State v. Perkins
This text of 173 S.E.2d 583 (State v. Perkins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The major exception assigned is that the judge expressed an opinion to the jury about the case in the following colloquy:
“Q Now, Mr. Perkins, you are accused of having had sex relations with your daughter on the 26th day of June, 1967. Now, did you have sex relations with your daughter?
A Not to my knowledge, no, sir.
COURT: You would know, wouldn’t you?
A Sir?
COURT: You would know it, wouldn’t you?
A I would think I would know if I did.
COURT: Answer the question correctly.
No, I did not have sex relations with my daughter on that date. . . .”
The defendant contends that the statement “answer . . . correctly,” implies that the trial judge was saying that the defendant was not answering “truthfully.” We do not feel that such is the implication; and under the circumstances, this statement by the trial judge was not prejudicial. First, he subsequently answered the question, “No.” Secondly, the question was posed by defendant’s own counsel and he should not now complain that he was asked to answer it. Defendant does not attack the statement on the basis that it was self-incriminating, but rather attacks the conduct of the trial judge. We do not find this to have been prejudicial error. See State v. Hoyle, 3 N.C. App. 109, 164 S.E. 2d 83 (1968).
Perkins asserts that if the above statement alone was not prejudicial, then that, plus the following two statements were:
1. “CHARGE OF THE COURT
BAILEY, J.: Ladies and Gentlemen of the Jury, let me thank you first for the attention you have given to this rather disagreeable case and for the attention you have paid the evidence and to the lawyers in the case.”
2. “DEFENDANT PERKINS: I want to make a statement.
MR. BURT: May it please the Court, the defendant wishes to make a statement at this time.
COURT: That will not be permitted. Ladies and gentlemen of the jury, I will ask you to go to your jury room. I will see what this is about.
[679]*679THE JURY IS EXCUSED FROM THE COURTROOM AND OUT OF THE PRESENCE OF THE JURY THE FOLLOWING PROCEEDINGS WERE HAD:
* # -X- *X*
“(Mr. Burt confers with the defendant.)
MR. BURT: May it please the Court, he wishes to make the statement that he is not satisfied with his defense in this case.
THE COURT: Mr. Perkins?
DEFENDANT PERKINS: Yes.
THE COURT: I want this in the record, Mrs. Tilley. You have had three lawyers assigned to you since you have been charged with this crime. I believe you have objected to all of them. I assigned you Mr. Burt because I believe and do believe now that he is one of the ablest lawyers at the Durham Bar. Now, I am not going to permit you to pick and choose lawyers to be paid by the State of North Carolina. I have done the best I can in giving you a good lawyer. I would be content to be represented by Mr. Burt myself. Now, you will take him and you will like him. You can sit down. You will bring the jury back.”
We disagree. In the first instance, the court merely thanked the jury for their service in connection with a “disagreeable” type of case — not necessarily a “disagreeable” defendant. State v. Phillips, 5 N.C. App. 353, 168 S.E. 2d 704 (1969). In the second instance, the court did ho more than indicate, within the hearing of the jury, that á certain procedure vrould be followed. The latter amounts to a judge’s cautioning the defendant’s attorney about the use of improper procedure, which is entirely within the province of the trial judge. Defendant’s assignment of error regarding his objection to appointed counsel is without merit. State v. Moore, 6 N.C. App. 596, 170 S.E. 2d 568 (1969).
Defendant also questions the propriety of allowing the Solicitor to “wave” letters before the jury after objections to their admission into evidence had been sustained. The record shows only that some letters were offered as State’s exhibits after they were identified as letters from the defendant, and then the following occurred:
“Q This is State’s Exhibit 3; do you recognize that?
A Yes, I do.
[680]*680Q What is that?
A It is a letter I received from my husband through the mail.
Q When did you receive that?
A I received it in — on July 17, 1967.
Q Is that letter and all of the parts thereof in your husband’s handwriting?
A Yes, they are all in my husband’s handwriting (examining the letter).
A I would like to introduce that into evidence, if your Honor please.
OBJECTION — SUSTAINED.
Q Now, I would like to have this item identified as State’s Exhibit 4 and ask this witness whether she recognizes State’s Exhibit 4?
A Yes, it is his handwriting. I received it through mail.
(Envelope containing letter postmarked Durham, July 5, 1967, is marked for identification as STATE’S EXHIBIT No. 4.)
COURT: What did she say it was, letter received from the defendant on when?
A July the 5th, 1967.
MR. EDWARDS: I think I will have no further questions at this time. What I would like to do in State’s Exhibit 4, which has been identified as being one of the letters that she received from the defendant, this one on July 5, 1967, I would like to tender that in evidence.
OBJECTION — SUSTAINED.”
The Solicitor cannot be faulted for attempting to get evidence into the record. The defendant’s objections were sustained and the record shows no prejudice to the defendant. State v. Butler, 269 N.C. 483, 153 S.E. 2d 70 (1967).
The following two dialogues are also complained of by the appellant (the first during Carolyn’s and the second during Mrs. Perkins’ testimony):
1. “Q Now, Carolyn, had he done this before to you?
A Yes, sir.
[681]*681OBJECTION — OVERRULED.
Q How often, approximately?
A I don’t know, but from what I remember it was six or seven.
Q About six or seven times?
A Or more.
Q When did he start doing this to you?
A About a year ago this summer.
Q About a year ago?
A Yes, sir.”
2. “Q Did you ask her whether it had ever happened to her before?
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
173 S.E.2d 583, 7 N.C. App. 675, 1970 N.C. App. LEXIS 1756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perkins-ncctapp-1970.