State v. Foster
Decision Date | 12 December 1973 |
Docket Number | No. 45,45 |
Citation | 284 N.C. 259,200 S.E.2d 782 |
Court | North Carolina Supreme Court |
Parties | STATE of North Carolina v. Willie FOSTER, Jr. |
Robert Morgan, Atty. Gen., William W. Melvin and William B. Ray, Asst. Attys. Gen., Raleigh, for the State of North Carolina.
Eugene C. Hicks, III, and Tate K. Sterrett of Hicks & Harris, Charlotte, for defendant appellant.
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 736 (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, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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:
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 (Chadbourn rev. 1970).
It should be noted that these photographs were admitted over defendant's general objection and there was no request that their use 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...
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