USCA1 Opinion
February 8, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1379
DEREK WESLEY HALL,
Petitioner, Appellant,
v.
PAUL DiPAOLO, SUPERINTENDENT,
MASSACHUSETTS CORRECTIONAL INSTITUTION - NORFOLK,
Respondent, Appellee.
____________________
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on January 3, 1996, is
amended as follows:
Insert footnote 2 after the word "unsmudged," 4th line from
the bottom of page 5, as follows:
2. Strictly, the exhibit showing the print was not
made part of the record, and the witness who testified
to its characteristics did not speak as to non-
smudging. His testimony as to details, however,
clearly warranted such a finding. Since defendant's
constitutional claim requires a showing that the
evidence did not warrant the conviction, this factual
issue must be resolved against defendant.
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 95-1379
DEREK WESLEY HALL,
Petitioner, Appellant,
v.
PAUL DiPAOLO, SUPERINTENDENT,
MASSACHUSETTS CORRECTIONAL INSTITUTION - NORFOLK,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Richard B. Klibaner with whom Klibaner & Sabino was on brief for ___________________ __________________
appellant.
William J. Meade, Assistant Attorney General, with whom Scott _________________ _____
Harshbarger, Attorney General, was on brief for appellee. ___________
____________________
January 3, 1996
____________________
ALDRICH, Senior Circuit Judge. Defendant Derek _____________________
Wesley Hall, having been convicted in the Commonwealth's
court for armed robbery in violation of M.G.L. c. 265, 17,
was found guilty at a bench trial following the denial of his
motion for acquittal. After exhausting his state appeals he
petitioned for a writ of habeas corpus on the ground that the
evidence was insufficient to support his conviction for lack
of identification. The district court denied the writ.
Having reviewed the record de novo, Scarpa v. Dubois, 38 F.3d _______ ______ ______
1, 8 (1st Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. ____________
940, 130 L. Ed. 2d 885 (1995), we affirm.
The facts, as far as they were established at
trial, may be briefly stated. Harvard Square Cleaners,
Harvard Square, Cambridge (hereinafter the store), is a small
establishment that receives clothes from customers for
cleaning, sends them out to clean, and ultimately returns
them to customers upon receiving payment. On May 9, 1989,
the sole employee was Carmel Mhodhrain, who worked, alone,
from 7:00 a.m. to 7:00 p.m. She testified she had been
working there for some seven months. At about 4:00 p.m. a
man she had never seen before entered the otherwise empty
store. She could say no more than that he was black, of
medium height, slender, with black hair and was wearing blue
jeans and a black sweater. After inquiring about having his
leather jacket, which he had with him, cleaned, he said he
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had to use a bathroom and left. He later returned, and after
a further discussion Mhodhrain leaned on the counter and
began writing a customer slip when she felt something prick
her neck. She jumped back and saw the man holding a knife.
He then came inside the counter, pushed various buttons on
the cash register and when it opened took some $400 in cash
and put it in his pocket. Mhodhrain backed away, and, on his
orders, went into the bathroom that was behind the counter.
The man closed the door and she heard a noise as if he were
trying to tie or lock the door shut. After three or four
minutes she heard the front door close and came out, finding
a vacuum cleaner cord tied around the doorknob. She went to
the telephone but found the cord cut. She then "went to
security, the security office, and the security man came in
and he was going to call the police and then he went back to
the office to call the police from his office."
Some time after Mhodhrain returned a police officer
came and lifted fingerprints. At trial, a police fingerprint
expert testified that he compared a print taken from the
bathroom's outer doorknob, finding 20 points of comparison,
and no dissimilarities, with defendant's print on record.1
No opinion was offered as to how long the print had been on
the knob.
____________________
1. According to FBI standards 12 points of comparison is
sufficient for a positive identification.
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At trial Mhodhrain testified that "the only persons
who had access to th[e] area [behind the counter] would be
the persons working in the store or the driver who has to
bring the clothes in." There was no testimony, however, as
to whether excluding customers was her personal policy or
store policy, or who had worked the day before. She was
unable to identify defendant in the courtroom. At the close
of the Commonwealth's case defendant moved, unsuccessfully,
for a finding of not guilty on the ground that the evidence
was insufficient to sustain a finding that he was the person
who committed the robbery. He has advanced this claim
throughout direct and habeas appeals.
Where, as here, there is no evidence linking
defendant to the crime other than his fingerprint at the
scene, our question is whether it could be found beyond a
reasonable doubt that defendant left his print at the time of
the robbery. The evidence must foreclose all reasonably
viable possibilities that he could have left it at some other
time. Mikes v. Borg, 947 F.2d 353, 356-57 (9th Cir. 1991), _____ ____
cert. denied, ___ U.S. ___, 112 S. Ct. 3055, 120 L. Ed. 2d 921 ____________
(1992) (citing cases of several circuits). Indeed, the
Appeals Court here said as much. Commonwealth v. Hall, 32 ____________ ____
Mass. App. Ct. 951, 952, 590 N.E.2d 1177 (1992).
Reviewing the evidence most favorably to the
prosecution, as we must, Jackson v. Virginia, 443 U.S. 307, _______ ________
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319 (1979), we see no problem with the trial court's
concluding beyond a reasonable doubt that defendant's print
was not made after the robbery. Even on the unlikely _____
assumption that Mhodhrain left the store unlocked while she
went for the security officer, the court could sufficiently
find that defendant did not slip in and handle the bathroom
doorknob during her absence. Whether defendant's print might
have been placed on the knob sometime before the robbery is
more difficult.
The Massachusetts Appeals Court, in affirming the
conviction, reasoned that "because the fingerprint lifted
from the doorknob was unsmudged2, and since the bathroom was
used regularly by all the store's employees, the print was
likely put there by one of the last people to touch the
knob." Hall, 32 Mass. App. Ct. at 952, 590 N.E. at 1178. We ____
can agree, but to what extent does this indicate the time?
Was some, more generous, employee on duty the day before?
Were there no other prints, demonstrating survivorship? No
affirmative attempt was made to eliminate the possibility
that defendant's print had not been made the previous day.
____________________
2. Strictly, the exhibit showing the print was not made part
of the record, and the witness who testified to its
characteristics did not speak as to non-smudging. His
testimony as to details, however, clearly warranted such a
finding. Since defendant's constitutional claim requires a
showing that the evidence did not warrant the conviction,
this factual issue must be resolved against defendant.
-6-
At the same time, a doorknob is a very small area, and it is
used with pressure. Defendant's print, an exhibit, was
unsmudged. Mhodhrain had been on duty nine hours that day
and manifestly would have used the bathroom -- and, perhaps,
handling soiled clothes, for an occasional wash-up. Four
judges, before ourselves, have thought the inference most
compelling that defendant's print was made at the time of the
robbery.
In this circumstance should we count against the
Commonwealth a doubt based on the prosecutor's failure to
have asked the obvious questions that would have cinched its
case? Does this lapse indicate the answers would not have
cinched the case, but the contrary? Admittedly, this is a
long shot. If the trial had been in the federal court we
might have added to that remote possibility the breath of our
general authority, not simply to rebut the remote
possibility, but, in part, to prevent government counsel from
leaving even the appearance of avoiding evidence contrary to
its position. We do not have such authority over our sister
courts.
Affirmed. _________
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