{ "id": 8522969, "name": "STATE OF NORTH CAROLINA v. LARRY JAMES ATKINS", "name_abbreviation": "State v. Atkins", "decision_date": "1984-01-17", "docket_number": "No. 838SC517", "first_page": "67", "last_page": "73", "citations": [ { "type": "official", "cite": "66 N.C. App. 67" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "786" }, { "page": "787" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "414" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "307 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527103 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0500-01" ] }, { "cite": "301 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566406, 8566313, 8566377, 8566444, 8566350 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0700-04", "/nc/307/0700-01", "/nc/307/0700-03", "/nc/307/0700-05", "/nc/307/0700-02" ] }, { "cite": "298 S.E. 2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "60 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519662 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/60/0140-01" ] }, { "cite": "104 S.Ct. 491", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "78 L.Ed. 2d 685", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "52 U.S.L.W. 3422", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1983, "opinion_index": 0 }, { "cite": "304 S.E. 2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705185, 4708995, 4708841, 4705295, 4706902 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0679-05", "/nc/308/0679-02", "/nc/308/0679-01", "/nc/308/0679-04", "/nc/308/0679-03" ] }, { "cite": "300 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521537 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0421-01" ] }, { "cite": "268 S.E. 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "306 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "786" } ], "opinion_index": 1 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc/309/0410-01" ] } ], "analysis": { "cardinality": 676, "char_count": 13829, "ocr_confidence": 0.79, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.437881127432526 }, "sha256": "4e975e88e3d6bd75a80e6d5ceda5c8e86a4d5c527bb235d61cfcf6bfe22f9fee", "simhash": "1:83dc96ac2d66045c", "word_count": 2290 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Hedrick concurs.", "Judge Eagles concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. LARRY JAMES ATKINS" ], "opinions": [ { "text": "HILL, Judge.\nDefendant brings forward four assignments of error relating to the trial court\u2019s instructions to a \u201cdeadlocked\u201d jury and to the trial court\u2019s findings of factors in aggravation pursuant to the Fair Sentencing Act. We have reviewed each of these assignments and find no error.\nThe State\u2019s evidence tends to show that at approximately 6:20 a.m. on 22 May 1982, the prosecutrix was awakened by a man sitting on the edge of her bed. When the prosecutrix screamed, the intruder attempted to cover her mouth and told her he was going to hurt her if she did not shut up. After a two minute struggle with the prosecutrix, the man made the prosecutrix turn over on her stomach, placed a pillow over the back of her head and a sheet over her, and entered her rectum with his penis. After the man left, the prosecutrix went to her next door neighbor\u2019s and had her next door neighbor call the police.\nThe prosecutrix described her assailant to the first reporting police officer, Sgt. Sharp, as being approximately 5T0\" tall, and 185 pounds in weight. The assailant was wearing bright red pants and a dark-colored shirt. The assailant had long, curly hair.\nWhile taking the prosecutrix to the hospital, Sgt. Sharp observed a black man fitting the description given by the prose-cutrix exiting a convenience store a short distance from the pros-ecutrix\u2019s apartment. Sgt. Sharp asked the prosecutrix if that man was her assailant and she said, \u201cYes, that\u2019s him.\u201d The man, the defendant, had on red knit pants, and a dark colored shirt. He had long curly hair and the zipper on his pants was open. The prose-cutrix identified the defendant in court as her assailant.\nA rectal examination performed upon the prosecutrix later that morning revealed several small fissures in the skin around the prosecutrix\u2019s anus and one fairly large fissure in the posterior wall of the anus. A rectal smear taken from the prosecutrix and the prosecutrix\u2019s t-shirt that she was wearing at the time of the attack both tested positive for the presence of spermatozoa.\nDefendant presented no evidence, except to question the prosecutrix\u2019s identification of her assailant, by showing through cross-examination, that the bedroom was not well-lighted by the morning sun, that the prosecutrix was disoriented, having just been awakened, and that the prosecutrix only observed her assailant for two minutes while struggling with him.\nAfter retiring to deliberate at 4:05 p.m., the jury returned to the courtroom at 4:42 p.m. and asked the trial judge whether they would have to find the defendant guilty if they were unable to reach an unanimous verdict. The court told the jurors that any decision they made, whether guilty or not guilty, had to be unanimous. When the jury foreman indicated that the court\u2019s response did not answer the jury\u2019s question, the court further instructed the jury as follows:\nNow ladies and gentlemen, your foreman has informed me that so far you have been unable to reach a verdict in this case. I want to emphasize to you the fact it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women, and to reconcile your differences, if you can, without the surrender of any conscious conviction. No juror should surrender his honest conviction to the weight of the effect of the evidence solely because of the opinion of his fellow jurors as to the mere purpose of returning a verdict. I will let you now resume your deliberations to see if you cannot reach a verdict.