juries are consistent with Lockett remains open for consideration in collateral proceedings. Moreover, even if relief may not be warranted in these cases, the North Carolina judiciary may find it appropriate to make slight changes in the form of its instructions to avoid the ambiguity I have identified.
— U.S. —, 74 L.Ed. 2d at 622-23, 103 S.Ct. at 474-75 (footnote omitted).
*47The majority recognizes that this kind of instruction is not contemplated by the statute. Justice Stevens is of the opinion that it may be unconstitutional. I agree with both of these positions and would give defendant a new sentencing hearing on the strength of this error committed by the trial judge.