State v. Scober , 74 N.C. App. 469 ( 1985 )

328 S.E.2d 590 (1985)

STATE of North Carolina
v.
Raphel SCOBER.

No. 844SC541.

Court of Appeals of North Carolina.

May 7, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Lorinzo L. Joyner, Raleigh, for defendant-appellant.

PARKER, Judge.

In his first assignment of error defendant argues that admitting into evidence a 1979 fingerprint identification card, with all information relating to defendant's prior arrest concealed, was prejudicial error because it suggested prior criminal misconduct. We do not agree.

Defendant had previously been arrested and fingerprinted on 2 March 1979 by Detective Baker of the Duplin County Sheriff's Department. On voir dire, out of the presence of the jury, Baker explained how he fingerprinted defendant and testified that the 2 March 1979 fingerprint identification card had not been altered except for some notations on the margin. The trial judge covered the information on the top and back of the card and instructed the District Attorney not to mention the occasion of taking the fingerprints on 2 March 1979. At trial Detective Baker identified the fingerprint card as the card he rolled with defendant's prints on 2 March 1979. No mention was made of defendant's arrest on that date.

The question of admissibility of a fingerprint identification card made pursuant to a prior, unrelated arrest was addressed by our Supreme Court in State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973). In Jackson the State's evidence tended to show that the defendant entered the victim's house through her kitchen window and raped her. A latent fingerprint was found on the windowsill. The trial judge admitted into evidence a fingerprint identification card made in 1962, introduced for the purpose of identifying the latent fingerprint on the victim's windowsill. The fingerprint identification card was altered so that it did not list an arrest, indictment or conviction. The defendant argued that the admission of the fingerprint identification card was prejudicial error because it constituted evidence of another separate crime. Our Supreme Court held that the 1962 fingerprint identification card was admissible, and any inference arising from testimony that fingerprinting is customary when someone is arrested was not of such force as to prejudicially influence the jury. Accord, State v. Gainey, 32 N.C.App. 682, 233 S.E.2d 671, review denied 292 N.C. 732, 235 S.E.2d 786 (1977); State v. McNeil, 28 N.C.App. 347, 220 S.E.2d 869, review denied 289 N.C. 618, 223 S.E.2d 395 (1976). Cf. State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), which held that the admission into evidence of a mug shot of defendant, with police identification information obliterated, was permissible.

Applying Jackson, we do not believe admission of the fingerprint identification card in the instant case in any way violated the longstanding general rule in North Carolina that "in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense." State v. McClain, 240 N.C. 171, 173, 81 S.E.2d 364, 365 (1954).

In his second assignment of error defendant argues that the trial court erred in ruling that defendant's exhibition of his palm print would constitute his having presented evidence.

When the State offered into evidence the latent fingerprint, the fingerprint identification card and photographic enlargements, defendant's counsel requested permission for defendant to exhibit his own palm to the jury. The State objected to defendant's exhibiting evidence during the State's case in chief; the trial judge sustained the objection and explained that defendant could offer evidence at the close of the State's evidence, at which time the State's exhibits could be recirculated among the jury. Defendant contends the trial judge erred in ruling that presenting his palm print to the jury would be offering evidence. We do not agree. In State v. Hall, 57 N.C.App. 561, 564, 291 S.E.2d 812, 184 (1982), this court formulated the following rule for determining whether an object has been put into evidence:

[T]he proper test as to whether an object has been put in evidence is whether a party has offered it as substantive evidence or so that the jury may examine it and determine whether it illustrates, corroborates, or impeaches the testimony of a witness. If the party shows it to a witness to refresh his recollection, it has not been offered into evidence.

Clearly defendant was attempting to exhibit his palm so the jury could examine it to determine whether it corroborated the State's evidence, and the trial judge ruled correctly.

In his last assignment of error defendant argues that he was denied effective assistance of counsel because his counsel did not present any factors in mitigation at the sentencing hearing.

Defendant's right to assistance of counsel in a noncapital felony case is guaranteed by the Sixth Amendment to the United States Constitution applied to the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and Article 1, Sections 19 and 23 of the North Carolina Constitution. The standard for determining whether there has been effective assistance of counsel set forth by the United States Supreme Court in McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), was adopted in North Carolina in State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982). Under McMann the test is whether the assistance given was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.

Defendant contends his counsel should have argued factors in mitigation at the sentencing hearing. Defendant, however, has not brought forth any evidence of factors in mitigation which should have been argued. Absent some evidence of mitigating factors, we cannot say defendant was denied effective assistance of counsel. Defendant has failed to meet the "stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation." State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871 (1974).

We have carefully considered defendant's assignments of error and find

No Error.

ARNOLD and EAGLES, J., concur.