Colvin-El v. State

ROBERT M. BELL, Judge,

in part I. of which ELDRIDGE, J. joins.

I respectfully dissent from the affirmation of the death penalty in the case sub jud'ice. I do so for two reasons: (1) *186the evidence was wholly insufficient to establish the petitioner’s principalship in the first degree and (2) the trial court erred when it refused to dismiss the jury after it had deliberated for a reasonable amount of time.

I.

A.

This is the third time this case has reached this Court for review. On the first occasion, see Colvin v. State, 299 Md. 88, 472 A.2d 953 (1984) (Colvin-el I), the petitioner’s convictions and death sentence were affirmed. Pertinent to the issues sub judice, the majority in that case held that the evidence that the petitioner’s fingerprints were on broken glass from the basement door, the supposed point of entry, and the petitioner pawned two items taken in the daytime housebreaking and robbery sufficiently proved the petitioner’s criminal agency. 299 Md. at 110-112, 472 A.2d at 964. As to the former, relying on, among others, the facts that the premises were a private residence not generally accessible to the public and the basement was located in the back of the house, the Court concluded “that the circumstances surrounding the fingerprints found on the glass broken on the basement door tend to exclude the hypothesis that the print was impressed at a time other than that of the crime.” Id. at 111, 472 A.2d at 964.

The petitioner filed post conviction proceedings, alleging the incompetency of his counsel. The hearing court granted him a new sentencing hearing but denied relief as to the convictions. We reviewed those proceedings at the instance of the State. State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988). (Colvin-el II) We affirmed.

The Court was not impressed insofar as the petitioner’s incompetency of counsel claim was directed to the petitioner’s convictions. It noted:

None of the foregoing demonstrates the reasonable probability that Colvin-El would have been found innocent of first *187degree murder and of the underlying felonies if Payne [the petitioner’s counsel] had utilized the specified information for cross-examination or as evidence in a defense case. First, none of the Monday morning quarterbacking casts any doubt on the fact that Colvin-El was present at the basement door of the Sorrell home after Ms. Susan Sorrell had left and before Mrs. Buchman’s body was found. $$$$$$
Thus, it is fanciful to suggest, as Colvin-El does, that Payne should have caused the jury to be uncertain whether Colvin-El was the thief because he might have found the jewelry or might have received it from the true thief sometime after the crime. That does not explain away the fingerprints.

314 Md. at 14, 548 A.2d at 512 (footnote omitted). Moreover, the Court observed:

The information developed at the post conviction hearing does not generate any reasonable probability that Colvin-El was not at least an accomplice in the murder. If the basement door was only a point attempted entry, and not a point of actual entry as Detective Sturgeon testified, the discrepancy does not undermine the fact that someone entered the house, murdered Mrs. Buchman and stole jewelry and other property. There is no reasonable probability that Payne could have done anything to alter the fundamental fact that Colvin-El was present and at least aiding and abetting the daytime housebreaking and robbery.

Id. at 15-16, 548 A.2d at 513.

As regards the sentencing phase of the proceedings, the Court assumed that counsel’s ineffectiveness may have resulted in the jury not concluding that there was more than one person involved in the murder and that, but for that ineffectiveness, counsel would have been able to adduce sufficient evidence to generate a reasonable doubt as to whether the petitioner was the actual killer. To the extent that the petitioner was prejudiced by that there was prejudice, “if any,” Id. at 16, 548 A.2d at 513. Curiously, while mentioning, *188as relevant to resentencing, the presence of strangers in the neighborhood and the movement of the bicycle from the neighbor’s yard, the Court did not specify that the jury should also consider, when deciding the first degree principalship issue, whether the petitioner entered the premises through the basement door.

B.

To be eligible for the death penalty, a defendant must have been a principal in the first degree; he or she must be shown to have been the actual perpetrator of the murder. Maryland Code (1957, 1992 Repl.Vol.) Art. 27 § 413(e)(1); Maryland Rule 4-343(e); Wiggins v. State, 324 Md. 551, 584, 597 A.2d 1359, 1375 (1991), cert. denied, — U.S. —, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992); Johnson v. State, 303 Md. 487, 510, 495 A.2d 1, 12 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907, (1986); Stebbing v. State, 299 Md. 331, 371, 473 A.2d 903, 923, cert. denied, 469 U.S. 900, 105 S.Ct. 276, 83 L.Ed.2d 212 (1984).1 It is of no consequence that, in Colvin-el I, we affirmed the petitioner’s conviction of first degree murder and, in Colvin-el II, declined to upset it on the basis of the record developed at the post conviction proceeding. Those cases demonstrate only that the evidence has been found to be sufficient to convict the defendant of being at least a principal in the second degree; they do not relieve the trier of fact in the sentencing proceeding of its obligation of determining, as a prerequisite to imposing the death penalty, whether the petitioner, in fact, committed the murder by his own hand. See Art. 27 § 413(e)(1).

