State v. Reilly

321 S.E.2d 564, 71 N.C. App. 1, 1984 N.C. App. LEXIS 3815
CourtCourt of Appeals of North Carolina
DecidedNovember 6, 1984
Docket8324SC1303
StatusPublished
Cited by8 cases

This text of 321 S.E.2d 564 (State v. Reilly) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Reilly, 321 S.E.2d 564, 71 N.C. App. 1, 1984 N.C. App. LEXIS 3815 (N.C. Ct. App. 1984).

Opinions

BRASWELL, Judge.

Fingerprints have impressed themselves as the major theme of this case. Someone committed the crimes of Breaking or Entering and Larceny at Makotos Japanese Restaurant in Boone on 21 November 1982. By his direct appeal, we are called upon to review the sufficiency of the evidence to support the conviction of defendant David Michael Reilly as the perpetrator, to determine whether to apply the plain error rule to jury instructions regarding fingerprints, and to determine whether the State’s impeachment of Reilly’s witnesses on cross-examination was proper.

In addition to these issues raised on direct appeal, Mr. Reilly, through two post-trial motions originally filed in this Court, has [3]*3asked: (1) for a suspension of the rules so as to brief and argue the inadequacy of jury instructions on fingerprint evidence and (2) for a new trial by his motion for appropriate relief on the grounds that his trial counsel was ineffective. Given the record and full transcript as brought forward, we conclude that his motion for appropriate relief may be determined on the basis of the materials before us. No further evidence need be taken and no other proceedings need be conducted. See G.S. 15A-1418(b). With regard to the defendant’s motion for a suspension of the appellate rules, we note that counsel argued plain error in his brief without waiting for any ruling on the motion. As we understand, State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), and related cases which discuss plain error, no motion to suspend the rules is required in order to raise the issue of plain error in the brief, but the brief must specifically and not obliquely, raise the issue.

The second listed question in the defendant’s brief, stated as a declarative sentence by appellate counsel, is as follows: “The trial court committed plain error by failing to properly instruct the jury on the law regarding fingerprint evidence.” We perceive that a resolution of the subject of fingerprints will resolve all of the foregoing questions and motions without regard to the label affixed. To accomplish this we now summarize the “life of Reilly” leading to his arrest and jury conviction.

For a short time (8 September 1982 to 11 November 1982) Mr. Reilly was employed as a janitor at Makoto’s Japanese Restaurant. When Reilly missed one day at work, he was discharged. The firing occurred on 11 November 1982. Mr. Reilly was last upon the premises on 19 November 1982 when he picked up his final check and performed the chore of taking out buckets of rainwater from a leaky roof, for which he was paid.

Mr. Reilly had moved to Boone in August 1982 from Massachusetts by way of New Knoxville, Ohio, in order to establish a fellowship of The Way International in Boone. While in Ohio he had met Pat Yacongis and Lee Metzger who also went to Boone and who were among the several witnesses for the defendant.

On the morning of 21 November 1982 the restaurant’s previously locked safe was found at the bottom of the stairs, open, empty, and damaged, and with several thousand dollars in cash and charge slips missing. An employee time clock was broken, a [4]*4cigarette vending machine was destroyed, and the premises were generally vandalized.

The cigarette machine stood at the bottom of the stairwell in an area partitioned for it. Mike Brandon, a co-assistant manager, testified that on his arrival the next morning he found the door to the cigarette machine hanging open, a few coins lying in the bottom of it, and the lock torn open so it could not be closed back. In describing what he saw at about 11:15 a.m. on the same day, Captain Arlie Isaacs of the Boone Police Department said that the “cigarette machine was, had been beaten open with the door standing open.”

Captain Isaacs, an expert in lifting and comparing fingerprints with thirteen and one-half years’ experience, made numerous lifts of latent fingerprints. Latent fingerprints taken from the damaged cigarette machine at 12:20 p.m., 21 November 1982, matched those of defendant Reilly, according to the testimony of Captain Isaacs and S.B.I. Special Agent Navarro, also a fingerprint expert. Captain Isaacs also testified that there were no similarities between the latent fingerprints identified as being made by Mr. Reilly and the fingerprints taken of other employees.

Captain Isaacs obtained impressions of the actual fingerprints of Mr. Reilly from him on 21 December 1982. Mr. Reilly was arrested on 31 December 1983. The Miranda warnings were fully given.

Since the defendant at trial contended that his fingerprints were lawfully placed on the machine, the following quote from Captain Isaacs’ testimony was extremely incriminating:

He [defendant Reilly] stated that my fingerprints couldn’t have been on the machine because I had no damn business around the machine, I don’t smoke and I don’t use matches.

Pinpointing the location of the fingerprints found on the cigarette machine was also crucial in this case. The machine was actually in the courtroom and observed by the jury. Captain Isaacs was asked: “Would you show the Jury where you found the prints, sir.” After stepping down to the machine, Isaacs said:

[5]*5I first dusted the outer area of the machine, outer structure and not finding anything of value; come down through the inside area of the cigarette machine, and dusted the, this portion here (pointing) which is obvious. I lifted approximately four fingerprints of value from this side of the cigarette machine. (Emphasis added.)

On another occasion Isaacs said that the prints were “lifted from the metal portion of the inside of this machine over here.” Other answers of Isaacs revealed that the prints he lifted would have been placed there within forty-eight hours and that “at the end of sixty hours then the print would begin to deteriorate.” The lifted latent prints matched the defendant Reilly’s right index, middle, and little fingers.

The defendant offered evidence. The defense was alibi. On that evening Reilly said he went bowling, visited with a friend, watched two movies on TV, returned home about 12:30 a.m., and went to bed. These events were corroborated by several witnesses.

The defendant argues that his fingerprints were affixed to the cigarette machine in a lawful manner and at a time other than the time of the crime. As janitor he had vacuumed under and around the machine. He testified that he was in the habit of inserting his hand into the machine’s vending slot in order to obtain matches to light the wood stove located in his home. It was verified that the defendant had a wood stove.

The vending machine was so programmed that when someone purchased a pack of cigarettes the machine would also dispense a pack of matches if the purchaser pressed a separate button to obtain them. If the customer failed to press the button and take his matches from the slot, the next person [whether customer or stranger] to press the matches button would get free matches without making a purchase. Mr. Reilly was aware of this feature and said he used this knowledge to keep himself supplied with matches.

Mr. Randy Greer, owner of the cigarette machine, testified that the machine had “trips” that turn and “throws them [matches] straight down and hit here and they fall in the tray,” which is the same tray that the cigarettes fall into. Both cigarettes and matches are removed by hand from the same tray.

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State v. Reilly
321 S.E.2d 564 (Court of Appeals of North Carolina, 1984)

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Bluebook (online)
321 S.E.2d 564, 71 N.C. App. 1, 1984 N.C. App. LEXIS 3815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reilly-ncctapp-1984.