State v. Foster , 284 N.C. 259 ( 1973 )

HUSKINS, Justice.

Upon the call of this case for trial defendant moved to dismiss it and seven other criminal cases pending against him on the ground that the State had failed to provide him a speedy-trial. Denial of the motion constitutes his first assignment of error.

We note from defendant’s brief that he has abandoned this assignment insofar as it pertains to the case before us but continues to assert the right to have seven other criminal cases pending against him dismissed under G.S. 15-10.

It suffices to say that defendant may not, in this action, assert motions pertaining to other cases. The question whether defendant has been denied a speedy trial should be raised in the case to which it pertains and a hearing conducted to determine the matter. This is neither the time nor the place to debate or decide questions arising in cases not now before us. Defendant’s first assignment of error is overruled.

Defendant’s second and third assignments of error are based on denial of his motions to quash the bill of indictment and in arrest of judgment. He asserts that G.S. 14-52, authorizing the death penalty or life imprisonment as the punishment for burglary in the first degree, violates the cruel and unusual punishment prohibition of the Eighth Amendment to the Federal Constitution and Article I, sections 19 and 27, of the Constitution of North Carolina.

We have consistently held that a sentence of imprisonment which is within the maximum authorized by statute is not cruel or unusual in a constitutional sense, unless the punishment provisions of the statute itself are unconstitutional. State v. Mitchell, 283 N.C. 462, 196 S.E. 2d 786 (1973); State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296 (1972); State v. Hilton, 271 N.C. 456, 156 S.E. 2d 833 (1967). The federal rule is to like effect. Martin v. United States, 317 F. 2d 753 (9th Cir. 1963). First degree burglary committed prior to 18 January 1973 is punishable by life imprisonment. State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973); State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972); Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726 (1972). Thus the judgment pronounced is within the maximum authorized by law. The constitutional question raised by these assignments has already been the subject of conclusive judicial determination. Defendant’s second and third assignments have no merit and are overruled.

Defendant’s sixth assignment of error is abandoned under Rule 28, Rules of Practice in the Supreme Court.

Defendant assigns as error the admission over objection.of testimony of Officer Stubbs relative to comparison of defendant’s fingerprint with the latent print and his opinion based thereon and the admission into evidence of State’s Exhibit 1, on the ground that since the three by five index card containing latent prints taken from the Davis home was lost and not produced at the trial, the State could not establish that the latent print examined by Officer Stubbs and photographed by Officer Adams was, in fact, the latent print lifted from the flowerpot in the Davis home. Hence he contends that the State has failed to establish that the photographs on both sides of the folder marked State’s Exhibit 1 were in fact the photographs made by Officer Adams.

The State offered evidence which tends to show: (1) Officer Cobb obtained three latent fingerprint lifts from the flowerpot in the Davis home, placed them on a three by five white card, and handed the card to Officer Adams at the Davis home; (2) Officer Adams indicated on the card the complainant’s name, address, the offense, the date, complaint number of the case, and the technician’s signature; (3) the card was inserted in a five by seven envelope and placed in Officer Stubbs’ file box in the crime laboratory under lock and key; (4) Officer Stubbs received the envelope containing the three by five index card with the latent prints on it, examined the latent prints, and later returned it to Officer Adams for photographic enlargement; (5) Officer Adams photographed the one identifiable latent print designated by Officer Stubbs, using a fingerprint camera for enlargement purposes; (6) the photographic enlargement of the latent print was returned to Officer Stubbs who wrote in ink the complaint number “71-77794” in the lower right hand corner of said enlargement; and (7) that the enlargement of the latent print shows the number 71-77794 in the lower right hand corner and is the photograph which appears on the right side of the folder marked State’s Exhibit No. 1. This chain of possession establishes unmistakably that the enlarged photograph on the right side of State’s Exhibit 1 is a blowup of the one identifiable latent print lifted by Officer Cobb from the flowerpot in the Davis home.

Officer Stubbs testified without objection that he personally fingerprinted the defendant on 12 November 1971. The fingerprints thus obtained were placed on State’s Exhibit 2 and delivered to Officer Adams. Without objection, Officer Adams testified that he photographed the print of defendant’s right index finger as it appeared on State’s Exhibit 2, made an eight by ten enlargement thereof, and that that enlargement is the photograph on the left side of State’s Exhibit 1. This evidence establishes unmistakably that the enlarged photograph on the left side of the folder marked State’s Exhibit 1 is the photograph of defendant’s right index fingerprint which was personally inked by Officer Stubbs on 12 November 1971.