In reviewing the sufficiency of the evidence of the petitioner’s principalship in the first degree, we apply the test enunciated in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979): “Whether, after viewing the evidence in the light most favorable to the prosecution, *189any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Wiggins, 324 Md. at 566-67, 597 A.2d at 1366; Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980). Furthermore, the death penalty is qualitatively different from other sentences. Consequently, greater certainty is required in finding that the jury’s conclusion that the petitioner was the principal in the first degree was correct and rested on proper grounds. See Mills v. Maryland, 486 U.S. 367, 376-77, 108 S.Ct. 1860, 1866-67, 100 L.Ed.2d 384, 395-96 (1988); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978). Moreover, because the evidence upon which the finding that the petitioner was the principal in the first degree is premised is entirely circumstantial, that finding “is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West v. State, 312 Md. 197, 211-212, 539 A.2d 231, 238 (1988). See also Hebron v. State, 331 Md. 219, 224, 627 A.2d 1029, 1030-31 (1993); Wilson v. State, 319 Md. 530, 536-37, 573 A.2d 831, 834 (1990). Whether or not the matter is tried to a jury, the question whether the circumstances are inconsistent with a reasonable hypothesis of innocence is addressed to the trial court; it must be decided initially by the trial court, for if there are no such circumstances, then there is no basis for a jury decision on the matter. Hebron, 331 Md. at 233-34, 627 A.2d at 1036.

C.

The majority rejected the petitioner’s argument that the State did not sufficiently prove that he was a principal in the first degree on two grounds. First, relying on the testimony of the victim’s granddaughter, it held that it was established that the petitioner’s fingerprints were impressed on the basement door glass at the time of the crime. Then, reasoning from the nature of the document and its location, the majority opines that the jury could logically have determined that the fingerprint on the notebook page had nothing to do with the *190murder. In reaching these conclusions, it all but ignores the other fingerprint evidence and the petitioner’s point of entry argument.2

It is not disputed that the petitioner possessed within eight days of the murder, two items which were among the pieces of jewelry taken from the Surell home. Nor is it disputed that the petitioner’s fingerprints were impressed on pieces of glass from the basement door window. From this, the State theorizes that the petitioner broke the glass in the door, placed it on the steps, reached into the house and undid the security locks, opened the door, and entered the Surell home. While in the home, it continues, he was surprised by the victim. Grabbing a knife from the kitchen, he stabbed her 28 times, causing her death. Then, the petitioner took the money from the victim’s handbag and wallet and went into the master bedroom and took the jewelry. Thus, critical to the State’s theory of the case is that the petitioner entered the house through the basement door.

During the resentencing proceeding, the issue whether the petitioner could have gained entry through the basement door was hotly contested. Unlike at his original trial and sentenc*191ing,3 Detective Sturgeon was cross-examined extensively on whether, given the limited extent that the door could open, it was possible for the basement door to be the point of entry. Sturgeon testified that he could find no point of forced entry other than the basement door and, so, that the basement door had to be the point of entry. The petitioner’s counsel’s observation that, “Even though the door could only be opened four inches,” was met only with the response, “Approximately four inches.” Sturgeon later volunteered that “It looked wide enough for somebody to get ... no, not me.”

