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14-P-1257                                               Appeals Court

                 COMMONWEALTH   vs.   ERIC S. FRENCH.


                            No. 14-P-1257.

            Hampden.      May 13, 2015. - October 9, 2015.

               Present:   Trainor, Agnes, & Blake, JJ.


Breaking and Entering. Larceny. Practice, Criminal, Required
     finding. Evidence, Fingerprints, Identification.
     Identification.



     Complaint received and sworn to in the Springfield Division
of the District Court Department on September 27, 2013.

    The case was heard by Christopher P. LoConto, J.


     Joseph Visone for the defendant.
     Alyson Yorlano, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.     Following a jury-waived trial, a judge of the

District Court found the defendant guilty of breaking and

entering in the daytime with the intent to commit a felony, and

larceny of property over $250.    On appeal, the defendant argues

that absent additional evidence linking him to the crimes, a
                                                                     2


latent fingerprint was legally insufficient to support the

convictions.   Because we conclude that the Commonwealth did, in

fact, present further circumstantial evidence, we affirm the

defendant's convictions.

    Background.    The undisputed facts are as follows.     On

August 30, 2013, Albano's Market in the city of Springfield

closed at 6:00 P.M.    When the proprietor left, the door was

locked and all windows were in place.    She returned early the

following morning after she was informed that there was an open

window at the store.   Once at the store, both she and a police

officer noted that a plexiglass windowpane had been removed from

its frame and left leaning against the front door of the store.

The empty window frame was about two and one-half feet wide,

over six feet from the ground at its highest point, and located

to the right of the store's front door.    Beneath the window

frame was a "little knee wall."   The police officer also

observed a milk crate in front of the same door, which he

surmised the thief had used to gain entry into the store.        Items

inside the store had been knocked to the floor from their

shelves.   The proprietor reported that cigarettes were missing,

the value of which was about $400 to $500, in addition to an

undetermined amount of change.

    The subsequent police investigation yielded latent

fingerprints "around the sides" of the upper half of the
                                                                   3


plexiglass windowpane, "like if you lifted it and put it to the

side."1   Springfield police Detective Juan Estrada analyzed the

fingerprints, and testified that one was a match with a known

sample provided by the defendant.2   Estrada further testified

that the age of a fingerprint cannot be determined when a crime

scene is processed, but that fingerprints can deteriorate when

exposed to weather.   At trial, the defendant did not contest the

manner by which the fingerprint evidence was secured and

analyzed.   Nor did he contest that the fingerprint was his.

     Discussion.   In reviewing the denial of a motion for a

required finding of not guilty, we view the evidence in the

light most favorable to the Commonwealth.    Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).    The Commonwealth may

submit a case wholly on circumstantial evidence; inferences

drawn from that evidence "need only be reasonable and possible,”

not "necessary or inescapable."   Commonwealth v. Woods, 466

Mass. 707, 713 (2014), quoting from Commonwealth v. Merola, 405

     1
       Although the officer equivocated somewhat on cross-
examination regarding the orientation of the plexiglass in the
frame, he affirmed on redirect that the fingerprints were
recovered "up high" on the window, as the plexiglass was
oriented in the frame before it was removed.
     2
       Although there was some inconsistent testimony as to how
many fingerprints were lifted from the windowpane by the police,
Detective Estrada testified that he matched one print lifted
from the windowpane with "the #9 ring finger of the defendant"
by analyzing the defendant's previously obtained "standard
fingerprint card." We refer to one fingerprint in this
decision, but nothing turns on the exact number of prints.
                                                                   4


Mass. 529, 533 (1989).   "[T]he presence of a fingerprint at the

scene of the crime is not by itself sufficient basis for

submitting a case to a jury."   Commonwealth v. Fazzino, 27 Mass.

