State v. Miller ( 1968 )

OPINION

COMPTON, Justice.

This is the second time this cause has been considered by this court. State v. Miller, 76 N.M. 62, 412 P.2d 240. On remand the defendant again was convicted by a jury of Bernalillo County of the crime of murder, its verdict specifying life imprisonment in lieu of death. Judgment was imposed accordingly, and the defendant has appealed.

At approximately midnight on July 4, 1962, Gloria Monson was found lying on the floor behind the counter of the package store at Johnny Farmer’s Restaurant on East Central in Albuquerque, where she was employed, suffering from a bullet wound in her forehead. She died soon thereafter as a result of the gunshot wound. On the counter was a wine bottle on which was found a latent right thumb fingerprint. A fingerprint examiner employed by the Federal Bureau of Investigation in Washington, D. C., who testified that he had access to the F. B. I. fingerprint files brought with him the original of a print from the F. B. I. files, with a notation, "Miller, Lloyd L.,” which was admitted into-■evidence marked Exhibit 26. The latent print, Exhibit 23, was compared with Exhibit 26 by the expert who testified that in his opinion the latent print taken from the bottle was identical with Exhibit 26. Exhibit 25, fingerprints taken in Albuquerque, admittedly those of the defendant, were then compared with the print, Exhibit 26. The expert testified that in his opinion the prints of Exhibit 26 and Exhibit 25 were identical.

Miller bases his appeal upon the contention that admission of the fingerprint from the F. B. I. file, Exhibit 26, was prejudicial error because (1) there was no proof of authenticity of the challenged fingerprint; (2) no foundation was laid for its introduction into evidence; and (3) the testimony linking the challenged exhibit with the latent print taken from the bottle constituted the imposition of an inference upon an inference contrary to the rules of evidence. The record, however, affords no basis for the contention.

We cannot agree that there was such a failure of proof of authenticity of Exhibit 26 as to render its admission reversible error. The undisputed evidence shows that the exhibit was an original fingerprint from the official files — the international depository for fingerprints — in Washington, D. C., and identified as such by an F. B. I. Agent having access to the files, who personally took the same from such official files or records. The correct rule respecting proof of authenticity under such circumstances is stated thusly in McCormick, Evidence, § 191, at 403 (1954) :

“If a writing purports to be an official report or record and is proved to have come from the proper public office where such official papers are kept, it is generally agreed that this authenticates the offered document as genuine. This result is founded on the probability that the officers in custody of such records will carry out their public duty to receive or record only genuine official papers and reports. * * * ” '

See, also, City of Columbus v. Ogletree, 102 Ga. 293, 29 S.E. 749; McLeod v. Crosby, 128 Mich. 641, 87 N.W. 883; 7 Wigmore, Evidence, §§ 2158-2159 (3d Ed.). Compare Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue, 61 F.2d 879 (7th Cir. 1932); and State v. Brady, 2 Ariz.App. 210, 407 P.2d 399.

It must be remembered that in this case Exhibit 26 was not offered or admitted as the fingerprint of the defendant, but merely as a record of a fingerprint from an official file. A copy of the original fingerprint record certified by the lawful custodian of the F. B. I. records would have been admissible in evidence. 5 Wigmore, Evidence, § 1635a (3d Ed.). “The record itself is evidence of the print, if kept by authority express or implied. * * * ” Fingerprint records are kept under the express authority of a federal regulation. 28 C.F.R. § 0.85. We take judicial notice of this regulation. See § 21-1-1 (44) (d) (3), N.M.S.A.1953. See, also, 5 U.S.C.A. § 301, and 5 U.S.C.A. § 301 n. 35. An examined copy of a public record, whether made by a person having or not having official custody thereof, is admissible in evidence to prove its contents. Higgins v. Fuller, 48 N.M. 218, 148 P.2d 575. Upon the same principles, the original document offered by one who has examined it in its place of official custody is equally admissible to prove its contents.

