State v. Scott

251 S.E.2d 414 (1979)

296 N.C. 519

STATE of North Carolina v. Bobby Dean SCOTT.

No. 37.

Supreme Court of North Carolina.

February 5, 1979.

*416 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Clarence E. Horton, Jr., Concord, for defendant.

SHARP, Chief Justice:

The decisive question on this appeal is whether the trial court erred in overruling defendant's motion for judgment as of nonsuit. Such a motion requires the Court to consider all the evidence in the light most favorable to the State and to give the State the benefit of every reasonable inference to be drawn from it. In this case the State relied solely upon circumstantial evidence. However, if there is substantial evidence to support a finding that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be denied whether the evidence be direct, circumstantial or both. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).

The only evidence tending to show that defendant was ever in the home of Clyde Goodnight is a thumbprint found on a metal *417 box in the den on the day of the murder. The determinative question, therefore, is whether the State offered substantial evidence that the thumbprint could only have been placed on the box at the time of the homicide.

This Court has considered the sufficiency of fingerprint evidence to withstand a motion to nonsuit in a number of cases. See, e. g., State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975); State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973); State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Smith, 274 N.C. 159, 161 S.E.2d 449 (1968); State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951); State v. Reid, 230 N.C. 561, 53 S.E.2d 849, cert. denied, 338 U.S. 876, 70 S. Ct. 138, 94 L. Ed. 537 (1949); State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948). As Justice Huskins succinctly stated in State v. Miller, 289 N.C. at 4, 220 S.E.2d at 574:

"These cases establish the rule that testimony by a qualified expert that fingerprints found at the scene of the crime correspond with the fingerprints of the accused, when accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed, is sufficient to withstand motion for nonsuit and carry the case to the jury. The soundness of the rule lies in the fact that such evidence logically tends to show that the accused was present and participated in the commission of the crime.

"What constitutes substantial evidence is a question of law for the court. What the evidence proves or fails to prove is a question of fact for the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956)."

Circumstantial evidence that the fingerprint could only have been impressed at the time the crime was committed comes in several different forms. See Annot., 28 A.L.R.2d 1115, 1154-57 (1953). The form of the evidence is immaterial so long as it substantially demonstrates that the fingerprint could have been placed at the scene only at the time the crime was committed. In a number of cases the evidence has consisted in part of denials by the defendant that he was ever on the premises where the crime occurred. E. g., State v. Miller, supra; State v. Foster, supra. In others the occupant of the premises, who might reasonably be expected to have seen the defendant had he ever been there lawfully, has been able to testify that he had never given the defendant permission to come on the premises or seen him there before the commission of the crime. This kind of evidence is particularly convincing when the scene of the crime is a private residence not accessible to the general public. E. g., State v. Jackson, supra; State v. Foster, supra; State v. Tew, supra; State v. Reid, supra. In other cases the circumstantial evidence has consisted of an identification of the defendant, State v. Jackson, supra; the discovery of the fruits of the crime in his possession, State v. Irick, supra; and the establishment of a link between the defendant and the tools used in the commission of the crime, State v. Reid, supra; State v. Huffman, 209 N.C. 10, 182 S.E. 705 (1935).

When a defendant takes the stand and denies that he was ever at the scene of the crime, his inability to offer a plausible explanation of the presence of his fingerprints is some evidence of guilt. Coupled with the appearance of his fingerprints at the scene, it may be enough to send the case to the jury. See, e. g., State v. Miller, supra. In the present case defendant did not testify and offered no evidence. The Court is not permitted to infer from defendant's silence that his fingerprint could only have been impressed upon the box during the commission of the crime. "Neither the court nor the jury may draw any inference from the election by the defendant not to offer evidence in his own behalf." State v. Cutler, 271 N.C. 379, 384, 156 S.E.2d 679, 682 (1967).

The only evidence in this case to prove when the fingerprint could have been impressed was the testimony of Isabelle Goodnight, the niece of the deceased. She testified that she had lived at her uncle's house continuously since 1948, that to her knowledge *418 the defendant had never visited the house, and that during a twenty-year period she had never seen anyone but family members handle the metal box on which the defendant's fingerprint was discovered. However, Miss Goodnight also testified that in the year preceding her uncle's death she worked in Charlotte on weekdays, and on these daysas on the day of the murder she normally did not see her uncle from very early in the morning until five or six o'clock at night. Thus, during the week, she had no opportunity to observe who came to the house on business or to visit with her uncle.