App. Ct. 485, 487 (1989).   "The prosecution must couple the

fingerprints with evidence which reasonably excludes the

hypothesis that the fingerprints were impressed at a time other

than when the crime was being committed."    Ibid.   See

Commonwealth v. Baptista, 32 Mass. App. Ct. 910, 911 (1992).

     Such a hypothesis has reasonably been excluded in this

case.   In addition to the fingerprint, the circumstantial

evidence depicts a crime scene that essentially speaks to how

the burglar gained access to the market:    by entry through a

window, from which a pane had been removed, with a milk crate

that could have been used to bolster the burglar into the market

from the ground.   As in Commonwealth v. Ye, 52 Mass. App. Ct.

390, 392-393 (2001), here the defendant was unknown to the

victim of the crime and had no apparent connection to the store.

The location of the fingerprint on the windowpane, the point of

entry for the break-in, provides further circumstantial

evidence.   The print was located nearly six feet from the

ground, on the perimeter of the pane, where someone would hold

it in order to lift it out of its frame.    Apart from removing

the windowpane to gain entry into the market, there is no other

reasonable, innocent explanation for the presence of the
                                                                    5


defendant's fingerprint on that part of the window.3   Taking all

of the circumstantial evidence together, a fact finder

reasonably could have inferred that the defendant perpetrated

the crime.   See Commonwealth v. LeClaire, 28 Mass. App. Ct. 932,

934 (1990); Commonwealth v. Baptista, supra at 911-912.4

                                   Judgments affirmed.




     3
       The dissent rests on the assumption that it is equally
plausible that, based on the evidence presented, the real
culprit left no fingerprints behind while the defendant
innocently touched the plexiglass and impressed his fingerprint
while the pane was resting against the door of the market
overnight, or that he somehow climbed up and impressed it on the
pane at an earlier time. While these scenarios are within the
realm of possibility, "[t]he Commonwealth need not 'exclude
every reasonable hypothesis of innocence to prove its case, if
the record viewed in its entirety supports 'a conclusion of
guilt beyond a reasonable doubt.'" Commonwealth v. Platt, 440
Mass. 396, 401 (2003), quoting from Commonwealth v. Merola, 405
Mass. 529, 533-534 (1989).
     4
       The rationale of Baptista, supra, is not a bar to the
result reached in this case. In Baptista, this court held that
one way to infer that the fingerprints were impressed at the
time the crime was committed was the placement of the
defendant's prints in an area that was not accessible to the
public. Id. at 911-912. This rationale did not exclude the use
of other, equally valid, methods of proof in cases such as the
one here.

     Nor are we bound by the holding in Commonwealth v. Morris,
422 Mass. 254, 257 (1996). There, the defendant's fingerprint
was found on a mask left near the crime scene, without
sufficient further proof to tie him to the crime. Here, the
defendant's fingerprint was found in a distinct location on the
plexiglass. If the plexiglass remained intact in the window, it
would not likely be touched by a member of the public, thereby
further linking the defendant to the removal of the windowpane
that served as the point of entry for the break-in.
    AGNES, J. (dissenting).    The majority opinion reasons that

the Commonwealth's case consisted of not only latent fingerprint

evidence, but also additional corroborative evidence that when

taken together permitted the judge to conclude beyond a

reasonable doubt that the defendant's fingerprint was impressed

at the time the crime was committed.   See Commonwealth v.

Morris, 422 Mass. 254, 257 (1996); Commonwealth v. Baptista, 32

Mass. App. Ct. 910, 911 (1992).   I read the record differently.

    There is no evidence in this case linking the defendant to

the break-in of the market other than a latent fingerprint found

on a plexiglass windowpane.    The evidence indicates that the

latent fingerprint was not in a location on the windowpane that

was inaccessible to the public prior to the break-in when the

windowpane was in its frame.   The police witnesses did not

testify that the fingerprint was fresh, and they could not

estimate how long the fingerprint had been on the windowpane.

