State v. Jamerson
| Decision Date | 02 January 1974 |
| Docket Number | No. 1280,1280 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Amos Glen JAMERSON, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his conviction of burglary of a residence. Section 40A--16--3, N.M.S.A.1953 (2d Repl.Vol. 6). He claims that references made by the prosecuting attorney to in-court fingerprinting (1) violated his privilege against self-incrimination and (2) were so prejudicial that he was denied a fair trial.
A latent fingerprint was lifted from a metal box located in a bedroom closet of the burglarized premises. This latent print was compared with a fingerprint card taken from the files of the Albuquerque Police Department. The evidence is that the latent print and the rolled fingerprint of the left thumb on the fingerprint card came from the same individual.
The evidence fully sustains the inference that the prints on the fingerprint card were fingerprints of defendant. Defense cross-examination attacked this inference. Defense cross-examination was also directed to the quality of the latent print, the details of 'lifting' a latent print and the technique of comparing fingerprints.
During redirect examination of the officer who made the fingerprint comparison, the State moved that the officer be allowed to take a rolled impression of defendant's left thumb 'to resolve all doubt as to whether or not the fingerprints appearing on (the fingerprint card) . . . are in fact those of the Defendant.' The motion was denied. Defendant then moved for a mistrial on the basis that the State's fingerprint motion was a comment on defendant's failure to testify.
At the conclusion of argument, upon submission of the case to the jury, defendant moved for a mistrial. The basis for the motion was an allegation that the prosecutor, during argument, had stated that any question concerning identity of the prints on the fingerprint card could have been resolved during the trial. No question of timeliness arises. Although closing arguments were not recorded, the trial judge stated, for the record, that this motion was a renewal of a motion made during the arguments to the jury. This mistrial motion asserted two grounds: (1) that the prosecutor's alleged statement was prejudicial because it was outside the evidence in the case and (2) the statement was a comment on defendant's failure to testify.
Privilege against self-incrimination.
The constitutional privilege against self-incrimination prohibits comment on a defendant's failure to testify. State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966). Defendant asserts that the motion to fingerprint defendant in the courtroom and the prosecutor's statement during jury argument are comments about defendant's failure to testify. We disagree.
The privilege against self-incrimination applies to disclosures that are 'communicative' or 'testimonial;' the privilege does not include identifying physical characteristics. State v. Mordecai, 83 N.M. 208, 490 P.2d 466 (Ct.App.1971) and cases therein cited. Fingerprints are an identifying physical characteristic. The privilege does not protect 'against compulsion to submit to fingerprinting.' Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
Fingerprinting is not within the privilege against self-incrimination. The motion during trial and the alleged statement during closing argument, both of which referred to fingerprinting, did not violate the privilege. Compare State v. Mordecai, supra; State v. Archuleta, 82 N.M. 378, 482 P.2d 242 (Ct.App.1970).
Prejudicial comment.
Defendant asserts the prosecutor's 'comments were the product of an unrestrained zeal to get before the jury facts which would inflame their passions.' Thus, he argues that the fingerprint comments were prejudicial.
In United States v. Rundle, 266 F.Supp. 173 (E.D.Pa.1967), aff'd, 384 F.2d 997 (3rd Cir. 1967), cert. denied, 393 U.S. 860, 89 S.Ct. 138, 21 L.Ed.2d 128 (1968), defendant's fingerprints were taken in open court during trial. It was held that this did not violate the privilege against self-incrimination. It was also argued that the fingerprinting in the presence of the jury was prejudicial and made the trial fundamentally...
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State v. Richerson
... ... The court held that the privilege against self-incrimination applies to disclosures that are communicative or testimonial, and the defendant was not compelled to testify against himself. We have adopted this rule. State v. Jamerson, 85 N.M. 799, 518 P.2d 779 (Ct.App.1974). There was no violation of the Fifth Amendment ... The court also held that a blood alcohol test falls within the Fourth Amendment because it constitutes a search of 'persons'; that the warrantless search of the defendant was justified ... ...
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State v. Milton
...the nonresponsive answer was ambiguous, we cannot say the trial court abused its discretion in denying a mistrial. State v. Jamerson, 85 N.M. 799, 518 P.2d 779 (Ct.App.1974). ( b) The State, directly examining a detective, asked if the detective obtained an arrest warrant on the basis of ce......
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Sanchez v. Attorney General
...of footprints, but after arrest. In each of these cases the appellate issue concerned self-incrimination. Compare State v. Jamerson, 85 N.M. 799, 518 P.2d 779 (Ct.App.1974). In support of his claim that the court had no authority to issue the order for handwriting exemplars, Sanchez cites U......
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State v. Duncan
... ... Fingerprints, however, are characterized as nontestimonial evidence and the compulsory taking of fingerprints is thus not a violation of the Fourth Amendment. State v. Jamerson, 85 N.M. 799, 801, 518 P.2d 779, 781 (Ct.App.1974); United States v. Edwards, 885 F.2d 377, 385 (7th Cir.1989). Defendant's argument is therefore without merit ... V. CRUEL AND UNUSUAL PUNISHMENT ... Defendant next argues that if his thirty-four-year sentence is ... ...