Neither the custodian, nor one who examined the original fingerprint, can testify that the print (Exhibit 26) is the defendant’s fingerprint. 5 Wigmore, Evidence, § 1635a (3d Ed.). The situation here is analogous to that of establishing that a person convicted of a felony in this state had been convicted of other felonies in another state for purposes of enhancing the penalty under the habitual criminal act. The method of proof is set forth in 5 Wigmore, Evidence, § 1678a (5) (3d Ed.), as follows:

“Supposing that duly prepared certificates of the above sort are produced and admitted [that J. S. was convicted of a felony in a foreign state], it then remains only necessary to call a fingerprint expert to testify whether the fingerprints thus produced are identical with those taken by the local officers from the person in the case. Where the person appears in the case on trial under a different name from the name of the person elsewhere convicted, the fingerprint will be the substantial evidence of identity; for of course the custodian of the forwarded finger-print is not in a position testimonial^ to assert that the person called J. S. in his custody is the person calling himself R. D. in the case on trial.”

The expert who brought Exhibit 26 from the F. B. I. files, in laying the foundation for its admission, only testified that it was a document from an official file. He did not then attempt to testify to the effect of the document, i. e., that the fingerprint was that of defendant Miller.

Following the Wigmore rule, the expert witness then compared the fingerprint taken from the F. B I. files with the latent print found on the bottle at the scene of the crime, and testified that in his opinion they were identical. All that is established thus far is that the latent fingerprint and Exhibit 26 were made by the same person but there is still no proof of identity of the person making them. The proof of identity was made by a comparison of Exhibit 26 with a fingerprint admittedly of the defendant taken in Albuquerque (Exhibit 25).

The cases relied upon by defendant in support of his contention that evidence of the time, place and conditions under which Exhibit 26 was taken is necessary as a foundation for its admission are distinguishable. Those are cases where it was sought to introduce fingerprints found at the scene to place the defendant at the scene of the crime. For that purpose, proof of the place and conditions where the print was found are necessary to establish relevancy. In this case the fingerprint, as a record of a public document, is admissible as proof of its content, where proof of relevancy is made. 5 Wigmore, Evidence, §" 1635a (3d Ed.). Testimony that the print from the F. B. I. file (Exhibit 26) is-identical with the admitted print of defendant’s thumb (Exhibit 25) established relevancy. McCormick, Evidence, § 151 (1954). State v. Seales, 245 Iowa 1074, 65 N.W.2d 448, is distinguishable. The record was there offered to establish that the defendant had been previously convicted. That decision turned upon the proposition that the fingerprints were not in themselves, proof of a prior conviction. Compare State v. Johnson, 194 Wash. 438, 78 P.2d 561. In the instant case the prints from the F. B. I. file were not originally certified or offered as the fingerprints of the defendant. That proof was made later by the comparison with a known print. We find no error in the admission of the challenged fingerprint.

It is unnecessary to discuss whether identifying the latent print found on the bottle at the scene of the crime as having been made by Miller by identifying it as being identical with Exhibit 26 which in turn was identified as identical with Exhibit 25, the admitted print of the defendant, constitutes proof by an inference on an inference. The question was not preserved for review. That ground of objection was not made in the trial court. We find nothing in the record by which the mind of the trial court was clearly alerted to the question raised here. The rule is well established that the ground of an objection to the introduction of evidence must be clearly stated so that the court may intelligently rule upon the objection. State v. LaBoon, 67 N.M. 466, 357 P.2d 54; State v. Clarkson, 42 N.M. 289, 76 P.2d 1161; State v. Compton, 57 N.M. 227, 257 P.2d 915; State v. Heisler, 58 N.M. 446, 272 P.2d 660; Supreme Court Rule 20(1) (§ 21-2-1(20) (1), N.M.S.A.1953).

It follows that the judgment must be affirmed.

It is so ordered.

CHAVEZ, C. J., and NOBLE and CARiMODY, JJ., concur. MOISE, J., dissents.