State v. Fulcher

• Citation: 243 S.E.2d 338,294 N.C. 503
• Decision Date: 17 April 1978
• Docket Number: No. 27,27
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. David Lee FULCHER.

Page 338

243 S.E.2d 338

294 N.C. 503

STATE of North Carolina v. David Lee FULCHER.

No. 27.

Supreme Court of North Carolina.

April 17, 1978.

Rufus L. Edmisten, Atty. Gen. by Henry H. Burgwyn, Associate Atty., Raleigh, for the State.

J. Randolph Cresenzo, Winston-Salem, for defendant.

LAKE, Justice.

Upon his appeal to the Court of Appeals, the defendant, in his case on appeal, assigned 25 alleged errors in rulings by the trial court. Eleven of these were not brought forward into the brief filed by him in the Court of Appeals and are, therefore, deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure, 287 N.C. 679, 741. Six of the remainder have not been brought forward into the defendant's brief filed in this Court and these are, likewise, abandoned. Rules 16(a) and 28(a) of the Rules of Appellate Procedure, supra.

As stated in Rule 16(a): "Review by the Supreme Court after a determination by the Court of Appeals, whether by appeal of right or by discretionary review, is to determine whether there is error of law in the decision of the Court of Appeals. Review is limited to consideration of the questions properly presented in the new briefs required by Rules 14(d)(1) and 15(g)(2) to be filed in the Supreme Court." We, therefore, shall discuss only the defendant's Assignments of Error Nos. 2, 3, 7, 15, 18, 19, 23 and 24, several of these being grouped together for the purpose of discussion. Due, however, to the serious nature of the offenses of which the defendant has been found guilty and of the sentences imposed, we have given consideration to all of the defendant's assignments of error and we find no merit in any of those so deemed abandoned.

We turn our attention first to the defendant's contentions with reference to the admission of evidence and alleged expressions of opinions by the trial judge concerning such evidence, these contentions relating to Assignments of Error Nos. 2, 3, 7, 15, 18 and 19. These contentions relate both to the convictions for the crimes against nature and to the convictions for the offenses of kidnapping and are primarily concerned with the matter of the identification of the defendant as the assailant of the two women.

Defendant's Assignments of Error Nos. 2 and 3 relate to the admission in evidence, over his objection, of photographs, State's Exhibits 3 and 5. The State's Exhibit 3 is a photograph taken by the police during the process of booking the defendant following his arrest, some two hours after the offenses are alleged to have been committed. An officer present at the taking of the photograph testified that it fairly and accurately portrayed the appearance of the defendant at that time. Each of the two women testified that it fairly and accurately portrayed the defendant as he appeared to them at the time of these offenses. Each of the three witnesses testified that he or she could use this photograph to illustrate his or her testimony concerning the appearance and dress of the defendant at the time of his arrest, with reference to the police officer, and at the time he was in their room, with respect to the women. Each such witness then described the appearance and costume of the defendant at the time in question, using the photograph to illustrate such testimony. The court, in admitting the exhibit into evidence, instructed the jury, "You may consider the photograph for the purpose of illustrating and explaining his testimony and the testimony of the girls, when testified by them at an earlier time." In this ruling there was no error. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); Stansbury, North Carolina Evidence, Brandis' Rev., § 34.

The State's Exhibit No. 5 consisted of five pairs of photographs (front and side views of each subject), one each of the defendant and four other individuals. The photographs of the defendant had been taken several years earlier when he was thinner and his hair was cut differently. All of the photographs were obtained by the investigating officer from photograph files at the police station within minutes after the offenses were committed and after the manager of the motel had stated to the investigating officer that the description by the two women of their assailant seemed to be a description of a guest in the motel, the motel registration card for whom bore the name David L. Fulcher. These photographs were promptly exhibited to the two women, separately, with no suggestion by the investigating officer as to which was a photograph of the suspect. One of the young women positively identified the photograph of the defendant as a photograph of the assailant. The other was uncertain as between the photograph of the defendant and the photograph of one of the other subjects, saying that each bore some resemblance to the assailant.

