State v. Jones

• Citation: 322 N.C. 406,368 S.E.2d 844
• Decision Date: 02 June 1988
• Docket Number: No. 361A87,361A87
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Frederick JONES.

Page 844

368 S.E.2d 844

322 N.C. 406

STATE of North Carolina v. Frederick JONES.

No. 361A87.

Supreme Court of North Carolina.

June 2, 1988.

Lacy H. Thornburg, Atty. Gen., by G. Patrick Murphy, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was convicted of the second degree rape of an eighty-six-year-old woman and the first degree burglary of her home. Upon finding factors in aggravation of punishment, the trial court imposed a life sentence for the burglary. As punishment for the rape, it sentenced defendant to a term of twelve years to run consecutively to his life sentence.

This appeal concerns the admissibility of a fingerprint identification opinion rendered by an expert who did not testify at trial. We hold that the trial court properly admitted the out-of-court expert's opinion for the purpose of revealing one basis underlying a testifying expert's opinion given under N.C.G.S. § 8C-1, Rule 703.

The State's evidence, in pertinent part, showed the following:

The victim, an eighty-six-year-old widow, lived alone. Around 4:00 a.m. on 9 September 1986, she awoke to find a man standing beside her bed. Proclaiming "I'm going to get what I came for," the intruder crawled onto the victim's bed and began to beat and to choke her. He also smothered her with her bed pillows. When she turned her head toward him, he would twist her head back and threaten to kill her. The intruder forced the victim to have non-consensual sexual intercourse. He then left. After washing herself, the victim called her daughter and the police.

The daughter and her husband transported the victim to the hospital. A nurse, who participated in the examination of the victim, described her as "severely beaten." She observed that the victim had bruises on her wrist, her left eye was swollen shut and blackened, her buttocks was bruised and scratched, and her vagina was torn and bleeding.

Smithfield policeman Steve Knox arrived at approximately 4:25 a.m. Knox discovered that the bottom right pane was missing from the victim's bathroom window. While examining the exterior of the house, he observed a cinder block lying under the bathroom window. About twenty feet from the house, he found an eight-by-ten glass pane that had been broken and taped back together. Although dew had fallen that night, the side of the pane facing up was dry, while the bottom was damp.

The victim could not positively identify the intruder. At trial, she described him as a black male, wearing shorts, who had an odor of alcohol about his person.

S.B.I. Special Agent Ricky Navarro testified as an expert in fingerprint identification. He had identified one latent print found on the window pane as belonging to defendant. He based his opinion on ten points of identification and on the verification of another fingerprint expert.

S.B.I. Special Agent Troy Hamlin, an expert in forensic hair examination, testified that he had examined a hair found on the bath cloth used by the victim to clean herself after the assault. Hamlin determined that the hair did not belong to the victim. He found this hair to be similar to defendant's hair. However, due to the limited nature of the sample, he could not conclude that the hair was defendant's.

S.B.I. Special Agent David Spittle, an expert in forensic serology, testified that he tested defendant's blood and that defendant is a Type-B secretor. Spittle testified that semen found on the victim's nightgown and vagina was produced by a Type-B secretor.

Defendant presented the following pertinent evidence:

Defendant denied committing the assault. He had lived across from the victim for several years and had frequently used a path running through the victim's yard to walk to the store. Walt Sanders owns property adjoining the victim's home. A stack of building materials lies beside a storage shack on Sanders' property. A couple of months prior to the incident, defendant helped Sanders move a disabled truck from the area near the storage shack. In clearing a path for the truck, defendant handled several window frames that lay in the stack of building materials.

Sanders testified that defendant helped him move the truck and that there were window frames stacked beside the storage shed. Sanders did not know whether defendant had handled the frames.

