State v. Irick

• Decision Date: 31 January 1977
• Docket Number: No. 162,162
• Citation: 291 N.C. 480,231 S.E.2d 833
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Freddie Lee IRICK, alias Willie Lee Smith.

Page 833

231 S.E.2d 833

291 N.C. 480

STATE of North Carolina v. Freddie Lee IRICK, alias Willie Lee Smith.

No. 162.

Supreme Court of North Carolina.

Jan. 31, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Elizabeth C. Bunting, Raleigh, for the State.

William O. Austin, Charlotte, for defendant-appellant.

COPELAND, Justice.

Prior to trial, the State moved to consolidate the four charges against the defendant for trial (defendant had also been indicted for larceny of an automobile but the State wisely did not request joinder of this offense as it was apparently unconnected). The State's motion was granted. Defendant objected and moved to sever the cases, which motion was denied. Defendant properly renewed his motion for a severance during the trial as required by G.S. 15A--927(a)(2).

In his first assignment of error defendant contests both the consolidation of the cases and the denial of his motion for a severance. We first note that defendant failed to comply fully with Rule 10(c) of the North Carolina Rules of Appellate Procedure in that Exception No. 36 is not grouped under Assignment of Error No. 1 in the record. Nevertheless, we will discuss briefly defendant's contentions.

G.S. 15A--926(a) allows the trial court to consolidate for trial two or more offenses when the offenses 'are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.' Consolidation is a discretionary matter with the trial judge. State v. Harding, 291 N.C. 223, 230 S.E.2d 397 (1976); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974).

As Judge Barbee observed, the State's evidence tended to show connection of these offenses in time, place and circumstance. Both burglaries and the confrontation with the police occurred within a two-hour time span; all the alleged offenses occurred in and around Moore's Park Subdivision in Mecklenburg County. The evidence indicated a common plan to burglarize homes of the neighborhood and escape by means of a stolen vehicle parked nearby.

By statute, the court is required to grant a severance of offenses, whenever it is necessary for 'a fair determination of the defendant's guilt or innocence of each offense.' G.S. 15A--927(b). In deciding on a motion for a severance, the court is instructed to consider, whether, 'in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.' G.S. 15A--927(b)(2).

No showing has been made that a severance was necessary in this case to insure a fair determination by the jury on each charge. The evidence presented was not unusually complicated or confusing. Judge Barbee clearly and carefully separated the offenses in his instructions. The jury's ability to differentiate between the offenses was evidenced by its verdict of NOT GUILTY in 76 CR 2983 (Wood first degree burglary).

For the judge to have put the State to four separate trials would have been unthinkable. Consolidation conserved judicial time and energy and defendant was unharmed by this economy. This assignment of error is without merit and overruled.

In his next assignment of error, defendant challenges the admissibility of the fingerprint comparison. Defendant contends the expert testimony comparing the fingerprint lifted at the Hipp home and defendant's own fingerprint should not have been admitted into evidence until after a showing that the print could only have been impressed at the time the crime was committed. We believe defendant has misconstrued our cases on this subject. The effect of defendant's argument, if adopted, would be to require an absolute showing that defendant was a criminal participant before fingerprint evidence could be admitted. This we have not held not are we so inclined to hold now.

In State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), we noted the accuracy and general use of fingerprint evidence for identification purposes. The only limitation this Court has imposed on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification. State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951); State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940); State v. Huffman, 209 N.C. 10, 182 S.E. 705 (1935); State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931). We have repeatedly said that the testimony of a fingerprint expert is 'competent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission.' State v. Tew, supra, 234 N.C. at 617, 68 S.E.2d at 295; Accord, State v. Helms, supra; State v. Huffman, supra; State v. Combs, supra.

The probative force, not the admissibility, of a correspondence of fingerprints found at the crime scene with those of the accused, depends on whether the fingerprints could have been impressed only at the time the crime was perpetrated. See State v. Miller, supra; State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948); State v. Combs, supra. Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury. State v. Miller, supra; State v. Helms, supra; see State v. Combs, supra. It is not a question of law to be determined by the court prior to the admission of fingerprint evidence.

Defendant also contends the court erred in admitting the evidence of fingerprint identity because no 'nontestimonial identification order' was obtained pursuant to Article 14 of Chapter 15A of the General Statutes (the Criminal Procedure Act) prior to the taking of defendant's fingerprints.

After defendant's arrest, he was taken to the hospital for treatment of his wound. En route to the hospital, Officer Bailey advised him of his Miranda rights. While in custody at the hospital, he was fingerprinted by another police officer. No attorney was present at the time and defendant was not specifically informed that he had a right to counsel during the fingerprint identification procedure.

Defendant concedes in his brief that the taking of his fingerprints by police officers does not violate the Fourth or Fifth Amendments of the United States Constitution. Rather, he argues that, absent exigent circumstances, Article 14 of Chapter 15A requires the police to first obtain a judicial order before fingerprints can be taken. G.S. 15A--271 to --282. If such an order is required, defendant maintains, under the same statute, he was entitled to have counsel present during the nontestimonial identification procedure, to be advised of this statutory right, and to be advised that an attorney would be appointed if he could not afford to retain counsel. G.S. 15A--279(d).

We believe that G.S. 15A--271 et seq. was not intended to apply to this defendant. Although G.S. 15A--272 clearly provides that a request for a nontestimonial identification order may be made after as well as prior to the arrest of a suspect, several factors lead us to the conclusion that the statute was not aimed at in custody defendants.

First, other provisions of the statute are inconsistent with the idea of an in custody accused. The order, outlined in the statute, requires the person named to appear at a designated time and place to submit to nontestimonial identification procedures. G.S. 15A--274. This provision makes little sense as applied to one already in custody. G.S. 15A--276 provides for a possible contempt sanction in the event the person named in the order fails to appear, an unnecessary sanction for one already in custody.

The official commentary indicates the statute was designed to give North Carolina law enforcement officials a new procedure for investigating 'suspects.' Official Commentary, G.S. ch. 15A, art. 14 (1975). G.S. 15A--272 provides that nothing in this article 'shall preclude such additional investigative procedures as are otherwise permitted by law.' Elsewhere in the Criminal Procedure Act, under Article 23, we find G.S. 15A--502(a)(1) which allows the police to fingerprint a person charged with the commission of a felony or misdemeanor when he has been '(a)rrested or committed to a detention facility.'

Construing these statutes so as to achieve a logical relationship and to effectuate apparent legislative intent, we hold that Article 14 of Chapter 15A applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in custody accused. Defendant in this case admits that he was in custody at the time of the fingerprinting.

The fingerprint evidence was properly admitted and all the assignments of error challenging it are overruled.

In several assignments of error defendant contends the court should have granted his motion for judgment as of nonsuit in the Hipp first degree burglary case.

On a motion for nonsuit the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976).

The applicable test for determining the sufficiency of the evidence in a case involving circumstantial evidence was stated by Justice Lake, speaking for our Court, in State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967):

'The test of the sufficiency of the evidence to withstand such a motion is the same whether the evidence is circumstantial, direct, or both. (Citation omitted.) 'When the motion for nonsuit calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable...