Before Judge Fountain, presiding at the 15 May 1978 Criminal Session of Dare Superior Court defendant was tried on separate indictments charging him with both possession of and conspiracy to possess 22.4 pounds of marijuana. He was found guilty of the conspiracy charge and sentenced to five years imprisonment. The Court of Appeals,*fn1 with a divided panel, ordered a new trial. The state appeals pursuant to G.S. 7A-30(2). This case was originally argued as No. 127, Fall Term 1980.
Exum, Justice. Justices Meyer and Mitchell took no part in the consideration or decision of this case.
In this appeal the state challenges the holding of the Court of Appeals, upon which it ordered a new trial, that the trial court erred in admitting into evidence a boat charter agreement having a signature, "Milan LeDuc" affixed as "charterer," and then permitting the jury to compare known samples of defendant's handwriting with the signature on the charter agreement without the aid of competent opinion testimony.
The Court of Appeals interpreted G.S. 8-40, which deals with "proof of handwriting by comparison," and our rules of evidence, to prohibit handwriting comparisons by a jury unaided by competent lay or expert testimony. Defendant argues that the Court of Appeals was correct in holding that the charter agreement was
improperly admitted. In addition, defendant makes several cross-assignments of error under Rule 10(d) of the Rules of Appellate Procedure. The most significant assignment of error is that the evidence is insufficient to support the verdict;*fn2 therefore, argues defendant, the Court of Appeals erred in sustaining the trial court's denial of his motion to dismiss.
We decide that the Court of Appeals incorrectly concluded that the jury could not compare the handwriting samples without the benefit of opinion testimony, and that it was also error to sustain the trial court's denial of defendant's motion to dismiss. Defendant's conviction is, therefore, reversed.
The state's evidence tends to show as follows:
On 26 April 1977, a man who identified himself as Milan A. LeDuc (herein "LeDuc") chartered the Frances Ann, a sixty-five-foot fishing trawler, from its owners, two commercial fishermen, Andrew Tiner and Charles Daniels, in Fort Myers Beach, Florida. The trawler was then located at Bayou La Batre, Alabama. Tiner and Daniels had purchased the trawler on 14 April 1977. "LeDuc" had on 14 April first approached Tiner and Daniels at Bayou La Batre and told them he had earlier wanted to buy the trawler and wished to charter it. At a later meeting in Tampa, Florida, the parties agreed orally on a charter agreement which was consummated in writing on 26 April in Fort Myers Beach. The charter provided for a term of three months at a rental of $3500 per month, the first month's rent payable in advance. It also called for a $1000 security deposit. "LeDuc" paid only the $1000 security deposit in cash. Neither Tiner nor Daniels saw "LeDuc" sign the charter. "LeDuc" brought the charter to them at some point in the negotiations with the signature "Milan LeDuc" already affixed. Upon the request of Tiner and Daniels for some identification, "LeDuc" produced a Florida driver's license bearing the name "Milan A. LeDuc" and a photograph that appeared to be
that of "LeDuc." At all these meetings "LeDuc" was accompanied by the same two companions who were introduced only by their first names, which Tiner and Daniels could not recall. "LeDuc" told Tiner and Daniels that he wanted the trawler for sponge diving. Daniels had noticed diving equipment in a truck driven by "LeDuc." Neither Tiner nor Daniels could identify defendant as being "LeDuc." Daniels testified that defendant was "not the same man"; there was a "likeness, that's all." According to Tiner and Daniels, the hold of the boat was freshly painted when they bought it and there was nothing to indicate that marijuana had ever been aboard.
On 18 May 1977, between 2 and 2:30 a.m., the Frances Ann was observed moored at the dock at Stumpy Point, Dare County, North Carolina, by Raynor Twiford, a commercial fisherman who lived nearby. The boat had not been there at 10 p.m. on 17 May. Twiford observed an unidentifiable truck approach "from towards Engelhard on U.S. 264." He heard noises "similar to what it would be if they were unloading something off a boat." The truck remained in position "20 minutes at the most," then "pulled out . . . headed North on Highway 264." After this truck left the scene Twiford observed three unidentified persons come "from the direction of the Frances Ann," leave the dock and go to a nearby unlocked building where they remained about five minutes. These persons then returned to the dock and left in what sounded like a second pickup truck. Twiford could not say whether these persons were men or women.
On 22 May 1977, Leland Wise, a long-time Stumpy Point resident, who had also been observing the Frances Ann since 18 May, reported its presence at the dock to the sheriff. Wise had observed that the Frances Ann, although a fishing trawler, was not rigged for fishing and was not moored in a manner that would adequately secure the boat to the dock. There were no spring lines; there were only one light stern line and one light bow line used to moor the trawler. The door and windows to the deckhouse were open and the lights were left on.
Investigation of the vessel by law enforcement officers revealed the following: It was unoccupied. Twenty-two and fourtenths pounds of marijuana were discovered in the captain's quarters. Of some thirty latent fingerprints lifted from the vessel
and its contents, eighteen were defendant's, one was that of an investigating deputy sheriff, and the others could not be identified. Defendant's prints were found on a Caribe 55 radio, a coffee cup located in the wheel room just to the right of the wheel, a coffee can located on a cupboard by the stove, a coffee pot located on the stove in the galley, an Aunt Jemima pancake box located on a cupboard in the galley, an oil can, a cardboard Duracell battery box, a Hormel sausage wrapper located in a trash can, and a blank page in a navigational notebook. A small quantity of meat inside the sausage wrapper appeared "fairly fresh." Because of the high humidity which gives fingerprints a "shorter life span" and the nature of "the articles they were on," the fingerprint expert's opinion was, "the prints could not have been there for a very long period of time." The maximum time was "two weeks."*fn3 The vessel was equipped with navigational equipment suitable for the high seas. Marijuana seeds and green vegetable debris were found in the hold areas. Burlap bag indentations were located on the bulkheads rising five to six feet in two larger holds, and three to three and one-half feet in a smaller hold. The combined volume of the holds was 370 cubic feet. Three bunks on board appeared to have been slept in, and there were three soiled plates in the galley.
From entries in a navigational notebook and various charts found on board, it appeared that the Frances Ann was positioned in Mobile Bay, Alabama on 28 April 1977, then traveled to an area off the north coast of Colombia and Venezuela, and then up the east coast of the United States to Stumpy Point.
Finally, the state offered the charter agreement with the signature "Milan LeDuc" affixed thereto as "charterer," three
samples of defendant's handwriting and a court document bearing defendant's signature, all for the purpose of the jury's "comparing the signatures on the five separate documents pursuant to North Carolina General Statutes 8-40." This Court has examined these documents. In our opinion the known signatures of defendant are sufficiently similar to that on the charter agreement to permit a jury reasonably to infer that defendant signed the charter agreement.
Defendant offered no evidence, but moved to dismiss for insufficiency of the state's evidence. This motion was denied.
The jury acquitted defendant of the charge of possession of marijuana but convicted him of the charge of conspiracy to possess marijuana.
The first question we address is whether at trial the factfinder may compare a known sample of a person's handwriting with handwriting on a contested document and thereby determine whether the handwriting is the same on both without the aid of competent lay or expert testimony. The Court of Appeals, in State v. Simmons, 8 N.C. App. 561, 563, 174 S.E.2d 627, 629 (1970), and in the instant case, decided that "neither G.S. 8-40 [the applicable statute], nor our rules of evidence, permits the jury, unaided by competent opinion testimony, to compare writings to determine genuiness." We disagree. After examining our common law evidentiary rules, our statute, and the law in other states, we conclude the question should be answered affirmatively.
In order to understand current North Carolina law on handwriting comparison by the jury, it is necessary to emphasize that historically three separate questions have arisen. First, there is the question of the competency of a given witness to express an opinion on the genuiness of a contested writing. Second, there is the question of what may serve as a standard of comparison. Finally, there is the question of the right of the jury to compare a standard with a contested writing. Unfortunately, the Court has inadvertently confused these three questions in several cases. Martin v. Knight, 147 N.C. 564, 577, 61 S.E. 447, 453 (1908).
Originally, a person was permitted to give his opinion on the authenticity of a contested writing if he had "seen the party write or [had] obtained a knowledge of the character of his writing from a correspondence with him upon matters of business or from transactions between them." Pope v. Askew, 23 N.C. (1 Ired.) 16, 20 (1840). Essentially, the witness was allowed to ...