Furthermore, the evidence was that when the police arrived at

the scene, the plexiglass windowpane was out of its frame,

upright on the sidewalk and against the market's front door.

Furthermore, the plexiglass windowpane was out of its frame and

unattended for up to thirteen hours after the break-in occurred.

    The only reported Massachusetts appellate decision in which

latent fingerprint evidence alone was deemed sufficient to

warrant a verdict of guilty beyond a reasonable doubt is
                                                                    2


Commonwealth v. Baptista, supra.    The holding in Baptista,

followed in Commonwealth v. Morris, supra, is that in a case

such as this, fingerprint evidence alone is sufficient to

support a finding of guilt beyond a reasonable doubt only if the

fingerprint was found in an area generally inaccessible to the

public.   This is the national rule as well.1   Because this case

is substantially weaker than Baptista, and every other reported

appellate decision in Massachusetts involving fingerprint

evidence, I do not believe that the evidence was sufficient to

withstand the defendant's motion for a directed finding.2

Accordingly, I respectfully dissent.

     1.   Factual background.   In order to understand why this

case is different from and weaker than any other Massachusetts

case in which fingerprint evidence has been the sole or

     1
       "[W]hen fingerprints constitute the only identification
evidence, most jurisdictions require the prosecution to
establish beyond a reasonable doubt that the fingerprints in
fact were placed at the scene during the commission of the
crime." Commonwealth v. LaCorte, 373 Mass. 700, 703 (1977).
Cases from other jurisdictions are collected in Monroe v. State,
652 A.2d 560, 564-565 (Del. 1995), and State v. Watson, 224 N.J.
Super. 354, 358-360 (App. Div. 1988).
     2
       In Baptista, we observed that "one of the defendant's
fingerprints was found inside a closed, locked Pepsi vending
machine. In order to reach the coin box, the perpetrator had to
cut off a lock on the machine. Because the interior of that
machine was not available to members of the public, the jury
could reasonably infer that the defendant's fingerprints were
left on the coin box at the time of the crime." Commonwealth v.
Baptista, 32 Mass. App. Ct. at 911-912. Accord Taylor v.
Stainer, 31 F.3d 907, 909-910 (9th Cir. 1994); State v. Lucca,
56 Wash. App. 597, 599-603 (1990).
                                                                      3


principal evidence against the defendant, it is necessary to set

forth the facts in somewhat greater detail.   From the evidence

presented at trial, the judge could have found the following

facts.   The owner of the market returned to the store during the

early morning hours of August 31, 2013, as a result of a

telephone call informing her that there was an empty window

frame on the street side of the store.3   When she arrived at the

scene, she observed that a plexiglass pane from the window

located on the right-hand side of the front door had been

removed and placed on the ground, leaning against the door.     The

window served as the entry point by which the perpetrator

entered the store and took change from the cash register and

cigarettes estimated to be worth approximately $400 to $500.

     Springfield police Officer Rooke arrived at the store at

7:20 A.M. the next morning and observed the empty window frame.

When the windowpane was intact inside its frame, the distance

from the sidewalk to the top of the window was over six feet,

four inches.   The windowpane that was removed was two and one-

half feet wide.   Inside the store, Officer Rooke went behind the

counter where the cash register was located, and observed

several items on the floor.   The police did not dust for

fingerprints anywhere inside the store.


     3
       There is no evidence as to the precise time when the empty
window frame was discovered.
                                                                     4


     Detective Jenkins also arrived at the scene sometime after

7:00 A.M. that morning and was informed that the windowpane had

not been moved and had been leaning against the door when the

police first arrived.    Wearing gloves, Jenkins moved the

windowpane so he could dust it for fingerprints.    He assumed

that the portion of the windowpane with a crack in it (depicted

in a trial exhibit as the bottom area of the pane) was the

bottom when it was in the window frame, but he was "not sure."

