State v. Perry , 291 N.C. 284 ( 1976 )

230 S.E.2d 141 (1976) 291 N.C. 284

STATE of North Carolina
v.
Joseph Lee PERRY.

No. 61.

Supreme Court of North Carolina.

December 7, 1976.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers and Jack Cozort, Associate Attys. Gen., Raleigh, for the State.

Richard Bircher, Carrboro, for defendant.

LAKE, Justice.

There was no error in requiring the defendant to stand before the jury and place the orange stocking mask over his head and face in the way Mrs. Powell had testified it was worn by the man who robbed and shot her. By cross-examination of Mrs. Powell, the defendant had attempted to cast doubt upon her ability to identify the defendant as the robber so masked. The court thus permitted the jury to see the defendant as Mrs. Powell had testified she saw the robber. Obviously, the experiment convinced the jury that the mask was not sufficient to obscure the features of the robber so as to prevent subsequent identification.

The defendant concedes that Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), leads to the conclusion that this action of the court did not violate the defendant's constitutional protection against self-incrimination. He contends that it violates the due process clause of the Fourteenth Amendment. We find no merit in this contention.

In the Schmerber case, the defendant was charged with driving an automobile under the influence of intoxicating liquor and, over his objection, a sample of his blood was extracted by a physician, in a medically proper manner, and the analysis thereof was admitted in evidence to show his intoxication. The defendant contended that the admission of this evidence violated the due process clause of the Fourteenth Amendment, the search and seizure clause of the Fourth Amendment and his privilege against self-incrimination under the Fifth Amendment. The Supreme Court of the United States held that all of these contentions were without merit, saying that the withdrawal of the blood and the use of the analysis thereof in evidence did not offend that "sense of justice" of which the Court spoke in Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). It, therefore, rejected Schmerber's due process argument.

As to the privilege against self-incrimination, the Court said, in the Schmerber case, "We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." It then said, "[B]oth federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture."

In Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910), the Supreme Court of the United States, speaking through Mr. Justice Holmes, said:

"A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof."

In United States v. Turner, 472 F.2d 958 (4th Cir. 1973), a defendant charged with bank robbery, which robbery had been photographed while in progress, was required to put on a wig and sun glasses, said to be "similar" to the wig and sun glasses worn by the robber, so that the jury could compare the defendant's appearance with the photographs of the robber. The Court of Appeals held that this action of the trial court did not violate the defendant's right against self-incrimination, the evidence being real or physical, not testimonial or communicative.

In United States v. Roberts, 481 F.2d 892 (5th Cir. 1973), the defendant, charged with a bank robbery, in which one of the participants was wearing a stocking mask over his face, was required by the trial court to place over his face the stocking mask worn during the robbery so as to give a witness an opportunity to testify as to the similarity of his appearance in this condition to the appearance of the masked robber. The Court of Appeals held that in this there was no error, saying that the privilege against self-incrimination afforded by the Fifth Amendment of the Constitution of the United States and made applicable to the states by the Fourteenth Amendment, offers no protection against compulsion to put on an item of apparel worn by the person committing the offense in order to facilitate identification.

In United States v. Murray, 523 F.2d 489 (8th Cir. 1975), the defendant was charged with a bank robbery, which robbery was photographed while in progress, and was required to wear before the jury a wig "similar" in style to one in his possession at the time of his arrest and similar to the hair style of a codefendant at the time of the robbery. The Court of Appeals said, "The trial court properly required the defendant to place the wig on his head to assist the jury in determining whether he was in fact the person who had been photographed participating in the robbery."

In LaBlanc v. People, 160 Colo. 575, 418 P.2d 888 (1966), the defendant was convicted of burglary and rape. He contended that he was entitled to a new trial because the trial court had required him to put on clothing, found in his car and similar to the description given by the prosecuting witness of the clothing of her assailant, and exhibit himself therein to the jury. The Court held that in this there was no error since "it gave the jury an opportunity to see him as the victim saw him, and had a bearing on the accuracy of his identification."

In 8 Wigmore on Evidence (McNaughton Rev.), § 2265, it is said that the privilege against self-incrimination is not violated by "removing from or placing on a suspect shoes or head coverings or other clothing" or by "requiring a suspect to appear in court, stand, assume a stance, walk or make a particular gesture."

In State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104 (1951), this Court found no error in the admission of testimony of a police officer to the effect that the bare footprint of the defendant taken by the officers was identical with a bloody footprint found at the scene of the crime, the court saying through Justice Ervin, "These [cited] North Carolina cases are in accord with well considered decisions in other jurisdictions to the effect that the constitutional privilege against self-incrimination is not violated by the introduction of evidence of fingerprints to identity the accused, even where the fingerprints of the accused are obtained by coercion."

Thus, the defendant's concession in the present case that to require him to place the stocking mask upon his head and face in the presence of the jury did not violate his constitutional right against self-incrimination was well advised. It is likewise clear that this action of the trial court did not violate the due process clause of the Fourteenth Amendment to the Constitution of the United States or the like provision in Article I, § 19, of the Constitution of North Carolina. See Schmerber v. California, supra. Nothing in this action offends the "sense of justice." The whole purpose of the experiment was not to identify the defendant as the perpetrator of the crimes charged, but to enable the jury to determine the correctness of his contention that the wearing of this mask by the perpetrator of the offenses made it impossible for Mrs. Powell to see his features clearly enough to enable her to identify him thereafter. The jury was fully advised as to the nature and extent of the change which had occurred in the condition of the mask since it was worn by the robber. There is no merit in this contention of the defendant.

There is likewise no merit in the contention of the defendant that a mistrial should have been ordered by reason of the statement of Mrs. Powell that she had read something in the newspaper concerning a "shooting at Hardee's." This statement was elicited on cross-examination of this witness by the defendant, in which he persisted after the witness had testified that she had read nothing in the newspaper "about this case." The witness did not state what she had read about "the shooting at Hardee's." The trial court immediately instructed the jury not to consider this statement of the witness and instructed the jury that it had "nothing to do with this case whatsoever."

In State v. McVay and State v. Simmons, 279 N.C. 428, 432, 183 S.E.2d 652 (1971), we said that the allowance or refusal of a motion for mistrial in a criminal case less than capital rests largely in the discretion of the trial court. In State v. Jarrette, 284 N.C. 625, 646, 202 S.E.2d 721, 735 (1974), we held there was no error in the denial of a motion for mistrial due to testimony of a State's witness on direct examination which was not responsive to the question propounded by the prosecuting attorney, the statement inferring that the defendant had committed some criminal offense other than that for which he was on trial. We there said: "Immediately, upon motion of the defendant's counsel, the court properly instructed the jury not to consider this statement. We find in this circumstance no ground for a mistrial."

Similarly, in State v. Self, 280 N.C. 665, 671, 187 S.E.2d 93 (1972), we said there was no error in the denial of the defendant's motion for mistrial by reason of an allegedly improper question propounded by the prosecuting attorney to the State's witness, which question the defendant contended inferred the commission by the defendant of a criminal offense other than that for which he was on trial. We there said: "We hold, however, that the court's prompt action in sustaining defendant's objection to the question and in excusing the jury and instructing the solicitor not to ask further questions along that line, coupled with the court's specific instruction to the jury not to consider the question but to strike it from their mind, was sufficient to remove any possibility of error."

In the present case, the court's instruction to the jury was ample to remove from the jury's consideration any prejudicial inference which might be drawn from the unresponsive answer of the witness to the question propounded by the defendant's counsel.

NO ERROR.