Then, using the photographs which constitute State’s Exhibit 1 to illustrate his testimony, Officer Stubbs testified over objection that the photograph on the left side of State’s Exhibit 1 fairly and accurately depicts a blowup of defendant’s right index finger and the photograph on the right side.of. the folder marked State’s Exhibit 1 fairly and accurately depicts a blowup of the one identifiable latent print on the three by five index card which he received in the five by seven envelope, State’s Exhibit 3. Officer Stubbs then testified as follows:

“Ladies and gentlemen, on the left of this folder is an enlargement of a known or inked fingerprint. On the right is an enlargement of what we call the latent or crime scene print. The comparisons between these two prints are made by what we call points of identification or characteristics. These are when we can find the identical characteristics on both prints. Some of these types of characteristics are called ridge endings. This is where these friction or capillary ridges of the fingers create the fingerprint pattern ridge. A ridge ending will come to an abrupt end. There are other characteristics like bifurcation. This is when two ridges, are running along parallel and just run together to form one ridge. The bifurcations can either run clockwise or counterclockwise. There are also ridge dots. This is just a very •short ridge in itself, usually between two of the longer friction ridges. There are also islands in these friction ridges in many instances 'where one ridge will be running along and then fork out to make a small dot or island; but it is from the comparisons of these identical characteristics on two. prints that we can ascertain that one print is identical with' another. In this particular case, I have marked off thirteen characteristics which are identical in nature and in the same general places as on the latent print. . . . [A] s I said, there are thirteen marked off on this particular print. However, there are many more on here that I did not mark off, but I have convinced myself that these were made by the same finger.”

We hold that State’s Exhibit 1 was properly admitted. Decisions of this Court since Honeycutt v. Brick Co., 196 N.C. 556, 146 S.E. 227 (1929), adhere to the rule that in the trial of cases, civil or criminal, photographs may not be admitted as substantive evidence but, where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating his testimony relative and material to some matter in controversy. Stansbury’s North Carolina Evidence § 34 (Brandis rev. 1973); State v. Tew, 234 N.C. 612, 68 S.E. 2d 291, (1951). Accuracy is established where,, as here, it is. shown by extrinsic evidence that the photograph is a true representation, of the scene, object or person it purports to portray. State v. Tew, supra; State v. Rogers, 233 N.C. 390, 64 S.E. 2d 572 (1951); Spivey v. Newman, 232 N.C. 281, 59 S.E. 2d 844 (1950); State v. Matthews, 191 N.C. 378, 131 S.E. 743 (1926); 3 Wigmore on Evidence § 793 (Chadboürn rev. 1970).

It shpúld be noted that these photographs were admitted over defendant’s general objection and there was no request that their usé be limited or restricted. When a general objection is interposed and overruled, “it will not be considered reversible error if the evidence is competent for any purpose.” State v. Casper, 256 N.C. 99, 122 S.E. 2d 805 (1961); State v. Cade, 215 N.C. 393, 2 S.E. 2d 7 (1939); Rule 21, Rules of Practice in the Supreme Court.

Since' the photographs contained in State’s Exhibit 1 had been properly authenticated as to' accuracy and properly identified as enlargements of the fingerprints they purport to portray, the testimony' of Officer Stubbs relative to comparison of defendant’s known fingerprint with the latent print and his opinion based thereon was properly admitted. Defendant’s seventh and ninth assignments of error are without merit and therefore overruled.

Lawrence A. Kelly, a fingerprint expert, testified over objection that defendant’s counsel hired and paid him to examine the two enlarged photographs on State’s Exhibit 1 and make a comparison of the two fingerprints shown thereon; that he did so in November 1971 and in his opinion the fingerprints shown in the two photographs were made by one and the same person. Defendant argues that the court permitted the witness Kelly to use the photographs in State’s Exhibit 1 as substantive evidence, thus rendering his testimony incompetent. He contends that a witness cannot offer substantive testimony “based solely on photographs, when the photographs themselves cannot be used as substantive evidence.” The admission of this testimony over objection and denial of defendant’s motion to strike it constitutes defendant’s fifteenth and sixteenth assignments of error.

