{ "id": 8552653, "name": "STATE OF NORTH CAROLINA v. RUSSELL EVERETT PERKINS", "name_abbreviation": "State v. Perkins", "decision_date": "1970-05-06", "docket_number": "No. 7014SC211", "first_page": "675", "last_page": "681", "citations": [ { "type": "official", "cite": "7 N.C. App. 675" } ], "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": "167 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555441 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0664-01" ] }, { "cite": "153 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564324 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0483-01" ] }, { "cite": "170 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549742 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0596-01" ] }, { "cite": "168 S.E. 2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550074 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0353-01" ] }, { "cite": "164 S.E. 2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "3 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553367 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/3/0109-01" ] } ], "analysis": { "cardinality": 566, "char_count": 12244, "ocr_confidence": 0.578, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20594482535468284 }, "sha256": "5956d8775697ff830e5db310bdf1e57f1e0b15f820a95f0662a786e79be0551d", "simhash": "1:0b6bb02cb7dd5a2f", "word_count": 2147 }, "last_updated": "2023-07-14T21:45:53.911218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PARKER and HedriCK, JJ., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RUSSELL EVERETT PERKINS" ], "opinions": [ { "text": "Campbell, J.\nThe major exception assigned is that the judge expressed an opinion to the jury about the case in the following colloquy:\n\u201cQ 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?\nA Not to my knowledge, no, sir.\nCOURT: You would know, wouldn\u2019t you?\nA Sir?\nCOURT: You would know it, wouldn\u2019t you?\nA I would think I would know if I did.\nCOURT: Answer the question correctly.\nNo, I did not have sex relations with my daughter on that date. . . .\u201d\nThe defendant contends that the statement \u201canswer . . . correctly,\u201d implies that the trial judge was saying that the defendant was not answering \u201ctruthfully.\u201d 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, \u201cNo.\u201d Secondly, the question was posed by defendant\u2019s 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).\nPerkins asserts that if the above statement alone was not prejudicial, then that, plus the following two statements were:\n1. \u201cCHARGE OF THE COURT\nBAILEY, 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.\u201d\n2. \u201cDEFENDANT PERKINS: I want to make a statement.\nMR. BURT: May it please the Court, the defendant wishes to make a statement at this time.\nCOURT: 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.\nTHE JURY IS EXCUSED FROM THE COURTROOM AND OUT OF THE PRESENCE OF THE JURY THE FOLLOWING PROCEEDINGS WERE HAD:\n* # -X- *X*\n\u201c(Mr. Burt confers with the defendant.)\nMR. BURT: May it please the Court, he wishes to make the statement that he is not satisfied with his defense in this case.\nTHE COURT: Mr. Perkins?\nDEFENDANT PERKINS: Yes.\nTHE 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.\u201d\nWe disagree. In the first instance, the court merely thanked the jury for their service in connection with a \u201cdisagreeable\u201d type of case \u2014 not necessarily a \u201cdisagreeable\u201d 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 \u00e1 certain procedure vrould be followed. The latter amounts to a judge\u2019s cautioning the defendant\u2019s attorney about the use of improper procedure, which is entirely within the province of the trial judge. Defendant\u2019s 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).\nDefendant also questions the propriety of allowing the Solicitor to \u201cwave\u201d 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\u2019s exhibits after they were identified as letters from the defendant, and then the following occurred:\n\u201cQ This is State\u2019s Exhibit 3; do you recognize that?\nA Yes, I do.\nQ What is that?\nA It is a letter I received from my husband through the mail.\nQ When did you receive that?\nA I received it in \u2014 on July 17, 1967.\nQ Is that letter and all of the parts thereof in your husband\u2019s handwriting?\nA Yes, they are all in my husband\u2019s handwriting (examining the letter).\nA I would like to introduce that into evidence, if your Honor please.\nOBJECTION \u2014 SUSTAINED.\nQ Now, I would like to have this item identified as State\u2019s Exhibit 4 and ask this witness whether she recognizes State\u2019s Exhibit 4?\nA Yes, it is his handwriting. I received it through mail.\n(Envelope containing letter postmarked Durham, July 5, 1967, is marked for identification as STATE\u2019S EXHIBIT No. 4.)\nCOURT: What did she say it was, letter received from the defendant on when?\nA July the 5th, 1967.\nMR. EDWARDS: I think I will have no further questions at this time. What I would like to do in State\u2019s 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.\nOBJECTION \u2014 SUSTAINED.\u201d\nThe Solicitor cannot be faulted for attempting to get evidence into the record. The defendant\u2019s 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).\nThe following two dialogues are also complained of by the appellant (the first during Carolyn\u2019s and the second during Mrs. Perkins\u2019 testimony):\n1. \u201cQ Now, Carolyn, had he done this before to you?\nA Yes, sir.\nOBJECTION \u2014 OVERRULED.\nQ How often, approximately?\nA I don\u2019t know, but from what I remember it was six or seven.\nQ About six or seven times?\nA Or more.\nQ When did he start doing this to you?\nA About a year ago this summer.\nQ About a year ago?\nA Yes, sir.\u201d\n2. \u201cQ Did you ask her whether it had ever happened to her before?\nA Yes, I questioned her about it.\nQ What did she say?\nA And she told me \u2018yes,\u2019 and she told me exactly she couldn\u2019t remember how long it has been going on, and I asked her again, I said, \u2018Carolyn, how come you haven\u2019t told me about it?\u2019 and all she gives me for an answer is because he has threatened her.