State v. Clark
| Decision Date | 06 November 1979 |
| Docket Number | No. 45,45 |
| Citation | 298 N.C. 529,259 S.E.2d 271 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Whalen CLARK. |
Keith M. Stroud, Charlotte, for defendant.
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,
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...
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State v. Parton, 81
...offer evidence to implicate the defendant in the commission of another distinct, independent, or separate offense. State v. Clark, 298 N.C. 529, 259 S.E.2d 271 (1979); State v. Logner, 297 N.C. 539, 256 S.E.2d 166 (1979); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). However, where ......
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State v. Rinck, 45
...at those times to instruct the jury that such evidence was competent only against a particular defendant. Compare State v. Clark, 298 N.C. 529, 259 S.E.2d 271 (1979). B During its case-in-chief, the State offered the testimony of Mrs. Denise Allen, a dispatcher with the Catawba County Sheri......
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State v. Hunt
...The court instructed the jury not to consider it and we assume the jury followed the court's instructions. State v. Clark, 298 N.C. 529, 259 S.E.2d 271 (1979). There was uncontradicted evidence that the defendant Hunt had committed armed robbery. This evidence supports the finding of this a......