Whether Kelly’s testimony here is prohibited by the rule that photographs may be used for illustrative purposes only, and not as substantive evidence, is open to question. Since the photographs were at least competent for illustrative purposes and were admitted over defendant’s general objection and there was no request that their use be limited or restricted, they were properly in evidence and may be regarded as generally admitted for all purposes. State v. Casper, supra; State v. Cade, supra. Moreover, for an expert witness to say that he has compared two photographs and in his opinion they depict a fingerprint made by the same finger is arguably not equivalent to use of the photographs as substantive evidence. Kelly is a fingerprint expert. By reason of his superior learning,. knowledge and skill in the field of identification by fingerprints, he is better qualified than the jury to form an opinion as to whether the two fingerprints shown in the enlarged photographs in State’s Exhibit 1 were made by the same finger. He was asked to express his expert opinion concerning the similarity or dissimilarity of photographs which had already been authenticated as to their accuracy and which had already been introduced in evidence and used by Officer Stubbs, another fingerprint expert, to illustrate his testimony. In this factual setting, • Kelly’s testimony was competent and no improper use of the photographs has been shown.

But if Kelly’s use of the photographs as here depicted requires them to be characterized as substantive evidence, so be it. North Carolina’s “illustrative” rule of evidence as applied to photographs has been criticized and long regarded as erroneous by numerous commentators. Dean Henry Brandis comments as follows in Stansbury’s North Carolina Evidence § 34 (Brandis rev. 1973) :

“The North Carolina rule is that material of this sort is not substantive evidence and may be used only to illustrate or explain the testimony of a witness. Like the original author of this text, the present author confesses his inability to grasp the significance of this distinction. . . .”

McCormick on Evidence § 214 (2d ed. 1972), commenting on the North Carolina rule, says:

“The foregoing doctrine concerning the basis on which photographs are admitted is clearly a viable one and has undoubtedly served to facilitate the introduction of the general run of photographs. Unfortunately, however, some courts have tended to carry the implications of the theory to unwonted lengths, admitting photographs as ‘illustrative’ evidence but denying them ‘substantive’ effect. It is believed that this distinction is essentially groundless, and fails to warrant the practical consequences which are sometimes seen to flow from it.”

McKelvey on Evidence § 381 (5th ed. 1944) says:

“Photographs as silent witnesses have come increasingly'into use in the Courts for the purpose of independent proof of their subject matter. Their character, as a means of putting before the jury original evidence, is quite different from that of illustrative evidence. Instead of explaining to the jury the testimony of a witness, they picture original evidence which reaches the jury through no human witness. If shown to be competent and if their story is material they tell it themselves as silent witnesses of what they portray. Such evidence has. its own independent probative value.”

The “silent witness” theory as to the use of photographs is recognized with approval in 3. Wigmore on Evidence § 790 (Chadbourn rev. 1970) in the following language:

“Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself.’ ”

In 2 C. Scott, Photographic Evidence § 1022 (2d ed. 1969), the North Carolina rule is. criticized in the, following;language:

“Photographic evidence is admissible when it assists a witness in illustrating or explaining his testimony. This test ... is probably the poorest reason for the use of photographs in that, considered by itself, it fails to recognize their independent probative value.”

The theory of admitting photographs as “silent witnesses” is not new to North Carolina jurisprudence. Chief Justice Clark, dissenting in Hampton v. Railroad, 120 N.C. 534, 27 S.E. 96 (1897), urged adoption of a rule which allowed photographs to be used as a substitute for a jury view. This is substantially the same theory as the silent witness theory. 3 Wigmofe on Evidence § 790 at 220 n. 4 (Chadbourn rev. 1970). The subsequent history of the doctrine in North Cárolina is discussed in detail in Gardner, The Camera Goes to Court, 24 N.C.L. Rev. 233 (1946). Although, as the Gardner comment demonstrates, the silent witness doctrine was seemingly adopted by the'majority of this Court in a few cases, Davis v. Railroad, 136 N.C. 115, 48 S.E. 591 (1904); Pickett v. Railroad, 153 N.C. 148, 69 S.E. 8 (1910); Bane v. Railroad, 171 N.C. 328, 88 S.E. 477 (1916), that support was short-lived. In Honeycutt v. Brick Co., 196 N.C. 556, 146 S.E. 227 (1929), the Court held that the admission of photographs as substantive evidence constituted error and reverted to the “illustrative” rule which has been the law in North Carolina until the present time.

Even so, Honeycutt has been discredited to some extent by the holding in State v. Cade, 215 N.C. 393, 2 S.E. 2d 7 (1939). There, a photograph of the murder victim at the spot where the body was found was admitted in evidence and shown to the jury. Justice Barnhill (later Chief Justice), writing for a unanimous Court in approving such use of the photograph, said: “The evidence merely shows that the photographs were exhibited to the jury and there was no request that their use be limited or restricted.”

