State v. Rudolph , 39 N.C. App. 293 ( 1979 )

250 S.E.2d 318 (1979) 39 N.C. App. 293

STATE of North Carolina
v.
F. E. RUDOLPH.

No. 7810SC749.

Court of Appeals of North Carolina.

January 2, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

Davis, Hassell & Hudson by Charles R. Hassell, Jr., Raleigh, for defendant-appellant.

MORRIS, Chief Judge.

The defendant has brought forward on appeal numerous exceptions and assignments of error. We note initially that defendant has failed to comply strictly with the requirements of Appellate Rule 28(b)(3) by not properly setting forth a reference to the exceptions and assignments of error following each question presented in the argument portion of his brief. Nevertheless, because such references were properly made under the "Issues Presented" portion of the brief, and the appellant has otherwise conformed with the rules of appellate procedure, we will consider the arguments. The assignments of error will be addressed in the order they appear in defendant's brief.

Defendant first assigns as error the trial court's denial of his motions to (1) dismiss the charges (G.S. 15A-954), (2) modify conditions for his release pending trial (G.S. 15A-538) "to allow his release on his written promise to appear", and (3) motion for discovery (G.S. 15A-901 et seq.) seeking, among other things, "[a] full written description of the so-called ``career criminal' program . . . including the criteria utilized by the District Attorney and the procedure to be followed in the prosecution of [the] case." Defendant argues that the district attorney was without authority to initiate the "career criminal" program and that by singling out the defendant to be given swift prosecution, his opposition to "reasonable" bail, refusal to plea bargain, and his opposition to discovery of the "career criminal" criteria amounted to a denial of due process and equal protection under the United States and North Carolina Constitutions. For the reasons explained infra, we reject defendant's arguments.

Defendant asserts that the district attorney's program was essentially a non-legislative enactment of a criminal recidivist law. However, there is a fundamental distinction between the Wake County district attorney's policy for the prosecution of "career criminals" and prosecution under criminal recidivist statutes. Under the former, the district attorney is implementing a policy of vigorous prosecution using such means as concentrating available manpower on career criminal trials, pursuing tough plea bargaining policies, advocating more restricted pre-trial release, and arguing for more severe punishments. These actions are well within the broad prosecutorial discretion long recognized by the courts in this State and require no legislative enactments. See State v. Furmage, 250 N.C. 616, 109 S.E.2d 563 (1959). The exercise of this discretion is beyond constitutional reproach so long as the prosecutorial decisions and policies are not based upon impermissible motives such as bad faith, race, religion, or a desire to prevent the exercise of a constitutionally guaranteed right. See United States v. Smith, 523 F.2d 771 (5th Cir. 1975); United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974). Moreover, even conscious selectivity in the exercise of the prosecutor's discretion, such as a deliberate decision not to implement a specific policy in certain cases, is valid absent an unconstitutional standard or arbitrary classification. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Spillman v. United States, 413 F.2d 527 (9th Cir. 1969). Defendant has come forward with no evidence whatsoever that impermissible standards have been used. Defendant's substantive due process and equal protection attacks have no basis whatsoever in the record.

The recidivist statutes, to which defendant has equated the career criminal program, provide by law for more severe penalties upon the conviction of a person falling within the applicable statutory criteria. Application of such recidivist statutes, because they directly affect the defendant's liberty interests, triggers traditional procedural due process rights of reasonable notice and a right to be heard, Oyler v. Boles, supra. Similarly, the proceedings established to determine which defendants fall within the statutory criteria are critical stages of the legal process at which a defendant is entitled to legal representation. Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442 (1961). However, such procedural due process rights do not arise upon the implementation of the district attorney's program. The defendant's procedural and substantive rights guaranteed by law are not altered by the policy.

Furthermore, the prosecution was not required to provide defendant with "a full written description of the so-called ``career criminal'" program under G.S. 15A-903(d). These documents are not "material to the preparation of the defense", "intended for use by the State as evidence", or "obtained from . . . the defendant". Defendant was informed by letter from the prosecution as to why he was being prosecuted as a "career criminal". Such information was voluntarily provided as a matter of professional courtesy and cooperation. G.S. 15A-903 does not entitle defendant to information on the internal policies of the district attorney's office. See G.S. 15A-904.

Defendant next argues that the court erred in denying his motion to suppress evidence and erred in admitting evidence seized incident to the warrantless arrest of defendant. Defendant contends there was no probable cause for the arrest and that any evidence subsequently obtained as a result of the illegal arrest was inadmissible.

G.S. 15A-401(b)(2) provides that an arrest may be made without a warrant if the officer has probable cause to believe the person to be arrested has committed a felony. There is probable cause for arrest "if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon." State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 686 (1974). Furthermore, it is permissible for police officers to make, in the course of a routine investigation, a brief detention of citizens upon a reasonable suspicion that criminal activity has taken place. State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). Moreover, when incriminating evidence comes to the officer's attention during detention, such evidence may establish a reasonable basis for finding the probable cause necessary for effecting a warrantless arrest. United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); State v. Allen, supra.

The evidence indicates that the initial detention of defendant and his vehicle was justified. The officers had received an accurate description of the suspect's vehicle through the police dispatcher and were informed that its three occupants were suspects in a recently perpetrated crime. See generally Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Jones, 295 N.C. 345, 245 S.E.2d 711 (1978); State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978); State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). Even assuming, arguendo, the absence of probable cause to make an immediate arrest of the suspects, the flight of Clainey McKinney and the discovery of what appeared to be the robbery weapon in the plain view of the officers was sufficient to ripen the suspicion of the officers into probable cause to make an arrest. The evidence discovered in a search of the car and the person of the defendant incident to the arrest was admissible. See State v. Jones, supra; State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968); State v. Johnson, 29 N.C. App. 534, 225 S.E.2d 113 (1976).