\nAfter ascertaining the numerical division of the jury, 6-6, the trial court dismissed the jurors at 4:47 p.m. to deliberate further. The jurors deliberated until 5:19 p.m., when they were excused to go home. The next morning the jurors began deliberations at 9:31 a.m. and returned with their verdict of guilty on both charges at 9:54 a.m.\nDefendant contends that the trial court erred in refusing to give his requested instruction that in the event that the jurors were unable to reach a unanimous decision, they should communicate it to the court, and the court would take appropriate action. Defendant also argues that the court should have instructed the jury that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors.\nAlthough it would have probably been better practice for the trial court to have given the aforementioned instructions, the trial court\u2019s failure to give them does not constitute prejudicial error under the circumstances of this case. See State v. Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980). The jury had been gone only 37 minutes when they returned with a question. This hardly indicates that the jury was hopelessly deadlocked. The charge the court gave made it clear that a juror was to discuss the matter with the other jurors and to reconcile their differences, but not to surrender his convictions purely for the sake of arriving at an unanimous verdict. This Court recently upheld a charge identical to the one given in the present case in State v. Sandlin, 61 N.C. App. 421, 300 S.E. 2d 893, disc. rev. denied, 308 N.C. 679, 304 S.E. 2d 760, cert. denied, 52 U.S.L.W. 3422, 78 L.Ed. 2d 685, 104 S.Ct. 491 (1983). The charge contains no element of coercion which would require a new trial.\nWe also reject defendant\u2019s argument that a judicial inquiry into the numerical division of a deliberating jury has a coercive effect and should be prohibited in every case. This argument was not made the subject of any assignments of error or exceptions in the record, and therefore this issue is not properly before this Court. N.C. App. R. 10(a); State v. Kidd, 60 N.C. App. 140, 298 S.E. 2d 406 (1982), disc. rev. denied, 307 N.C. 700, 301 S.E. 2d 393 (1983). Even if the issue was properly raised, this Court rejected an identical argument in State v. Yarborough, 64 N.C. App. 500, 307 S.E. 2d 794 (1983). In Yarborough we held that the appellate court must examine the trial court\u2019s inquiry in the context of the totality of the circumstances to determine whether the trial judge\u2019s inquiry was coercive or whether the jury\u2019s verdict was in any way affected by the inquiry. Considering the circumstances of this case, of a 6-6 vote after only 37 minutes of deliberation, we conclude that the trial court\u2019s inquiry was not coercive and did not affect the jury's verdict.\nDefendant\u2019s remaining assignments of error relate to the trial court\u2019s findings of factors in aggravation pursuant to the Fair Sentencing Act. These assignments are overruled.\nDefendant first contends that the trial court erred, in sentencing defendant for second degree sexual offense, in finding as an aggravating factor that the offense was especially heinous, atrocious or cruel, on the ground that the finding was not supported by a preponderance of the evidence. We disagree.\nIn State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983) our Supreme Court recently announced a test for determining whether an offense was especially heinous, atrocious, or cruel for the purposes of the Fair Sentencing Act. The Court stated that \u201cthe focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense. \u201d (Emphasis theirs.) 309 N.C. at 414, 306 S.E. 2d at 786. The court went on to state, \u201cwe do not consider it inappropriate in any case to measure the brutality of the crime by the extent of the physical mutilation of the body of the deceased or surviving victim.\u201d 309 N.C. at 415, 306 S.E. 2d at 787.\nFor the purposes of sentencing under the Fair Sentencing Act, a preponderance of the evidence\ndoes not mean number of witnesses or volume of testimony, but refers to the reasonable impression made upon the [mind] of the [sentencing judge] by the entire evidence, taking into consideration the character and demeanor of the witnesses, their interest or bias and means of knowledge, and other attending circumstances. . . .\nState v. Ahearn, 307 N.C. 584, 596, 300 S.E. 2d 689, 697 (1983), quoting 2 Stansbury\u2019s North Carolina Evidence \u00a7 212 (Brandis Rev. 1973). Unquestionably, the prosecutrix\u2019s anus was mutilated as the record shows that the prosecutrix sustained several small fissures in the skin around her anus and one fairly large fissure at the posterior wall of the anus. The placement of the pillow over the prosecutrix\u2019s head, thereby adding to the prosecutrix\u2019s ordeal, was an activity not normally present in a sexual offense. The prosecutrix could have smothered to death. Finally, the sentencing judge was best able to judge the demeanor of the victim. We hold that the trial court\u2019s finding was supported by the preponderance of the evidence.