
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                                         -3-            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-