Detective Sturgeon’s testimony revealed the reason the door could not be fully opened — a white metal storage cabinet was up against the door. A photograph of that area of the basement confirms Detective Sturgeon’s observation with regard to the white metal storage cabinet.4 Indeed, in Colvin-el II, 314 Md. at 10, 548 A.2d at 510, the Court described that photograph as showing

a white metal storage cabinet in front of the hinged side of the door standing to a height slightly above that of the door knob. The back of the cabinet is flush against a wall which is perpendicular to the exterior wall in which the door is set. The front of the metal cabinet extends beyond the hinged edge of the door to a point approximately half way across the width of the door. On the opposite side of the door from the storage cabinet and extending perpendicularly from the exterior wall were a clothes dryer and a clothes washer.[5] The distance between those two machines and *192the storage cabinet is only several inches more than the width of the ironing board.[6]

The Court also assessed the conclusions that the jury could properly have drawn from the testimony and photograph,

A fact finder could find that one attempting to open the basement door from the outside would not see the storage cabinet because of the curtain over the windows of the door. Furthermore, even if all of the locks on the door had been unlocked, a fact finder could conclude that the door would not open more than the four inches described in Det. Sturgeon’s report because the door would strike the cabinet and the cabinet would not move because it butts against the wall. A fact finder could also believe that, had the folded ironing board been leaning against the knob side of the door in its described, customary position, anyone attempting to enter the basement by opening the door would knock the folded ironing board to the floor.

Id.

Although Detective Sturgeon testified initially that he could not tell if the cabinet had been moved, when pressed, he •indicated that he did not find any evidence that it had been. Moreover, Detective Sturgeon also acknowledged under cross-examination that, while the ironing board was lying on the floor in front of the door, the ironing board cover did not appear to have been disturbed, i.e., there were no footprints on it. Sturgeon was not able to testify that the items on top of the washer and dryer, which were within a very few inches of the door frame and, thus, very close to the knob side of the door, had been disturbed. The only explanation for Detective Sturgeon’s conclusion that the basement door was the point of entry is his testimony that: “I could not find any other way into the house. The ... I said approximately four inches. It *193could have been a little more.” Aside from indicating that the opening looked large enough for some human beings to get through, the detective very pointedly noted that he could not and he did not venture to characterize just how much more than four inches the door could open.

Four inches is an extremely small space through which to pass. The petitioner at the time of the offense was 5'7" and weighed 135 lbs. It is inconceivable that a man of that size could pass through an opening of only four inches. There was no testimony in the record that the petitioner was unusually thin or adept at passing through small spaces. But even if there were, an opening of four inches, or in Detective Sturgeon’s words, “a little more,” will not accommodate a man’s head. As the petitioner’s counsel argued in closing argument, perhaps Gumby, given the flexibility of its body, including its head, could have passed through such a small opening, but no adult could.

The State apparently concedes that it would be impossible for an adult man to pass through a four inch opening. It relies, however, on Detective Sturgeon’s conclusion that the opening was wide enough for a man, not him, but presumably the petitioner, to pass through. The State is obviously of the view that Detective Sturgeon, an experienced police officer and lab technician, is more adept at determining whether an opening will accommodate a man than in characterizing, in inches, the width of a particular opening. But there is simply no basis for that conclusion. Presumably, the detective utilized his concededly vast police and lab technician experience when he estimated how far the door would open. Indeed, the fact that the metal cabinet extended to the middle of the door, at a height higher than the door knob, is corroborative of Detective Sturgeon’s estimate as to how far the door would open. Logic teaches that a door so obstructed could not open very far. Moreover, the detective’s testimony that the metal storage cabinet had not been moved is even more corroborative.

*194Detective Sturgeon said that, by characterizing the opening as approximately four inches, he meant to indicate that the door could open a little more than four inches. At no time, however, did he say how much more. And, at no time, did the State produce evidence to show just how much more the door would open, or just how wide the opening needed to be to allow access by an adult male. Six inches is a “little more” than four inches. Nevertheless, it seems just as impossible that an adult male, 5'7" tall and 135 lbs, could pass through an opening that size. Again, the head cannot contract, it is not flexible enough to make adjustments necessary to accommodate a small space.

Without a predicate more substantial than, “it opened wide enough for a man to pass through,” there simply was no basis for any rational trier of fact to find that the opening was sufficiently wide to allow the petitioner to pass through. The jury could only have adopted the State’s theory that the petitioner entered the house through the basement door by crediting Detective Sturgeon’s conclusion that the door opened wide enough to admit an adult man. That, in turn, required the jury to reject both Detective Sturgeon’s initial conclusion and the objectively verifiable evidence bearing on the issue, upon which, by the way, Detective Sturgeon relied for both opinions. Permitting a jury to make a factual finding on the basis of conclusions for which the record offers no support cannot be justified or countenanced.