Jenkins lifted latent fingerprints4 from a location on the

windowpane that would have been between five feet, eight inches,

and six feet from the ground if the pane were in the window

frame.    More particularly, he testified on direct examination as

follows:

     Q:    "Okay. And when that fingerprint powder -- when you
            applied it to the window, did you yield any results?"
     A:    "Yes."
     Q:    "And from where did you recover those results?"
     A:    "From the window -- from the plexiglass."
     Q:    "And where precisely in the plexiglass was it?"
     A:    "Around the sides -- like if you lifted it and put it
            to the side like that."


     4
       "Fingerprints are left by the deposit of oil on contact
between a surface and the friction ridges of a finger. Latent
fingerprints are fingerprint impressions that are not visible to
the naked eye without chemical enhancement. These latent print
impressions are almost always partial and may be distorted due
to less than full, static contact with the object and to debris
covering or altering the latent impression." Commonwealth v.
Patterson, 445 Mass. 626, 629 (2005).
                                                                      5


     Q:   "Is that the upper half or the lower half of the
           plexiglass?"
     A:   "That was the upper half."

     Q:   "Alright. Is that visible in the picture you have
           before you?"
     A:   "No."
     It was not possible to determine the age of the

fingerprints.     Detective Jenkins made photographic slides of the

latent prints, which were submitted to the crime laboratory for

identification.    Jenkins did not mark the area of the windowpane

where he lifted the latent prints, nor did he take a photograph

of the location.

     Detective Juan Estrada, a member of the Springfield police

crime scene identification division, testified without objection

that one of the latent prints belonged to the defendant.5    He



     5
       This case was tried after the decisions in Commonwealth v.
Patterson, supra, and Commonwealth v. Gambora, 457 Mass. 715
(2010), which addressed the reliability of latent fingerprint
identification methods. In Gambora, 457 Mass. at 727-728, the
court indicated that expert witness testimony based on the "ACE-
V methodology" of latent fingerprint identification was
admissible, but expressed reservations about whether a
fingerprint examiner should be permitted to testify to the
"individualization" of a latent fingerprint, i.e., that based on
a comparison between a latent fingerprint from a crime scene and
a known fingerprint, the latent fingerprint came from the same
source as the known fingerprint to the exclusion of all other
persons. See Commonwealth v. Wadlington, 467 Mass. 192, 203-206
(2014). In Commonwealth v. Pytou Heang, 458 Mass. 827, 846-849
(2011), the Supreme Judicial Court established guidelines for
forensic ballistics testimony that prohibit experts from
offering an opinion about a match between a projectile or
cartridge casing and a specific firearm to a degree of absolute
                                                                   6


testified that he could not determine when the fingerprint had

been impressed on the windowpane.   The defendant was unknown to

the market's owner.   No witnesses saw the defendant or a person

matching his description coming or going from the store at the

approximate time the incident occurred, and none of the stolen

merchandise was ever recovered or tied to him.

    2.   Absence of corroborative evidence.    The majority

maintain that this is not a case involving fingerprint evidence

alone, but rather one in which the fingerprint evidence was

corroborated by other circumstantial evidence linking the

defendant to the crime.   Ante at __.   However, the majority


certainty. See note to Mass. G. Evid. § 702, at 234 (2015)
(certitude of expert witness opinion).

     Because the defendant did not raise any issue with respect
to the reliability of the methods used by Detective Estrada in
comparing the latent fingerprints removed from the windowpane to
the inked prints associated with the defendant and Estrada's
testimony that there was a match, there is no need to address
the issue. In light of the decisions in Patterson, supra;
Gambora, supra; Pytou Heang, supra, and other similar cases, it
is important for prosecutors and defense counsel to appreciate
the distinction between the admissibility of forensic expert
witness testimony that is empirically based, but ultimately
subjective in nature, and the expression by such experts of
certainty or near certainty about their opinions. See
Commonwealth v. Greineder, 464 Mass. 580, 596 (2013), quoting
from National Research Council, Strengthening Forensic Science
in the United States: A Path Forward, 7 (2009) ("[N]o forensic
method has been rigorously shown to have the capacity to
consistently, and with a high degree of certainty, demonstrate a
connection between evidence and a specific individual or
source"). See also Commonwealth v. Drayton, 473 Mass. ___
(2015) (expert witness testified without objection that latent
fingerprint was "individualized or identified" with the
defendant's print).
                                                                    7