While we are not prepared, in this case, to repudiate the “illustrative” doctrine with respect to all photographs, we hold that a photograph of fingerprints, when shown by extrinsic evidence to accurately represent, depict or portray the print it purports to show, is admissible as substantive evidence. Our holding in this respect is in accord with the overwhelming majority of courts throughout the nation. See cases cited in 3 Wigmore on Evidence § 792, n. 1 (Chadbourn rev. 1970). Defendant’s fifteenth and sixteenth assignments of error are overruled. ■

Defendant’s eighth assignment of error is addressed to the admission over objection of testimony of Officer Stubbs that he identified the latent fingerprint lifted from the flowerpot with an alleged fingerprint of the defendant contained on a fingerprint card of Willie Foster, Jr., in the “master file at the police department.” No foundation had been laid by evidence that the fingerprint on the master file card was, in fact, a fingerprint of this defendant.

On a former appeal in this case, State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972), when a new trial was awarded, this Court alerted the trial court in the following language: “Upon the present record serious questions arise as to the admission over objection of testimony regarding a master fingerprint card bearing date 1958 and the name ‘Willie Foster, Jr.,’ . . . in the absence of testimony that the prints on these cards were made by defendant. A discussion of these questions is deemed unnecessary. If they arise at all at the next trial, presumably there will be additional evidence as to when and by whom these prints were taken.” For some obscure reason, this red flag was apparently ignored by both the trial judge and the solicitor.

The fingerprint card from the master file was not introduced in evidence. Even so, introduced or not, the testimony concerning it, without evidence as to when and by whom the card was made and that the prints on the card were in fact those of this defendant, violated the hearsay rule and should have been excluded. If defendant’s conviction rested upon this evidence, it could not stand. But such is not the case.

Comparison of the latent print lifted from the flowerpot with the fingerprint on the card in the master file apparently furnished the lead resulting in defendant’s arrest. Officer Stubbs testified without objection that, following the arrest, he personally fingerprinted the defendant on 12 November 1971. The fingérprints thus obtained were placed on a card identified as State’s Exhibit 2 and delivered to Officer Adams. Officer Adams testified without objection that he photographed the print of defendant’s right index finger as it appeared on State’s Exhibit 2 and made an eight by ten enlargement thereof, which enlargement is the photograph on the left side of State’s Exhibit 1. Defendant’s right index fingerprint as shown by this enlarged photograph was then compared with the latent fingerprint lifted from the flowerpot as shown by the photographic enlargement of it; and Officer Stubbs, a fingerprint expert, testified that based on thirteen or more identical characteristics, those prints were made by the same finger. This evidence as to the common origin of defendant’s known fingerprint and the latent print lifted from the flowerpot is so overwhelming, and the prejudicial effect of the incompetent testimony concerning the master file fingerprint is so insignificant by comparison, that the incompetent evidence was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972); Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398 (1970). Unless there is a reasonable possibility that the evidence complained of might have contributed' to the conviction, its admission constitutes harmless error. State v. Smith, 278 N.C. 476, 180 S.E. 2d 7 (1971); State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971). This accords with consistent decisions of this Court that admission of technically incompetent evidence is harmless unless it is made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded. State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969). We do not think exclusion of the evidence concerning the master file fingerprint could or would have produced a different result. Defendant’s eighth assignment of error is overruled.

Defendant’s tenth assignment of error is abandoned under Rule 28, Rules of Practice in the Supreme Court.

Over objection the State was permitted to ask defendant on cross-examination for impeachment purposes whether he had committed other named criminal offenses unrelated .to the present case and for which he has not been tried or convicted. Exceptions to this line of cross-examination constitute-defendant’s eleventh and twelfth assignments of error.

When a defendant elects to testify in his own behalf, he surrenders his privilege against self-incrimination and knows he will be subject to impeachment by questions relating to specific acts of criminal and degrading conduct. Such “cross-examination for the purpose of impeachment is not limited to conviction of crimes. Any act of the witness which tends to impeach his character may be inquired about or proven by cross-examination.” State v. Simms, 213 N.C. 590, 197 S.E. 176 (1938) (emphasis added); State v. Colson, 194 N.C. 206, 139 S.E. 230 (1927). Recent cases upholding this rule include State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). Defendant concedes the rule to be as stated but requests the Court to re-examine and repudiate it. The rule is necessary to enable the State to sift the witness and impeach, if it can, the credibility of a defendant’s self-serving testimony. We therefore adhere to our prior decisions. These assignments are overruled.