\nDefendant\u2019s final argument is that the trial court erred in finding as an aggravating factor that defendant had prior convictions for offenses punishable by more than 60 days imprisonment because there was no evidence or findings of fact as to defendant\u2019s indigency or representation by counsel at the time of the prior convictions. We reject this argument since defendant did not object to the admission of evidence of his prior convictions and did not raise the issue of indigency and lack of counsel at the sentencing hearing. State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983).\nIn the trial and sentence of defendant, we find\nNo error.\nJudge Hedrick concurs.\nJudge Eagles concurs in part and dissents in part.", "type": "majority", "author": "HILL, Judge." }, { "text": "Judge EAGLES\nconcurring in part and dissenting in part.\nI concur with the majority that the trial was without prejudicial error but respectfully dissent from the portion of the majority opinion which holds that the trial court could properly consider as an aggravating factor its finding that \u201cthe offense was especially heinous, atrocious or cruel.\u201d\nThe loathsome nature of the defendant\u2019s misconduct is without dispute but in light of our Supreme Court\u2019s decisions in State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983), and State v. Blackwelder, 309 N.C. 410, 306 S.E. 2d 783 (1983), I am constrained to say that the conduct of the defendant, while repulsive, brutal, painful and injurious to the victim, was nevertheless not \u201cespecially heinous, atrocious or cruel\u201d for purposes of the Fair Sentencing Act. The majority seems to disregard the Blackwelder requirement that \u201cthe focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.\" (Emphasis theirs.) \u2014 N.C. at \u2014, 306 S.E. 2d at 786. While an assault culminating in forced non-consensual anal intercourse under the facts here is undoubtedly physically painful, psychologically damaging and dehumanizing, there is no evidence in this record to show that the misconduct here was any worse than \u201cnormally present in that offense.\u201d I would vote to remand for resentencing.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge EAGLES" } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LARRY JAMES ATKINS\nNo. 838SC517\n(Filed 17 January 1984)\n1. Criminal Law \u00a7 122\u2014 additional instructions concerning inability to reach verdict \u2014 no prejudicial error\nAlthough it would have been the better practice for the trial court to give an additional instruction requested by defendant that in the event that the jurors were unable to reach a unanimous decision, they should communicate it to the court, and the court would take appropriate action, the trial court\u2019s failure to give such instruction did not constitute prejudicial error under the circumstances of the case since the jury had been gone only 37 minutes when they returned with a question, and the charge the court gave made it clear that a juror was to discuss the matter with the other jurors and to reconcile their differences, but not to surrender his convictions purely for the sake of arriving at a unanimous verdict.\n2. Criminal Law \u00a7 122.2\u2014 inquiry into numerical division of jury \u2014 proper\nA judicial inquiry into the numerical division of the deliberating jury after the jury had been deliberating only 37 minutes was not coercive and did not affect the jury\u2019s verdict.\n3. Criminal Law \u00a7 138\u2014 second degree sexual offense \u2014 aggravating factor that offense especially heinous, atrocious, or cruel properly submitted\nIn a prosecution for a second degree sexual offense, the aggravating factor that the offense was especially heinous, atrocious, or cruel was supported by the evidence where the record showed that the prosecutrix sustained several small fissures in the skin around her anus and one fairly large fissure at the posterior wall of the anus and that a pillow was placed over the prose-cutrix\u2019s head while the offense was being committed.\n4. Criminal Law \u00a7 138\u2014 aggravating factor \u2014 prior convictions properly submitted\nThere was no merit to defendant\u2019s argument that the trial court erred in finding as an aggravating factor that defendant had prior convictions for offenses punishable by more than 60 days\u2019 imprisonment where defendant did not object to the admission of evidence of his prior convictions and did not raise the issue of indigency and lack of counsel at the sentencing hearing.\nJudge Eagles concurring in part and dissenting in part.\nAppeal by defendant from Llewellyn, Judge. Judgment entered 20 October 1982 in Superior Court, Wayne County. Heard in the Court of Appeals 8 December 1983.\nDefendant was tried and convicted of felonious breaking and entering and second degree sexual offense. He was sentenced to consecutive prison terms of eight years for breaking and entering and of sixteen years for second degree sexual offense.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Richard L. Kucharski, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for the defendant." }, "file_name": "0067-01", "first_page_order": 99, "last_page_order": 105 }