refers only to the location of the fingerprint, the absence of

any connection between the defendant and the market, and the

height of the windowpane when it was inside its frame.   Ante at

__.   This is not the type of corroborative evidence described in

prior cases involving fingerprint evidence.6   In cases of this


      6
       See, e.g., Commonwealth v. Fazzino, 27 Mass. App. Ct. 485,
487 (1989) ("in addition to the fingerprints, there was evidence
of [the defendant's] knowledge of the premises, knowledge where
money was kept, special knowledge about a point of entry that
was not apparent, skill with a blowtorch, and that the intruder
harbored ill feelings against [the victim]"); Commonwealth v.
LeClaire, 28 Mass. App. Ct. 932, 933 (1990) (in addition to
defendant's thumbprint found around jagged hole in window
leading into building, there were three other smudged prints on
interior of same window and near thumbprint; expert testified
that all prints had been impressed at same time and during
commission of crime; and defendant was employed by business that
occupied space inside that window, but had no authority or
permission to be in that room); Commonwealth v. Hall, 32 Mass.
App. Ct. 951, 952 (1992) (defendant's fingerprint was on
doorknob of lavatory into which robber forced witness; court
described additional circumstantial evidence as follows: "[1]
because the employee worked a twelve-hour shift that day and had
been employed by the store since October, 1988, she would likely
have recognized Hall if he was also a store employee, delivery
person, or regular customer; [2] because the robber said he left
the store to use a bathroom, he was unfamiliar with the fact
that the establishment did have a bathroom; [3] because the
robber apparently did not know that the store had a bathroom, it
is reasonable to infer that he had no prior opportunity to place
his fingerprint on the door handle to the bathroom which was
only available to employees and delivery people; and [4] because
the fingerprint lifted from the doorknob was not smudged, 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"); Commonwealth v. Keaton, 36 Mass.
App. Ct. 81, 85 (1994) (victim's testimony established that
defendant's fingerprint on glass inside apartment was impressed
during commission of crime); Commonwealth v. Ye, 52 Mass. App.
Ct. 390, 392-393 (2001) (in addition to "very fresh" prints
belonging to defendant found inside of door of "rarely used"
                                                                     8


nature, in which the location of the fingerprint is the decisive

factor, the object on which the fingerprint was found was

inaccessible to anyone other than the perpetrator.   That is not

the case here because the windowpane was exposed to anyone

passing by the market.7

     3.   Location of the latent fingerprint.   The Commonwealth's

theory at trial was that the fingerprint evidence was sufficient

to permit an inference that the defendant was the perpetrator



cabinet in "isolated" area of basement of house defendant had
never visited and from which $15,000 in cash, of which one-third
was in form of new $100 bills, was stolen from safe, there were
cellular telephone calls on day of burglary between defendant
and another suspect with link to house, and financial
transactions by defendant around time of robbery involving new
$100 bills); Commonwealth v. Newell, 55 Mass. App. Ct. 119, 126-
127 (2002) (fingerprint evidence combined with eyewitness
identification evidence); Commonwealth v. Palmer, 59 Mass. App.
Ct. 415, 419-421 (2003) (defendant's fingerprints were found on
interior and exterior of truck used to escape scene of armed
robbery; "[o]ne lift showed his fingers pointing downwards on
the passenger door at the base of the passenger window frame.
Another showed a fingerprint on the latch located in the
interior of the truck by which the window opening into the bed
of the truck could be made secure"; in addition, there was
physical evidence inside the truck and records of telephone
calls to defendant's girlfriend that linked defendant to crime).
Contrast Commonwealth v. Estremera, 37 Mass. App. Ct. 923, 923-
924 (1994) ("latent fingerprints on and above the outside door
handle on the driver's side [of the vehicle], on the outside and
inside of the window on the driver's side, and on the inside of
the window on the passenger side" did not standing alone
demonstrate that defendant possessed or was ever inside
vehicle).
     7
       Implicit in the reasoning of the majority is that whoever
removed the windowpane from its frame and thereby gained entry
to the market left a fingerprint on the plexiglass. There is no
evidence to support such an assumption.
                                                                      9