Exhibit No. 5 was admitted into evidence without any limiting instruction, none being requested. In this there was no error. Exhibit No. 5 was not offered or used at the trial to illustrate the appearance of the defendant at the time of the commission of the offenses or to illustrate the testimony of any witness concerning this. The purpose of this exhibit was to show, as it did, the exact set of photographs from which the two young women made their pre-arrest identification of their assailant. The photographs were not illustrative, but substantive evidence of that matter and were properly admitted in evidence for that purpose, if not otherwise objectionable.

The defendant contends that Exhibit No. 5 (specifically the defendant's two photographs appearing therein) was otherwise objectionable for the reason that the photographs brought to the jury's attention the circumstance that the defendant had a prior criminal record. Each such photograph, in its original form, bore upon the chest of the subject a plaque showing a prison number, this being supported by a small chain around the neck of the subject. Before the photographs were admitted in evidence, the number so shown was covered so that it was not visible to the viewer of the photograph. The defendant contends, however, that the chain around the neck of the subject of each photograph remained visible so that it was obvious that the photograph was a "Rogue's gallery" picture. He further contends that the covering of the numbers before the photographs were exhibited to the jury did not make the nature of the photographs less apparent.

It is unquestionably true, as the defendant contends, that when a defendant charged with a criminal offense does not take the stand as a witness and does not offer evidence of his good character, the State cannot offer evidence of his bad character, including his previous criminal record, nothing else appearing. State v. Williams, 292 N.C. 391, 233 S.E.2d 507 (1977); State v. Shrader, 290 N.C. 253, 264, 225 S.E.2d 522 (1976); Sizemore, Character Evidence in Criminal Cases in North Carolina, 7 Wake Forest Law Rev., 17, 30 (1970); Stansbury, North Carolina Evidence, Brandis' Rev., § 104 (1973).

On cross-examination, before the jury, of each of the young women, the defendant had previously developed the fact that the investigating officers showed the young women five photographs in the pre-arrest identification procedure and had further developed differences between the appearance of the other subjects of these photographs and the description of their assailant given by the women to the officers. The obvious purpose of such cross-examination was to discredit the identification by the women of the defendant as their assailant. Under these circumstances, it was clearly permissible for the State to put the photographs in evidence for the consideration of the jury.

In State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), pre-arrest identification procedures included the showing to the victim of a single photograph, which was a photograph of the defendant taken from police files. This photograph was introduced in evidence by the State over objection. Before the photograph was so introduced, the name of the Police Department and the date appearing on the photograph in its original form were covered by an evidence tag, as was done in the present case. The defendant there, as here, contended that the introduction of this photograph tended to apprise the jury of the fact that he had been in trouble before and suggested that he had been convicted of other crimes, thereby reflecting unfavorably upon his character.

In the Hatcher case, supra, the defendant testified. Thus, evidence of prior convictions, introduced thereafter, would have been proper. It does not appear in the reported decision whether the defendant had so testified when the photograph in question was introduced in evidence. Speaking through Justice Huskins, this Court said that the covering of the above features of the photograph left nothing upon it connecting the defendant with previous criminal offenses, so that the photograph was "only an ordinary photograph, which was offered and admitted for illustrative purposes bearing upon identification of defendant." We held, "(T)he photograph, with inscription and date deleted, was properly admitted for illustrative purposes on the question of identity."

The present case is not entirely within the coverage of State v. Hatcher, supra. In the present case, the double photograph (front and side view on the same card) of each of the four subjects, with or without the small chain visible about the neck of the subject, is so similar in style to photographs of "wanted men" displayed in post office lobbies across the nation as to leave little likelihood that the jury would fail to conclude that these were photographs taken from police files. Thus, the use of them almost inevitably conveyed to the jury the circumstance that the defendant had had prior experience with police photography and thus tended to show bad character. However, the defendant having, by his previous cross-examination of the State's...