The case, therefore, comes to this: Does Miss Goodnight's testimony constitute "substantial evidence" that defendant's thumbprint could only have been imprinted on the box during the course of an attempted robbery which culminated in Clyde Goodnight's death?

Statements by the occupant of the locus in quo tending to show that the defendant had never been seen on the premises where the crime occurred have played an important role in a number of cases. For example, in State v. Jackson, supra, the defendant was convicted of rape and nonfelonious breaking and entering. The State's evidence tended to show that the prosecutrix was awakened in her upstairs apartment by a man who held a pair of shears at her throat, demanded money, and then raped her. The defendant's fingerprint was discovered on a window sash inside the house. The victim, who was unable to identify the defendant by sight, identified him positively by the sound of his voice. She also testified that she had never seen the defendant before the morning of the assault. The Court held this evidence sufficient to take the case to the jury.

In State v. Foster, supra, the defendant's latent prints were found on a flower pot which had been moved during the burglary of a suburban home. The owners testified that they did not know the defendant and had never given him permission to enter their house. Defendant testified that he had not been in the house on the night of the burglary or at any other time. This evidence was held sufficient to withstand a motion for nonsuit.

On its facts, State v. Tew, supra, is probably the closest case to this one. The defendant Tew, who did not testify, was convicted of breaking and entering and larceny after his fingerprints were found on a piece of broken glass which had been removed from the front door of a service station during a robbery. The only other evidence for the State was the proprietor's testimony that she personally attended the station and had never before seen the defendant. The court held this evidence sufficient to go to the jury.

Each of the foregoing cases can be distinguished from the case at hand. In both Jackson and Foster the prosecuting witnesses were in a position to have personal knowledge of all persons visiting the premises and in both cases there was some additional evidence of guilt. In Jackson, the victim was able to identify the defendant as her assailant. Identification testimony is highly persuasive and would have been enough by itself to take the case to the jury. In Foster the defendant denied robbing the house but testified that he had no explanation of how his fingerprints came to be on the flower pot.

In State v. Tew the only evidence linking the defendant's fingerprint to the offense charged was the prosecuting witness's testimony that she had never seen the defendant on the premises before the day of the robbery. A crucial distinction exists, however, between the facts in Tew and those now before this Court. In State v. Tew the proprietor personally attended the service station and was in a position to testify of her own knowledge that the defendant had never visited the station. The weight to be given this testimony was a matter for the jury. Isabelle Goodnight, on the other hand, worked during the day and was unable to testify from personal knowledge as to who visited her uncle during her absence. In the absence of additional evidence, it is not unreasonable to infer that the defendant's fingerprint might have been impressed *419 on the box at some time prior to the homicide. In short, the evidence presented by the State does not substantially exclude the possibility that the defendant might have visited the house for some lawful or unlawful purpose in the weeks preceding the murder.

Clyde Goodnight, who had apparently retired from active farming, still raised hogs and, "once in a while," a calf. The porch where the fingerprint was found, and which served as the family's business office, was located at the rear of the house. The State's expert witness testified that the thumbprint might have been placed in the box several weeks before the homicide. It is apparent, therefore, that during that period defendant could have either entered the porch unlawfully without the occupant's knowledge or lawfully to transact business with the deceased. Isabelle Goodnight, as she freely conceded, was simply not in a position to know who came into the house "during the five week days."

In the light of all of these facts, we are constrained to hold that the evidence was insufficient to withstand a motion to dismiss. The burden is not upon the defendant to explain the presence of his fingerprint but upon the State to prove his guilt. As we observed upon a similar occasion in State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967): We reach the conclusion that the evidence introduced in the present case "is sufficient to raise a strong suspicion of the defendant's guilt[1] but not sufficient to remove that issue from the realm of suspicion and conjecture." See also State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); State v. Smith, 274 N.C. 159, 161 S.E.2d 449 (1968); State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948).

Defendant's motion to dismiss is allowed and the case is remanded to the Superior Court of Cabarrus County for the entry of a judgment of nonsuit.

Reversed.

BRITT and BROCK, JJ., did not participate in the consideration or the decision of this case.

[1] For circumstances which enhance the suspicion that defendant in this case was involved in the murder of Clyde Goodnight, see the preliminary statement of facts in the case of State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978). In that case this Court affirmed the defendant Vaughn's conviction of the murder of Clyde Goodnight.