for three reasons:   it was recovered from a location that was

the point of entry into the store, it was found in a location

that was so high up on the windowpane that it could not have

been the result of an inadvertent touching by a passerby, and it

was in the location that would have been touched by someone who

lifted the windowpane from its frame.   In particular, the

Commonwealth points to testimony by Detective Jenkins that he

found the latent fingerprint on the "sides [of the windowpane] -

- like if you lifted it and put it to the side like that."8

     This is the reasoning that underlies the result in

Commonwealth v. Baptista, 32 Mass. App. Ct. at 911-912.      There,

the defendant was convicted of breaking and entering a building

on the basis of fingerprint evidence alone.   The defendant's

fingerprints were described as "fresh," and were found in three

different locations, namely, on a tool box inside the business,

on the door to a cabinet from which a typewriter had been

removed, and from the coin box of a soft drink vending machine

     8
       In determining that this evidence was sufficient to
withstand the defendant's motion for a directed finding of not
guilty at the close of the Commonwealth's case, the judge
described the testimony by Detective Jenkins as to the location
of the latent print as involving a "demonstration." Judges have
discretion to permit a court room demonstration as long as it
"sufficiently resembles the actual event so as to be fair and
informative." Commonwealth v. Perryman, 55 Mass. App. Ct. 187,
193–194 (2002), quoting from Terrio v. McDonough, 16 Mass. App.
Ct. 163, 173 (1983). The problem with what occurred in this
case is that neither Jenkins nor the judge indicated with
precision where on the windowpane the latent fingerprint was
found. The location in question was not marked or photographed.
                                                                      10


that had been broken open.     Id. at 911.   The result we reached

in Baptista did not turn on the number of locations where the

defendant's fingerprints were located.       Ibid.   Instead, we

concluded that "[b]ecause the interior of [the vending] machine

was not available to members of the public, the jury could

reasonably infer that the defendant's fingerprints were left on

the coin box at the time of the crime."      Id. at 911-912.9

    This reasoning loses its force in the present case for two

reasons.    First, we do not know the precise location of the

latent fingerprint identified as the defendant's on the

windowpane because that was never marked or photographed.          We do

not know if the location of the fingerprint described by

Detective Jenkins was in a location that was inaccessible to a

passerby.   We do know, however, that the plexiglass windowpane

was not so high that a passerby could not stand on the ledge and

touch the top of the window.     Moreover, we do not have any

evidence that the latent fingerprint was "fresh."        Further, and

more significantly, the windowpane that was removed from the

window frame through which the perpetrator gained entry to the

store became accessible to any passerby (in addition to the


    9
       Accord State v. Thorpe, 188 Conn. 645, 648-650 (1982);
Jones v. State, 156 Ga. App. 823, 824 (1980); State v. Watson,
224 N.J. Super. at 361. See United States v. Talbert, 710 F.2d
528, 531 (9th Cir. 1983); Hawkins v. United States, 329 A.2d
781, 782 (D.C. 1974); State v. Mitchell, 332 S.C. 619, 623
(1998).
                                                                     11


perpetrator) after 6:00 P.M. on August 30.     In fact, it is

unclear whether the police took control of the crime scene until

the following morning.   According to the evidence, the owner of

the store returned there "during the night."    No specific time

is given, and there is no indication whether she or anyone else

remained at the store until the police arrived.     Officer Rooke,

who worked the day shift, testified that he responded to the

scene immediately after the 7:00 A.M. roll call on August 31.