The state’s point of entry evidence was insufficient for another reason. The area immediately in front of the basement door showed no signs of entry. Detective Sturgeon testified that there were no footprints on the ironing board and the items on the washer/dryer “didn’t look disturbed.” This is important because the ironing board took up all but a couple of inches of the walking surface immediately in front of the door, presenting no room for one entering through that door to proceed except by walking over the ironing board or climbing over the washer and dryer, thereby disturbing the material that was on top of the washer and dryer.

*195D.

Like the point of entry, the fingerprint evidence bears significantly on the question whether the State produced sufficient circumstantial evidence of the petitioner’s criminal agency to exclude a reasonable hypothesis that he was not the actual murderer. That the State’s case against the petitioner was purely circumstantial cannot be doubted. There was no direct evidence of the petitioner’s involvement in the murder, only inferences to be drawn from his fingerprints being on the broken glass from the basement door and his possession of property taken during the daytime housebreaking and robbery. The petitioner denied that he committed the murder. To support that contention and his further contention that someone else did, the petitioner relied on the State’s inability to match his fingerprints with those latent non-elimination fingerprints, of comparison value, lifted from various places inside the house.

A number of latent prints was lifted from various locations in the house. With the exception of the fingerprints lifted from the broken glass from the basement door, none of them could be matched with the petitioner’s prints. As to most of them, and, in particular, the palm print lifted from the refrigerator, the fingerprint lifted from kitchen door frame, and the fingerprints and partial palm print lifted from the lawn chair, Mr. Simms, formerly the supervisor of the latent print section of Baltimore County Crime Lab and the fingerprint expert, testified that this meant that it could not definitively be said either that they were the petitioner’s or that they were not. There simply were not enough points of comparison to permit a positive identification with known prints with which they were compared, he said. In other words, failure to obtain a match did not eliminate either petitioner or any other person who did not belong in the house, including those suspects with whose prints the latent prints were compared, as the source of the prints.

One fingerprint, that lifted from a page in the victim’s notebook, found in the victim’s handbag, was definitely deter*196mined not to have been made by the petitioner or by any of the victim’s family. Mr. Simms so testified. Indeed, he indicated that given the very different patterns of the two prints, only a cursory examination of that latent print and the petitioner’s-fingerprints was sufficient to exclude the petitioner as its source.

Notwithstanding the State’s theory, apparently adopted by the jury, that the fingerprint on the notebook page was most probably that of the person whose name appeared on that page and, consequently, had no relevance to the murder, the mere presence of that fingerprint and its lack of connection with petitioner, as well as the presence of other non-elimination, comparison value prints also found inside the house, support the petitioner’s argument that he did not commit the murder, i. e., that he was not a principal in the first degree.7 That evidence, taken together, also supports the hypothesis that someone other than the petitioner was in the house and that that someone committed the murder. In that regard the fingerprint on the notebook page is particularly important. From it could be inferred that the murderer left his or her fingerprint when, in the course of looking for money, he or she ransacked the victim’s handbag and its contents. Notwithstanding, and perhaps because of its inconclusiveness, the other fingerprint evidence is also important. Because the source of those prints could not be definitively established, they cannot be the basis for the jury finding that the petitioner was inside the house. Therefore, unless there is evidence that otherwise places the petitioner inside the house, this evidence is an insufficient predicate from which to infer that the petitioner committed the murder. In other words, inconclusive fingerprint evidence does not become sufficient simply *197because the defendant is placed in the area of the crime at or about the time it was committed. Thus, viewed by itself, the fingerprint evidence is, at best, consistent with the petitioner being, as this Court theorized in Colvin-el II, 314 Md. at 16, 548 A.2d at 513, an aider and abettor of the crimes of daytime housebreaking and robbery.

Because the fingerprint and other evidence developed inside the house do not link the petitioner to the murder, his death sentence can be sustained only if the evidence that does link him to the crime is sufficient to place him inside the house. While in the context of the guilt-innocence phase of a trial, it may be, ordinarily, appropriate to be less concerned with the petitioner’s actual entry into the house, it being unnecessary in that proceeding to prove that he actually killed the victim, that is not true in the context of this capital sentencing proceeding. The recognition and proof that “someone entered the house, murdered [the victim], and stole jewelry and other property,” Colvin-el II, 314 Md. at 15-16, 548 A.2d at 513, does not establish, for sentencing purposes, who the first degree principal was; thus, it does not help the State. The critical issue that leaves unanswered is who that someone was that murdered the victim. Consequently, unless the State’s evidence permitted a rational jury to find that the petitioner actually entered the house through the basement door, that being its only theory of entry, the issue of the petitioner’s criminal agency as a first degree principal should not have been submitted to the jury. The jury is required to resolve issues presented to it on the basis of evidence, not speculation.

