

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 &amp;  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.

                             -4-

          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,                                                          

                             -5-

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.                               

                             -7-