Detective Jenkins arrived at the scene after 7:00 A.M. on August

31.   Thus, even if we assume that Jenkins discovered the latent

fingerprint in a location on the windowpane that would not be

accessible to a passerby when it was in its proper place inside

the frame, the evidence that the windowpane was out of its frame

and resting against the front door of the store for hours before

the scene was under the control of the police means that "the

hypothesis that the fingerprints were impressed at a time other

than when the crime was being committed" cannot reasonably be

excluded.   Commonwealth v. Fazzino, 27 Mass. App. Ct. at 487.

Cf. Commonwealth v. Salemme, 395 Mass. 594, 599-600 & n.6

(1985).10


      10
       In Monroe v. State, 652 A.2d at 565-566, the Delaware
Supreme Court concluded that the presence of eight latent
fingerprints belonging to the defendant on a large piece of
glass at the point of entry to a burglarized commercial
building, coupled with testimony by police officers that the
prints were in locations consistent with someone removing shards
                                                                      12


    The present case is also weaker than Commonwealth v.

Morris, 422 Mass. at 257-260, where the Supreme Judicial Court

concluded that the circumstantial evidence pointing to the

defendant as one of a group of armed and masked intruders who

entered an apartment and shot the victim to death was not

sufficient to support the jury's verdict that the defendant was

guilty of murder in the first degree and armed assault in a

dwelling.   In Morris, there was evidence that the intruders left

one of the masks outside the apartment.     Id. at 256.   An expert

witness testified that there was a thumbprint belonging to the

defendant on that mask.   Ibid.    There also was additional

evidence (1) that a vehicle involved in the crime resembled one

owned by the defendant's mother, (2) linking the defendant and

his residence to two other men who were found in a vehicle in

possession of firearms and other items used in the commission of

the crime, and (3) that the intruder wearing the mask resembled

the defendant.   Id. at 258-259.    Notwithstanding the fingerprint

evidence and other circumstantial evidence, the court concluded

that the Commonwealth's evidence demonstrated that it was

possible that the defendant was one of the intruders, but "does

not, however, warrant such a conclusion beyond a reasonable


of glass from the door in order to gain entry and less likely to
be touched by someone simply using the door handle to open the
door, was not sufficient to support a finding that the
fingerprints were impressed at the time the crime was committed.
See Townsley v. United States, 236 A.2d 63, 65 (D.C. 1967).
                                                                    13


doubt."   Id. at 259.   See Commonwealth v. Fancy, 349 Mass. 196,

200 (1965), quoting from Commonwealth v. O'Brien, 305 Mass. 393,

401 (1940) ("[I]f, upon all the evidence, the question of the

guilt of the defendant is left to conjecture or surmise and has

no solid foundation in established facts, a verdict of guilty

cannot stand").11   The evidence deemed insufficient in Morris is

even stronger than the evidence in this case.

     4.   Conclusion.   Massachusetts law, and the law in a

majority of jurisdictions, is that fingerprint evidence alone is

not sufficient to support a finding of guilt beyond a reasonable

doubt if the fingerprints are found in an area that is generally

accessible to the public.    In this case, the location where the

fingerprint was found was accessible to the public both before

and after the break-in, which precludes a jury from concluding

beyond a reasonable doubt that the defendant's fingerprint was

impressed at the time the crime was committed as required by

Commonwealth v. Morris, supra, and numerous other Massachusetts

decisions.   Accordingly, the defendant's motion for a directed

finding of not guilty should have been allowed.




     11
       Accord Borum v. United States, 380 F.2d 595, 596-597
(D.C. Cir. 1967).