Defendant assigns as error the following exchange which occurred.during cross-examination of defendant:

“Q. One more question, Mr. Foster.

A. Yes, sir.

Q. Let me ask you if you didn’t hire your own expert witness to examine . . .

Mr. Hicks: Objection, your Honor, and I would like to be heard out of the hearing of the jury on this.

Court: All right. Take the jury out.”

Following a discussion in the absence of the jury, the unfinished question was abandoned. The jury returned to the jury box and defendant rested his case.

Defendant moved for a mistrial on the ground that the unfinished question quoted in the foregoing colloquy deprived him of a fair trial. Denial of the motion constitutes his thirteenth assignment of error.

This assignment has no merit. The unfinished question was no evidence against the defendant. Moreover, the allowance or refusal of a motion for a mistrial in a criminal case less than capital rests largely in the discretion of the trial court. State v. Hines, 266 N.C. 1, 145 S.E. 2d 363 (1965); State v. Humbles, 241 N.C. 47, 84 S.E. 2d 264 (1954). The judge’s action is not reviewable except under circumstances establishing gross abuse —a circumstance not shown by this record. See State v. Guice, 201 N.C. 761, 161 S.E. 533 (1931).

The action of the court in allowing the testimony of Lawrence A. Kelly as a “rebuttal” witness constitutes defendant’s fourteenth assignment of error. Defendant argues that such evidence amounted to a reopening of the State’s case and, further, that the evidence elicited was not in fact “rebuttal” testimony.

The order of proof is a rule of practice resting in the sound discretion of the trial court. State v. Thomas, 244 N.C. 212, 93 S.E. 2d 63 (1956). “The court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial.” State v. King, 84 N.C. 737 (1881). The great weight-of authority holds that “the admission in a criminal prosecution of evidence as a part of the rebuttal, when such evidence would have been properly admissible in chief,, rests in the sound discretion of the trial judge and will not be interfered with in the absence of gross abuse of that discretion.” 53 Am. Jur., Trial, § 129. Accord, State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972); State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972): This assignment is overruled.

Defendant’s seventeenth assignment of error relates to the court’s charge on first degree burglary.

It appears that the court simply instructed the jury to disregard an inadvertent statement previously made and then proceeded to charge the jury correctly. The inadvertence was discovered immediately and the correction was prompt -and complete. This is sufficient and is all the law requires. State v. Orr, 260 N.C. 177, 132 S.E. 2d 334 (1963); Wyatt v. Coach Co., 229 N.C. 340, 49 S.E. 2d 650 (1948); State v. Baldwin, 178 N.C. 693, 100 S.E. 345 (1919). This assignment is overruled.

Defendant’s eighteenth and nineteenth assignments relate to the instructions of the court on the law pertaining to felonious, breaking or entering and non-felonious breaking or entering. Defendant contends the court erroneously defined, and failed to define, the essential elements of those offenses. These assignments are overruled for the reasons stated below.

The court submitted as permissible verdicts: guilty of burglary in the first degree, guilty of felonious breaking or entering, guilty of non-felonious breaking or entering, or not guilty. All evidence offered by the State tended to show defendant was guilty of burglary in the first degree. All evidence offered by defendant tended to show defendant was not guilty and to support his alibi that he was home in bed at the time of the burglary charged in the bill of indictment. There was no evidence tending to show that defendant may be guilty of either felonious or non-felonious breaking or . entering. “The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The 'presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). Accord, State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969). Thus the court erred in submitting the lesser included offenses of felonious and non-felonious breaking or entering, but the error was definitely in defendant’s favor and he is in no position to complain. State v. Murry, 277 N.C. 197, 176 S.E. 2d 738 (1970). The charge on these offenses, in view of the verdict, is immaterial.

Assignments four and five relate to denial of motions for nonsuit and to set aside the verdict. Evidence offered by the State was sufficient to go to the jury and support its finding (1) that the latent print lifted from the flowerpot in. the Davis home was in fact a print of defendant’s right index finger; (2) that the latent print of defendant’s right index finger was placed thereon by defendant on the occasion referred to in the indictment; and (3) that defendant was present when the crime charged in the indictment was committed and at least participated in its commission. State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972). These assignments are overruled.

On substantially similar evidence two juries have been satisfied beyond a reasonable doubt that defendant burglarized the Davis home as charged in the bill of indictment, In defendant’s second trial now under, review, we find no prejudicial error. The verdict and judgment must be upheld.

No error.