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North Carolina v. McMillian

Filed: November 6, 1979.

STATE OF NORTH CAROLINA
v.
JOSEPH LEVON MCMILLIAN



Appeal by defendant from Small, Judge. Judgment entered 9 January 1979 in Superior Court, New Hanover County. Heard in the Court of Appeals 31 August 1979.

Clark, Judge. Judges Erwin and Wells concur.

Clark

The question on appeal is whether the evidence was sufficient to establish the identity of the accused as one of the perpetrators of the armed robbery.

It is established that in order to withstand a motion to dismiss where fingerprints of an accused are found at the scene of the crime, there must be substantial evidence of circumstances from which the jury can find that the fingerprints could have been impressed only at the time the crime was committed. See State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975), and cases compiled therein. However, fingerprints not found at the scene or not impressed at the time of the crime may have probative value and

may be admissible into the evidence if the fingerprints considered with the other evidence have a logical tendency to prove the identity of the accused as a perpetrator.

In the case before us the defendant's fingerprints were found not at the scene of the crime but on gloves discovered ten days after the robbery in an unoccupied house two blocks from the scene of the robbery. The evidence that the gloves were found in combination with the slitted pillowcase and the flight bag tends to show that the gloves on which defendant's fingerprints were found were gloves worn by one of the perpetrators.

Yet, to withstand dismissal on the question of whether defendant was one of the perpetrators, there must be substantial evidence from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed or during flight or at the time of abandoning the gloves after flight. In the instant case, however, there is no logical elimination of other times when the fingerprints could have been impressed in view of the substantial time lapse of ten days between the crime and the discovery of the gloves on which defendant's fingerprints were found. Similarly, the additional evidence that defendant did not have permission to enter the unoccupied house and defendant's denial of entry into the house are not sufficient when considered with the fingerprint evidence to carry to the jury the question of defendant's guilt. The evidence is sufficient only to establish that at some unspecified place and at some unspecified time during the ten-day period between the commission of the crime and the discovery of the gloves defendant impressed his fingerprints on the gloves. If the gloves, pillowcase, and flight bag had been discovered immediately after the commission of the crime and the flight of the perpetrators, there might have been a reasonable inference that defendant was the perpetrator who wore the gloves during the robbery and discarded them after flight. But in view of the time lapse of ten days, this inference, though permissible, is not compelling and is not sufficient to take the case to the jury.

We conclude, in the present case, as did our Supreme Court in State v. Scott, 296 N.C. 519, 526, 251 S.E.2d 414, 419 (1979), and State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967), that the evidence "is sufficient to raise a strong suspicion of the

defendant's guilt but not sufficient to remove that issue from the realm of suspicion and conjecture."

The charge of armed robbery is dismissed and ...


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