Defendant contends solely that the trial court erred by admitting hearsay evidence that an unidentified S.B.I. expert independently examined, compared, and positively identified his fingerprint, and verified Agent Navarro's identification. After qualifying as a fingerprint expert, Navarro testified that he compared defendant's fingerprints to twelve latent fingerprint "lifts" found at the victim's home. He concluded that defendant's right little finger matched one of the lifts taken from the window pane found in the victim's yard. He testified that he found ten "points of identification" on the latent lift that corresponded with the defendant's fingerprint.

The district attorney and Navarro then engaged in the following exchange:

Q. Now do you have quality control at your laboratory in the fingerprint identification section?

A. Yes, sir, we do.

Q. Would you explain to the jury what your quality control consists of?

A. Once you receive a case into the latent evidence section and you have examined or conducted the type of examination requested by the department, if an identification is effected, this identification, the report is written, a handwritten report is made. This will be taken to another latent examiner in that section who has qualified in court as an expert and your examination and your comparison and identification has to be verified and initialled on the report before the report can be typed and mailed out.

MR. SHAW: Object and move to strike.

COURT: Overruled.

A. In this particular case my identification was verified by another latent examiner in my section.

MR. SHAW: Objection and move to strike.

COURT: Overruled, motion denied.

Defendant challenges the admissibility of Navarro's statements that his identification was verified by another latent examiner in his section of the lab. He asserts that this testimony was hearsay offered as substantive evidence to prove the truth of the out-of-court expert's opinion. The State responds that this testimony was properly admitted under N.C.G.S. § 8C-1, Rule 703 to reveal a basis of Navarro's expert opinion. We agree.

The admissibility of an expert opinion based on an out-of-court communication is now governed by Rule 703. This rule provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

N.C.G.S. § 8C-1, Rule 703 (1986).

Our Court of Appeals has interpreted this rule to permit an expert witness to rely on an out-of-court communication as a basis for an opinion and to relate the content of that communication to the jury. See In re Wheeler, 87 N.C.App. 189, 360 S.E.2d 458 (1987) (in giving opinion on whether child would be good candidate for adoption, expert could rely on information supplied by adoption preparation home where child had resided); Haponski v. Constructor's Inc., 87 N.C.App. 95, 360 S.E.2d 109 (1987) (in answering hypothetical question, expert medical witness could properly base opinion on notes made by another physician during treatment of plaintiff).

This Court also has held that Rule 703 permits an expert witness to base an opinion on the out-of-court opinion of an expert who does not testify. See State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988); State v. Smith 315 N.C. 76, 337b S.E.2d 833 Smith, 315 N.C. 76, 337 S.E.2d 833 (1985).

In Allen, a physician testified concerning the defendant's capacity voluntarily to waive her constitutional rights. As part of the basis for his opinion, he consulted a psychiatric evaluation prepared by a physician at Dorothea Dix Hospital. We held that the Dix report was properly admitted to show part of the underlying basis of the testifying physician's opinion. State v. Allen, 322 N.C. 176, ----, 367 S.E.2d 626, 630.

In Smith, the State's medical expert in part based his opinion that the victims had been subjected to sexual intercourse on his review of another physician's medical reports and conversations with two other physicians. We held that these bases met the reasonable reliance standard of Rule 703 and found no error in the admission of the opinion. State v. Smith, 315 N.C. 76, 100-01, 337 S.E.2d 833, 849.

Thus, under Rule 703, as interpreted in Allen and Smith, a testifying expert can reasonably rely on the opinion of an out-of-court expert and can testify to the content of that opinion.

This interpretation of Rule 703 accords with our pre-Rules case law. Prior to adoption of the Rules of Evidence, we set out a two-part framework for considering expert opinions based on out-of-court communication. See State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979). We explained that the trial court must: (1) consider the admissibility of the expert opinion based on out-of-court communication; and (2) if the opinion is admissible, address the extent to which the testifying expert "may repeat what was told him out of court in order to show its basis." Id. at 459, 251 S.E.2d at 410. We stated, per Justice (now Chief Justice) Exum:

Although none of [the] cases articulates any sort of universally applicable rule, the pattern of their holdings supports the following propositions: (1) a physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him...