Defendant next assigns as error misstatements of the law by the trial court in its charge to the jury. The first misstatement occurred in the trial court's initial comments to the jury prior to the taking of evidence. In describing the State's burden of proof on the charge of robbery with a firearm, the court declared that the State must prove beyond a reasonable doubt that "the defendant took and carried away a cash register and money, the property of another, with the consent of the owner . . . ." Technically the court erred in failing to use the word "without". The instruction appeared in the record in the following context:

". . . For you to find the defendant guilty of these offenses, the State must prove by evidence beyond a reasonable doubt that the defendant, F. E. Rudolph took and carried away a firearm, the property of another, without the consent of the owner, knowing that he had not the right to take it and intending at the time to deprive the owner of its use permanently.

For you to find the defendant guilty of robbery with a firearm or other dangerous weapon, the State must prove beyond a reasonable doubt by evidence that the defendant took and carried away a cash register and money, the property of another, with the consent of the owner, knowing that he had not the right to take that property and intending at the time to deprive the owner of its use permanently;. . ."

Considered in that context, we believe the jury could not have been mislead by the trial court's lapsus linquae. This misstatement is obvious even to a lay person. Furthermore, it is clear from the record that in the court's final charge, the jury was instructed properly that the property must have been taken without consent of the owner. Considering the context of the initial misstatement, the lapse of time from the misstatement until the jury deliberations, and the correct final charge to the jury, we conclude that defendant could not have been prejudiced by the error. See State v. Sanders, 280 N.C. 81, 185 S.E.2d 158 (1971).

Defendant also asserts that the court's misstatement of the law concerning proof by circumstantial evidence was prejudicial error thus entitling him to a new trial. The court erroneously instructed, ". . . [Y]ou must be satisfied beyond a reasonable doubt that the circumstantial evidence relied upon by the State is consistent with his innocence." (Emphasis added.) Not only is it possible that the court reporter erred in transcribing the instruction, it must have been obvious even to jurors without legal training that the court meant to say "inconsistent". Such misstatements, termed lapsus linquae, will not be held prejudicial if not called to the attention of the court and if it does not appear that the jury could have been misled by the statement. State v. Willis, 22 N.C.App. 465, 206 S.E.2d 729 (1974); see also State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. denied, 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967). Defendant's assignments of error relating to errors in the charge are overruled.

Defendant next contends that the trial court erred in permitting testimony concerning conduct of defendant's accomplices in the robbery. He argues that permitting evidence regarding the conduct of his accomplices denies him the right to confront his accusers. He cites as authority Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971). It suffices to say that the cited cases, which apply to confessions of a co-defendant, do not support defendant's position. Evidence with respect to the conduct of defendant's accomplices, when relevant to show the operative facts in establishing defendant's criminal conduct, are admissible unless excluded by some other established rule of law.

The admissibility of the State's evidence concerning a palm print found on the stolen cash register has been challenged by defendant. He asserts that this evidence should have been excluded on the authority of State of Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). However, that decision does not establish a rule of evidence. As Justice Copeland carefully explained:

". . . The only limitation this Court has imposed on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification. State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951); State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940); State v. Huffman, 209 N.C. 10, 182 S.E. 705 (1935); State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931). We have repeatedly said that the testimony of a fingerprint expert is ``competent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission.' State v. Tew, supra at 617, 68 S.E.2d at 295; accord, State v. Helms, supra; State v. Huffman, supra; State v. Combs, supra.

The probative force, not the admissibility, of a correspondence of fingerprints found at the crime scene with those of the accused, depends on whether the fingerprints could have been impressed only at the time the crime was perpetrated. See State v. Miller, supra [289 N.C. 1, 220 S.E.2d 572] State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948); State v. Combs, supra. Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury. State v. Miller, supra; State v. Helms, supra; see State v. Combs, supra. It is not a question of law to be determined by the court prior to the admission of fingerprint evidence." 291 N.C. at 488-489, 231 S.E.2d at 839-840.

The rule on a motion for nonsuit is that "[f]ingerprint evidence, standing alone, is sufficient to withstand a motion for nonsuit only if there is ``substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed.' (Citations omitted.)" 291 N.C. at 491-492, 231 S.E.2d at 841. Nevertheless, there is circumstantial evidence other than the fingerprints tying defendant to the crime. Such other factors along with evidence of the fingerprints is sufficient to withstand the motion for nonsuit.

Finally, defendant argues that the testimony of the Bureau of Identification representative which referred to a fingerprint file on the defendant was inadmissible as an attempt to circumvent the well-established rule that in a prosecution for a particular crime, the State generally may not present evidence of other distinct, independent, or separate offenses when defendant has not testified. See 1 Stansbury's N.C. Evidence § 91 (Brandis Rev. 1973). In State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973), our Supreme Court addressed a similar problem when the fingerprint identification card was given to the jury. The Court was there concerned with possible references in the fingerprint file to prior charges against the defendant. The Court found no error in allowing the jury to see such records when reference to other specific crimes had been effectively deleted. In the case at bar the file was not passed to the jury, and no prior charges appearing on the file were communicated to the jury. Any inference arising from this testimony that defendant had a prior police record was not of sufficient force prejudicially to influence the jury in its deliberations. Id.; see also State v. McNeil, 28 N.C.App. 347, 220 S.E.2d 869 (1976). Testimony referring to the fingerprint identification card was properly admitted.

No error.

WEBB and HARRY C. MARTIN, JJ., concur.