State v. Perkins , 7 N.C. App. 675 ( 1970 )

Campbell, J.

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.

THE 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.

Q 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.

OBJECTION — 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?

A Yes, I questioned her about it.

Q What did she say?

A And she told me ‘yes,’ and she told me exactly she couldn’t remember how long it has been going on, and I asked her again, I said, ‘Carolyn, how come you haven’t told me about it?’ and all she gives me for an answer is because he has threatened her.”

All of this was referred to in the charge of the Judge in the following manner:

“She 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.”

This assignment of error is without merit. State v. Sutton, 4 N.C. App. 664, 167 S.E. 2d 499 (1969).

We have reviewed the other assignments of error as well and find, in law,

No error.

PARKER and HedriCK, JJ., concur.