The majority does not address the petitioner’s point of entry argument in the context of the petitioner’s challenge to the sufficiency of the evidence; rather, it touches on the issue only in connection with the petitioner’s claim that the State engaged in improper jury argument. But that issue is extremely critical to the propriety of the death sentence imposed in this case.

As the petitioner argued in closing argument, unless, given the State’s theory, he can be placed in the house through the *198approximately four inch opening in the basement door, there simply is no evidence that he committed the murder. The State’s only theory was that the petitioner, acting alone, entered the house through the basement door, and committed the murder when he was surprised by the victim. That theory works only if the petitioner is placed inside the house, in the manner alleged by the State. As I have demonstrated, the testimony of Detective Sturgeon, which the State offered in support of its theory, was wholly insufficient in that regard. Accordingly, it is appropriate to repeat that, in the context of proving first degree principalship, it is not enough to surmise, as the Court did in Colvin-el II, that someone entered the house and killed the victim. The critical inquiry is who that someone was. Surmise simply is not acceptable as proof.

The inferences to be drawn from the circumstantial evidence connecting the petitioner to the crimes may suffice to sustain the petitioner’s guilt of first degree murder. Given the fingerprint evidence, they clearly do not suffice to prove the petitioner’s first degree principalship. Indeed, on that issue, the best that can be said is that the case is exceedingly weak. Moreover, the evidence as to the point of entry, indicating as it does that the point the State identifies could only be a point of attempted entry, further exposes the weakness of the State’s circumstantial case against the petitioner as the actual perpetrator of the murder. It becomes weaker still when the evidence of other suspects, combined with the neighbors’ testimony concerning the presence in the area, at about the time the crimes occurred, of other persons who could possibly have committed the offenses, are considered.

Merely because the petitioner’s first degree murder conviction has twice been affirmed does not mean the jury finding that he was a principal in the first degree must be upheld. The proof necessary to establish these two propositions may be, and, in this case, is, quite different. To sustain the former, proof that the petitioner aided and abetted the daytime housebreaking and the robbery is enough; the State need not prove, in other words, that the petitioner was a principal in *199the first degree. See Colvin-el II, 314 Md. at 16, 548 A.2d at 513. On the other hand, the finding that the petitioner was the principal in the first degree may only be upheld on evidence that the petitioner committed the murder by his own hand. When the issue is the petitioner’s first degree principalship, and there are indications that the petitioner may not have acted alone, it is not enough merely to prove the petitioner’s presence at the time of the murder or even his possession of the fruits of the crime; it must also be shown that the petitioner actually committed the murder. Of necessity, therefore, this requires the State to establish that the petitioner was in the house, rather than at the basement door, when the murder occurred. The State failed utterly in its proof in this regard. In the first place, it did not prove that it was possible for the petitioner to have gained entry at the alleged point of entry. Second, while possession of the fruits of a recent daytime housebreaking and robbery will support an inference that the possessor is the thief, that is true, ordinarily, only when there is no evidence “undermining the inference from the evidence that the defendant was guilty.” Hebron, 331 Md. at 231, 627 A.2d at 1035. In the case sub judice, the State’s failure to prove entry, the fingerprint found not to be that of the petitioner, and the inconclusive fingerprint evidence constitute evidence undermining the inference that the petitioner was the principal in the first degree. Moreover, given that evidence, there is “no basis upon which a rational finder of fact could [find that the petitioner was the principal in the first degree] without speculating as to which of the two versions is the correct version.” Id. at 234, 627 A.2d at 1036. Thus, while, as we have already held, placing the petitioner at the basement door when the murder, daytime housebreaking, and robbery occurred and, eight days thereafter, in possession of some of the fruits of those crimes, may be enough to find the petitioner guilty of first degree murder, it falls well short of being sufficient to establish that he committed the murder.

