State v. Fulton, 99

• Decision Date: 05 March 1980
• Docket Number: No. 99,99
• Parties: STATE of North Carolina v. Thomas FULTON, Jr.
• Court: North Carolina Supreme Court

Page 608

263 S.E.2d 608

299 N.C. 491

STATE of North Carolina v. Thomas FULTON, Jr.

No. 99.

Supreme Court of North Carolina.

March 5, 1980.

Rufus L. Edmisten, Atty. Gen. by William W. Melvin, Deputy Atty. Gen., Raleigh, for the State.

Larry G. Reavis, Winston-Salem, for defendant-appellant.

HUSKINS, Justice:

The court permitted Officer Everhart, over objection, to state his opinion that the tread design shown in the photograph of the shoe tracks which were found near the Family Grocery and the tread design on the bottom of defendant's tennis shoes were identical. This constitutes his first assignment of error.

Officer Everhart was not qualified as an expert witness in the field of latent evidence identification. He was, however, a trained police officer who had participated in the investigation of the armed robbery of Family Grocery and was the officer who found the shoe tracks in the field behind the store. Even so, we are discussing opinion evidence of a non-expert witness.

Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury. "The essential question in determining the admissibility of opinion evidence is whether the witness, through study and experience, has acquired such skill that he is better qualified than the jury to form an opinion as to the subject matter to which his testimony applies." State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573 (1977). Accord, State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973). Whether a witness has the requisite skill to qualify him as an expert is, nothing else appearing, a question within the exclusive province of the trial judge. State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931).

Here, no effort was made to qualify Officer Everhart. It follows, therefore, that his opinion was inadmissible because the jury was apparently as well qualified as the witness to draw the inferences and conclusions from the facts that Officer Everhart expressed in his opinion. Wood v. Insurance Company, 243 N.C. 158, 90 S.E.2d 310 (1955); State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549 (1951).

Although the trial court erred in permitting Officer Everhart to express his opinion that "the design on the dirt and the design on the bottom of the tennis shoes were the same," we are of the opinion that defendant was not prejudiced by the error because the State offered expert testimony through S.B.I. Agent Layton that the shoe tracks near the crime scene and the track design on defendant's tennis shoes were similar. Agent Layton said, "it is my opinion that the sole impression or track design on the base of State's Exhibit No. 11 (defendant's tennis shoes) is consistent with the shoe track impression represented on State's Exhibits 8(a), 8(b) and 8(c)." These latter exhibits are photos of shoe tracks in the field near the Family Grocery operated by Mr. Agha. We hold that admission of Officer Everhart's opinion testimony was harmless error beyond a reasonable doubt.

Defendant further complains in his first assignment of error that the court erred in permitting Officer Everhart to testify that defendant's Chrysler could have been drifted downhill to the new location where the officer found it "even without power steering and brakes." Defendant contends this constitutes impermissible opinion testimony. We find no merit in this contention. The officer had previously testified that he had entered the vehicle when he first discovered it, had started the motor and moved the vehicle backward and forward. At that time the vehicle was parked on an incline. Thus, the officer had personal knowledge that the vehicle was not completely disabled and any driver could permit it to drift down the incline without power steering or power brakes. Hence, it is more accurate to say that the officer was giving a shorthand statement of facts within his own knowledge rather than expressing his opinion. Defendant's first assignment of error is overruled.

Laura J. Ward, a member of the S.B.I. and an expert in the field of forensic serology, testified that examination of defendant's tennis shoes revealed the presence of human blood; that the blood type of Mr. Agha was group A, PGM type 1 and Hp type 2-1; that the blood on defendant's tennis shoes was group A, PGM 1, Hp 2-1. The witness then explained her answer as follows: "There are numerous blood groups or blood group systems present in the blood. The ABO system is the one that is most commonly recognized. You can be either a Group A, Group B, Group O, or Group AB. However, there are numerous other blood group systems present that are also genetically controlled, just as your ABO factors are, and two of the systems that were analyzed in this particular case are the PGM system, and PGM stands for phosphoglucomutase, and the other system is haptoglobin. Within the PGM system you can be basically one of three types: you can by PGM 1, PGM 2, or PGM 2-1. Within the haptoglobin system (Hp), you can be basically one of three types, Haptoglobin 1, Haptoglobin 2, or Haptoglobin 2-1."

Over objection, this witness was then permitted to say: "The combination of these blood groups occurs in approximately 11% of the United States' population." Defendant assigns admission of this statement as error, contends it has no relevancy and that the only effect of allowing the 11% figure into evidence "was to incite prejudice in the minds of the jury." Defendant argues that a city the...