\u201d\nAll of this was referred to in the charge of the Judge in the following manner:\n\u201cShe testified this had happened some six or seven times before over a period of a year; that she had not made any complaint to anyone before because her father had told her that if she did that she would have to go to the penitentiary; that, when her mother came home that afternoon, she reported this to her mother only after her mother had questioned her about it two separate times.\u201d\nThis assignment of error is without merit. State v. Sutton, 4 N.C. App. 664, 167 S.E. 2d 499 (1969).\nWe have reviewed the other assignments of error as well and find, in law,\nNo error.\nPARKER and HedriCK, JJ., concur.", "type": "majority", "author": "Campbell, J." } ], "attorneys": [ "Attorney General Robert Morgan, Deputy Attorney General Ralph Moody and Staff Attorney Donald M. Jacobs for the State.", "W. Paul Pulley, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RUSSELL EVERETT PERKINS\nNo. 7014SC211\n(Filed 6 May 1970)\n1. Criminal Law \u00a7 99\u2014 comments by trial court \u2014 expression of opinion\nIn this incest prosecution, the trial court did not express an opinion on the evidence when, in response to a question by defense counsel as to whether defendant had sexual relations with his daughter, defendant answered, \u201cNot to my knowledge,\u201d and the court asked, \u201cYou would know, wouldn\u2019t you?\u201d and instructed defendant to \u201canswer the question correctly.\u201d\n2. Criminal Law \u00a7\u00a7 114, 170\u2014 expression of opinion in instructions \u2014 reference to \u201cdisagreeable case\u201d\nIn this incest prosecution, the trial court did not commit prejudicial error in thanking the jury at the beginning of the instructions \u201cfor the attention you have given to this rather disagreeable case.\u201d\nS. Criminal Law \u00a7 99\u2014 comment by trial court \u2014 expression of opinion In this incest prosecution, defendant was not prejudiced when the court, upon being informed by defense counsel that defendant wished to make a statement, stated \u201cThat will not be permitted,\u201d and told the jury to retire and that he would \u201csee what this is about.\u201d\n4. Criminal Law \u00a7\u00a7 99, 170; Constitutional Law \u00a7 32\u2014 defendant\u2019s dissatisfaction with counsel \u2014 comments by trial court in absence of jury\nIn this incest prosecution, defendant was not prejudiced when, upon being informed in the absence of the jury that defendant was not satisfied with his appointed counsel, the trial court stated that defendant had objected to all three lawyers who had been appointed to represent him, that defendant was not going to pick and choose lawyers to be paid by the State, that the court had done the best it could in giving defendant a good lawyer, and that \u201cyou will take him and you will like him.\u201d\n5. Criminal Law \u00a7 102\u2014 solicitor\u2019s attempt to get evidence in record \u2014 prejudice\nIn this incest prosecution, defendant was not prejudiced by the solicitor\u2019s attempts to get into evidence State\u2019s exhibits which were identified as letters from defendant where the court sustained defense objections to their introduction.\n6. Criminal Law \u00a7 34; Incest\u2014 evidence of other instances of intercourse with prosecutrix\nIn this incest prosecution, the trial court did not err in the admission of testimony that defendant had had intercourse with the prosecutrix on previous occasions and in referring to such testimony in the charge.\nON Certiorari to Review Judgment from Bailey, J., 7 November 1967 Session of Dubham County Superior Court.\nDefendant Russell Everett Perkins (Perkins) was indicted during the July 1967 term of Durham County Superior Court for having felonious carnal intercourse with his daughter, Carolyn Perkins, age 14, on 26 June 1967. It was determined that Perkins was indigent and counsel was provided for him. After Perkins became dissatisfied with this attorney, another member of the Bar was provided for him. After a misunderstanding and a conflict arose, the second attorney was allowed to withdraw. Apparently, a third attorney was appointed for Perkins prior to the trial.\nPerkins\u2019 daughter, Carolyn, testified that her mother and her older sister had left the home, leaving Carolyn and her father to \u2022care for the smaller children. She testified that her father called her to the bedroom while the younger children were watching television; that he closed the door, told her to remove her clothes and lie on the bed; that he then had sexual relations with her. She stated, over objection, that he had done this \u201csix or seven times\u201d before.\nCarolyn Perkins testified that she reluctantly told her mother about the incident, after the latter had questioned her \u201cbecause my little sister saw the door closed.\u201d Mrs. Perkins testified she had met her husband in Germany in 1951. Perkins returned to the United States and brought her over here and married her. She stated that she had one child, Linda, before meeting Perkins and that Carolyn had been born to her before their marriage, but that Carolyn was Perkins\u2019 child. Four other children were born of the marriage. Mrs. Perkins tended to corroborate Carolyn\u2019s testimony regarding the incident in question here.\nPerkins took the stand and denied having relations with Carolyn. He testified that he had merely called her to the room to find some pants for him and to tell her to dress the children so they could all leave; and that there was no way the children could have seen the door to the bedroom closed from where they sat near the television. When asked whether Carolyn Perkins was his daughter, he replied,\n\u201cFor all I know I would say yes, sir. I was dating my wife at the time steady. I was dating my wife \u2014 she had one- child. That is the reason I married her. I came back to the United States and thought I had left a little baby in Germany without a father.\nQ And how old is Carolyn Perkins, your daughter?\nA She is fifteen the 28th of this month.\u201d\nPerkins admitted writing the letters which were the State\u2019s exhibits and stated that he had had drinking problems.\nThe jury returned a verdict of guilty and the defendant, Perkins, was sentenced to 15 years imprisonment by a judgment signed 7 November 1967. Perkins petitioned this Court for a writ of certiorari which was granted and filed 31 December 1969.\nAttorney General Robert Morgan, Deputy Attorney General Ralph Moody and Staff Attorney Donald M. Jacobs for the State.\nW. Paul Pulley, Jr., for defendant appellant." }, "file_name": "0675-01", "first_page_order": 697, "last_page_order": 703 }