To reiterate, tending to prove that the petitioner was a principal in the first degree in the victim’s murder are the petitioner’s fingerprints found on broken glass taken from the *200basement door and the petitioner’s pawning, eight days after the murder, two items taken in the daytime housebreaking. On the other hand, the facts that the basement door would only open “approximately” four inches, that the petitioner’s fingerprints were not matched with any of the latent prints lifted from the interior of the house, that the fingerprint on a page of the victim’s notebook, found in the victim’s handbag, was definitely not the petitioner’s and that there were other persons in the area at about the time of the crimes who could have committed them all tend to disprove that proposition. What we have, therefore, is a weak circumstantial case, made weaker by evidence, tending to negate the petitioner’s first degree principalship, that the petitioner could not gain entry as the State alleged. I agree with Judge Eldridge, speaking in dissent in Wiggins v. State, 324 Md. at 587, 597 A.2d at 1376, while, viewed in isolation, that evidence may not support a reasonable hypothesis that another person was present when the crime was committed; however, “[w]hen this evidence is added to an already weak circumstantial case, ... the combination leads to the conclusion that the evidence at the sentencing hearing was not sufficient to establish, beyond a reasonable doubt, that [the petitioner] was the principal in the first degree.”

II.

For the reasons I stated in my dissents in Bruce v. State, 328 Md. 594, 632, 616 A.2d 392, 411 (1992), cert. denied, - U.S. -, 113 S.Ct. 2936, 124 L.Ed.2d 686 (1993); Oken v. State, 327 Md. 628, 683-89, 612 A.2d 258, 285-88 (1992), and Booth v. State, 327 Md. 142, 203-17, 608 A.2d 162,192-99, cert. denied, — U.S.-, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992) I also dissent from Part XI of the majority opinion. It is a perfectly acceptable outcome for the jury not to agree, see Maryland Code (1957,1992 Repl.Vol.) Art. 27, § 413(k)(2), and I continue to believe that the jury should be told and, thus, know, that.

ELDRIDGE J. concurs in all but part II. of this dissenting opinion.

. The only exception to this Rule, not applicable here, is when the defendant employs another to commit murder. See Maryland Code (1957, 1992 Repl.Vol.) Art. 27 § 413(d)(7) and § 413(e)(1).

. In connection with the petitioner’s improper closing argument contentions, the majority alludes to how it treated the point of entry issue in State v. Colvin, 314 Md. 1, 14, 548 A.2d 506, 512 (1988). In that case, the argument was divorced from the issue of the petitioner’s guilt of first degree murder, the Court noting that whether or not the petitioner entered the house through the basement door, someone entered the house and murdered Mrs. Buchman. The Court concluded that, at the very least, the petitioner was present as an aider and abettor of daytime housebreaking and robbery. 314 Md. at 15-16, 548 A.2d at 513. From the Court’s recitation of the particulars in which the petitioner alleged that his counsel was ineffective, 314 Md. at 13-14, 548 A.2d at 512, it may be assumed that the petitioner did not raise, in the post conviction proceedings, the point of entry argument as it related to sentencing. Be that as it may, at the resentencing in this case, the petitioner did vigorously challenge the State’s theory that he entered the premises through the basement door. And, since that was the State’s only theory of how entry was gained, it was critical that the evidence presented at the resentencing hearing support it. As I will demonstrate, it does not.

. Despite Detective Sturgeon’s report containing the comment that “the door could be opened, but only approx, four inches,” the petitioner’s counsel conducted no cross-examination on whether it was possible for the petitioner to pass through an opening approximately four inches. This was one of the bases for the petitioner’s allegation, in the post conviction proceedings, that he received ineffective assistance of counsel.

. Not only does that picture reveal a metal cabinet, but that it was piled high with other items.

. The washer and dryer extended to within a few inches of the door frame and, thus, were very close to the door on the knob side. That *192constricted the space into which one entering that door would have to pass.

. There was testimony that an ironing board was usually stored leaning against the basement door. In the photograph the ironing board was lying on the floor in front of the door.

. The majority takes the position that the jury could have found that the murderer would not have taken the time to go through the victim’s notebook after having ransacked the handbag and found her money. Curiously, however, it was the police who saw fit to take latent prints from that notebook. This is consistent, of course, with its theory that the murderer robbed the victim and that in the process of looking for her money, handled and looked through the notebook, possibly leaving his or her fingerprints on one of its pages.