State v. Noe, 13650

• Decision Date: 21 December 1976
• Docket Number: No. 13650,13650
• Parties: STATE of West Virginia v. Freddie Joe NOE.
• Court: West Virginia Supreme Court

Page 826

230 S.E.2d 826

160 W.Va. 10

STATE of West Virginia v. Freddie Joe NOE.

No. 13650.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1976.

Syllabus by the Court

1. Fingerprint evidence, being circumstantial evidence, will not sustain a conviction in a criminal case when such evidence, as presented, is the only evidence linking defendant to the commission of the crime, creates a mere suspicion of guilt, does not prove the actual commission of the crime charged and fails to prove guilt to the exclusion of every reasonable hypothesis of innocence.

2. Although the opinion of an expert is admissible if given within the field of his expertise, his opinion regarding matters outside his field of expertise and within the knowledge of persons of common experience and observation is not admissible.

3. It is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify.

Herbert H. Henderson, Huntington, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

WILSON, Justice.

On July 19, 1974, a jury in the Circuit Court of Cabell County found Freddie Joe Noe guilty of the first degree murder of Donna Gail McClung and recommended mercy. His motion to set aside the jury verdict was denied by the Circuit Court of Cabell County by order entered June 6, 1975. Noe appeals claiming that the trial court committed various errors involving: the sufficiency of fingerprint evidence; the admissibility of certain evidence; the withholding of certain evidence; the propriety of the prosecutor's final argument; and instructions.

We award Noe a new trial primarily because the confused state of the evidence regarding fingerprints casts serious doubts on its legal sufficiency to sustain a conviction. However, we have also found error in connection with the admission of certain opinion evidence and in connection with the prosecutor's closing argument. We do not consider any contention regarding errors in instructions. No specific errors concerning instructions were assigned, briefed or argued. Therefore, they are deemed waived.

Donna Gail McClung, a young wife, mother, student and part-time employee of the library at Marshall University, left the library at about 6:00 p.m. on August 26, 1971, and was found dead in her apartment, No. 13, at 306 18th Street in the City of Huntington, during the mid-afternoon of August 29, 1971.

When found, the body of the deceased was lying on the floor on its back with the legs widely spread. The body was clad only in a dress which was pulled up above the breasts. White panties were on the floor close to the right foot, and a sanitary napkin was on the floor close to the buttocks.

An autopsy was performed on August 29, 1971. It was determined that death was caused by manual strangulation and had occurred two or three days prior to the autopsy. There was no evidence of sexual intercourse.

Apartment No. 13 had been occupied by decedent and her husband, Gordon William McClung, for about a year.

Noe and his wife occupied an adjoining Apartment, No. 12, but before their marriage, Mrs. Noe had occupied Apartment No. 13.

Access to Apartments Nos. 12 and 13 was by a common hallway, and on the exterior of the building, the two apartments had adjoining balconies separated by a distance of only a few inches.

Testimony showed that Noe had visited with decedent's husband in Apartment No. 13, at least on a few occasions; that Noe had turned over to Mr. McClung a key to Apartment No. 13 which apparently was one which had been inadvertently retained by Mrs. Noe after she had vacated it; that on one occasion, Noe went to Mr. McClung's place of employment to get McClung's keys because Mrs. McClung had locked herself out of the apartment.

There is no evidence showing any particular association between Noe and Donna Gail McClung at any time. There is no evidence of any incidents, pleasant or unpleasant, between them. There is no evidence, specifically, showing the whereabouts of Noe at any time between August 26, 1971, when Donna Gail McClung left the library and August 29, 1971, when she was found dead. There is no physical evidence by means of which Noe was shown to have participated in any acts which caused the death of Donna Gail McClung.

The principal evidence upon which the State relies for conviction is fingerprint evidence. It is the deficiency in this evidence upon which the defense relies for reversal.

During their investigation of the death of Donna Gail McClung, the police authorities searched for fingerprints in the McClung apartment and on both sides of the doors leading to and from the external balcony. Various fingerprints were found on both sides of a pane of glass in the balcony door.

The attention of the police became focused on this pane of glass when it was noticed, two or three days after the discovery of decedent's body, that one strip of moulding at the top of one glass panel on the outside of the door was missing. One of the remaining pieces of moulding was loosely held by a nail, and there was nothing securing the other two pieces of moulding.

Having determined that there were fingerprints on both sides of the glass, the police proceeded to remove this one glass panel, lifted the prints from it and transferred them to two 3 x 5 cards. These two 3 x 5 cards were admitted as State's Exhibits Nos. 11 and 12. Each exhibit contains writing. The writing on Exhibit 11 indicates that the fingerprint is 'off of glass taken from rear door of Apt. 13' and the writing on Exhibit 12 indicates that the fingerprint is 'off of glass taken out of rear door to Apt. 13.' There is other writing on the two exhibits but we cannot tell the significance or propriety of it, and we do not consider it.

When Noe was arrested, a full set of his prints was taken by rolled impression, and the card containing this full set of his prints was introduced into evidence as Exhibit No. 14.

The State's fingerprint expert testified that one of the latent prints on State's Exhibit No. 11 was the same as the right middle finger of the print contained on the card of Noe's prints as shown in State's Exhibit No. 14 and that one of the latent prints contained on State's Exhibit No. 12 was the same as the right thumb print shown on Noe's fingerprint card being State's Exhibit No. 14.

It is important to note that State's Exhibits Nos. 11 and 12 containing prints which were lifted from the pane of glass contained a total of two prints and three partial prints. One print and one partial was on one of the exhibits, and one print and two partials were on the other exhibit. We cannot tell which of the two exhibits contained the one print and one partial and which contained the one print and two partials. We cannot tell whether the prints and partials on State's Exhibits Nos. 11 and 12 were taken from the same or opposite sides of the glass.

The officer through whom State's Exhibits Nos. 11 and 12 were admitted had, prior to their admission, testified at length regarding the direction of various fingerprints on the pane of glass, that they were on opposite sides of the glass and that one of them extended down behind one of the pieces of moulding. However, the State's evidence as introduced fails to establish that the fingerprint which extended beneath a piece of the moulding was either of Noe's fingerprints and fails to establish that Noe's two fingerprints were on opposite sides of the glass.

Thus the only fingerprint evidence really is merely that a print of Noe's right thumb and a print of his right middle finger were on a pane of glass in the doorway of the McClung apartment. Regardless of what the State may have known or may have assumed, that is all that the State's proof amounts to. This confusion or lack of certainty when combined with the unidentified partial prints contained on State's Exhibits Nos. 11 and 12 scarcely justifies the State's argument that Noe had removed the moulding from the glass panel and had removed the glass pane in the doorway so that he could and did gain access to the decedent's apartment at the time of the crime.

The fingerprint evidence being circumstantial evidence must be carefully scrutinized. It is certainly sufficient to show the defendant's presence at some time at the balcony doorway to the McClung apartment. In view of the testimony of Mr. McClung that he and his wife had cleaned the panes of glass in the doorway leading to the balcony at some time around the middle of June, 1971, the existence of the fingerprints on a panel of glass is even sufficient to show the presence of the defendant at that doorway at some time between the middle of June and the time after decedent's body was discovered when the police authorities lifted the latent prints from the pane of glass. It does not show the presence of the defendant at any particular time. Specifically, standing alone, it does not show the presence of the defendant at any time between August 26 when the decedent left the library and August 29 when her body was found.

The State, in reliance upon State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967), contends not only that the weight of circumstantial evidence is a question for the jury but also contends that it is for the jury to determine...