State v. Clark

259 S.E.2d 271 (1979) 298 N.C. 529

STATE of North Carolina
v.
Whalen CLARK.

No. 45.

Supreme Court of North Carolina.

November 6, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt and Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the State.

Keith M. Stroud, Charlotte, for defendant.

CARLTON, Justice.

The sole question presented on this appeal is whether the trial court committed error in denying defendant's motion for mistrial after a police officer testified that he had retrieved a photograph of defendant from police records, the defendant not having testified. We find no prejudicial error.

Investigator Thomas A. Gaughen of the Charlotte Police Department, while testifying as one of the State's lead witnesses, was describing the procedure he followed when he showed photographs of various men to Jim Ellis. Ellis was attempting to identify the man he had seen searching for the T.V. set the Monday after the rape. During the photographic lineup, the officer testified that Ellis had pointed to the picture of the defendant and stated that he was reasonably certain this was the individual he had seen but that he would not make a positive identification unless he was able to see a photograph that showed more of defendant's body. After this testimony, the prosecuting attorney asked Officer Gaughen what he had done at that point and Gaughen replied, "I was able to secure a second photograph from the police files of the defendant." (Emphasis added.)

Defendant's counsel immediately objected, and made motions to strike and for a mistrial. The jury was excused from the courtroom and the trial judge heard arguments from counsel. Upon the jury's return to the courtroom, the trial judge stated to them, "The jury is to disregard the last remark made by this witness with respect as to retrieving a photo of the defendant. You are not to give that any weight or consideration in your deliberations in this matter."

Defendant now argues that the trial court's failure to allow his motion for mistrial violates the rule enunciated in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), and reiterated in numerous decisions, that the State may not, over objection of defendant, introduce evidence that accused has committed another independent criminal offense. As more completely stated by Justice Lake in State v. Duncan, 290 N.C. 741, 228 S.E.2d 237 (1976):

The general rule is that in a prosecution for a particular crime the State, prior to the defendant's taking the witness stand and thus placing his general character and credibility in issue, cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. . . . However, as there noted, numerous exceptions to this rule are also well established. One is that such evidence may be admissible to identify the defendant as a perpetrator of the crime with which he is presently charged. Another is that such evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.

Id. at 744-45, 228 S.E.2d at 239.

Defendant argues that allowing the testimony in question was tantamount to testifying that defendant had committed another distinct, independent, or separate offense and that the statement does not fall within any of the exceptions hereinabove noted.

We agree with the defendant that the facts here presented do not fall within any of the exceptions noted. However, we disagree that the questioned testimony violated the rule. We do not find that the testimony tended to show "that the accused has committed another distinct, independent, or separate offense." The jury was already aware that a second photograph of defendant existed because Ms. Alexander had previously referred to it in her testimony. At no time in his testimony did Officer Gaughen intimate that the photograph was obtained during the investigation of another criminal offense. The jury had no more reason to believe that the police had the second photograph of defendant as a result of a prior crime committed by him than that the police had simply made an additional photograph in the investigation of the crimes for which he was being tried.

The situation here presented is not unlike that presented in State v. Pitt, 248 N.C. 57, 102 S.E.2d 410 (1958). There, a State probation officer was allowed to testify both that he was a probation officer and that a certain admission was made to him by the defendant. The defendant moved for a mistrial on the ground that allowing such testimony was equivalent to telling the jury that defendant had been convicted of another criminal offense and presumably was on probation for that crime. The Court in Pitt rejected the defendant's contention. We agree with their reasoning that to conclude that the jury would assume that the defendant had a prior criminal conviction as a result of the questioned testimony would be "entirely speculation."

Furthermore, even if the jury, by some stretch of the imagination, had inferred the photograph came from a file of a separate crime, numerous decisions of this Court sustain our view that defendant suffered no prejudicial error by the admission of the challenged testimony when the trial court properly instructed the jury to disregard the testimony. In State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976), an F.B.I. witness inferred in his testimony that the defendant had escaped from prison. Defendant's counsel immediately moved for mistrial and the motion was denied. This Court found no prejudicial error because the trial court, as here, properly instructed the jury not to consider the statement.

In State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967), defendant was on trial for rape and kidnapping. A witness, in answer to defense counsel's question about his knowledge of defendant prior to the incident, replied that he had known the defendant "for other sex offenses." Again, the court promptly instructed the jury not to consider the statement and this Court held the occurrence afforded no grounds for a mistrial.

In State v. Robbins, 287 N.C. 483, 214 S.E.2d 756 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed.2d 1208 (1976), a police officer testified that he went to the Charlotte Police Department to obtain the defendant's address. He stated that the address was obtained "from an arrest record of [defendant]." Defendant objected and the court, sustaining the objection, instructed the jury to disregard any mention of the arrest record. Again, this Court found no prejudicial error, citing the rules that

"[O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so." State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938).. . . "Ordinarily where the evidence is withdrawn no error is committed." State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948).

Nothing in the record before us indicates these jury members were other than people of character and intelligence. Furthermore, even if the judge had failed to properly instruct them, we do not feel the testimony would have been prejudicial error. The record before us discloses an overwhelming case of guilt. Both Ms. Alexander and Mr. Ellis promptly and positively identified the defendant. Blood type, hair samples, license tags and circumstances pointed unerringly to his guilt. It is inconceivable to us that the jury could have reached a different result had the inadvertent statement by the witness not been made. We therefore find beyond a reasonable doubt that the evidence, even if it had been improperly admitted, would have been harmless error. See, e. g., Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); State v. Robbins, supra. We have consistently held that technically incompetent evidence is harmless unless it is made to appear that the 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), cert. denied, 404 U.S. 1023, 92 S.Ct. 699, 30 L.Ed.2d 673 (1972), and authority cited therein. Defendant's sole assignment of error is overruled.

We deem it appropriate to comment that the investigative techniques employed by the Charlotte Police Department in this case were of the finest professional quality, that the case was tried, prosecuted and defended according to the highest professional legal standards, that defendant's constitutional rights were fully accorded at every stage of the proceeding and that the diligence of the prosecutrix's neighbors was laudable.

In the trial below, defendant had a fair trial, free from any prejudicial error.

No error.