The opinion
Judge EAGLES
dissenting.
The fingerprint evidence, though not clear as to the fingerprints’ exact location, is an aspect of the case for the jury’s consideration but the defendant is entitled to have the jury consider it only after they have been properly instructed consistent with the mandate of State v. Bass, quoted by the majority. Here, the court’s instruction did not contain adequate guidance for the jury and that omission constitutes error.
While evidence is unclear from the record on appeal as to the exact place on the cigarette machine where the matching prints were found, it is clear that the fingerprint evidence was the determinative factor in the decision to charge defendant Reilly rather than some other present or former employee. Captain Isaacs testified that he found the critical prints when he was examining the inside of the machine, but their being found on the machine is not inconsistent with defendant lawfully having placed his prints there while reaching and feeling for matches which had been “tripped” but had only fallen part way into the vending machine tray. Defendant, as a matter of habit, obtained matches *18 from the machine and would have touched an interior area of the vending slot to retrieve a pack of matches which had fallen only part way. Prints placed in such an area would be locatable and capable of being lifted by officers only from the inside of the machine.
Defense counsel, for whatever reason, failed to request the State v. Bass instruction, failed to tender a proposed instruction and did not make timely complaint to the trial court about the omission of an adequate fingerprint instruction. No objection or exception appears. Ordinarily, Rule 10(b)(2) would bar appellant from asserting that error here, unless its omission from the trial court’s charge amounted to plain error which would excuse the Rule 10(b)(2) violation.
The Supreme Court, in adopting the plain error rule, described it as:
Fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where the error is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty. State v. Odom, 307 N.C. 655 , 300 S.E. 2d 375 (1983).
The facts here are such that the fingerprint evidence was fundamental and basic, indeed crucial, to the State’s case and without the fingerprint evidence to tie defendant to the crime scene at the time in question, the State’s case is highly questionable. The instruction omission permitted the jury to weigh the fingerprint evidence without guidance as to the controlling law and clearly had a probable impact on the jury’s verdict.
The State contends, and the majority agrees, that the fingerprint evidence here is a subordinate feature of the case. While fingerprint evidence usually may be characterized as a subordinate feature of a criminal case, State v. Bradley, 65 N.C. App. 359 , 309 S.E. 2d 510 (1983), in the instant case it is the cornerstone on which proof of the identity of the perpetrator rests. *19 No other evidence, direct or circumstantial, links defendant to the scene of the crime more closely than anyone else. There were more than four keys which had been in the hands of employees or former employees who could have duplicated them. Employees other than defendant recently had terminated their employment at the victimized establishment.
To say, as the majority does, that the absence of the proper instructions on fingerprint evidence had no probable impact in the jury finding of guilt is, in my judgment, unrealistic and ignores the plain fact that the identification of defendant Reilly as the perpetrator rests on the fingerprint evidence as its keystone, around which the majority has marshalled every other possibly relevant circumstance, however remote. I would hold that the fingerprint evidence is not a subordinate feature of the case but is one on which, under these facts, the trial court should have instructed even without a special request.
North Carolina has approved the doctrine of plain error as an extraordinary relief mechanism to avoid the potentially “harsh results” of Rule 10(b)(2) but has not yet reversed a conviction based on plain error. This case presents a factually appropriate and legally correct occasion to invoke the plain error doctrine to reverse the conviction.
Except as it showed membership in The Way International as a common bond among the defendant’s witnesses and defendant and a possible source of bias, the detailed cross examination of the alibi witnesses about the operations of The Way International exceeded the bounds of relevancy. It should not have been permitted to range so far afield. However, it was permitted for the most part without objection by defense attorney. I agree with the majority that whatever error might have occurred in permitting those questions did not amount to an abuse of the trial court’s discretion and was not of the magnitude to merit a new trial, nothing else appearing.
Notwithstanding the lapses of trial counsel in failing to suggest and tender a fingerprint instruction, failing to object and except to its omission and failing to object to the irrelevant portions of the cross examination of defendant’s alibi witnesses about The Way International, I would concur in the portion of the majority opinion which denies the motion for appropriate relief for ineffec *20 tive assistance of counsel. In summary, I would vote to reverse the conviction and award a new trial based on the trial court’s failure to properly instruct the jury as to its consideration of fingerprint evidence.