NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12012

               COMMONWEALTH   vs.   ERIC S. FRENCH.


                       February 14, 2017.


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


     Following a jury-waived trial in the District Court, a
judge found the defendant, Eric S. French, guilty of breaking
and entering in the daytime with the intent to commit a felony,
in violation of G. L. c. 266, § 18, and larceny of property over
$250, in violation of G. L. c. 266, § 30 (1). The defendant
appealed, arguing that the evidence was insufficient to support
the convictions.1 The Appeals Court, in a divided decision,
affirmed the judgments. See Commonwealth v. French, 88 Mass.
App. Ct. 477 (2015). The case is now before this court on
further appellate review. Because we conclude that the evidence
was not sufficient to find, beyond a reasonable doubt, that the
defendant committed the crimes charged, we reverse.

     Background. The convictions stem from a break-in and
robbery that occurred at a market in Springfield in August,
2013. At trial, one of the proprietors of the store testified
that she closed the store at 6 P.M. on August 30. She returned
to the store "during the night" after being notified of a break-
in. When she arrived she saw that "[s]omebody had broken in on
the side window and taken the panel out and climbed in." She
also testified that approximately $400 to $500 worth of
cigarettes had been stolen.

    1
       At the close of the Commonwealth's case, the defendant
filed a motion for a required finding of not guilty, which the
trial judge denied.
                                                                  2



     Several Springfield police officers also testified.
Officer Eugene Rooke responded to a call to go to the market on
the morning of August 31, and arrived there with his partner at
approximately 7:20 A.M. When they arrived, they spoke with two
men who lived next door to the store and who had alerted the
police that a front window to the store was "missing." Officer
Rooke saw that the plexiglass window pane from the window
located to the right of the front door had been removed and was
set against the door. Photographs entered as exhibits at trial
show the plexiglass leaning against the front door, next to the
window frame from which it had been removed.

     Officer Rooke estimated that when the plexiglass was
intact, inside the window frame, the top of it was more than six
feet, four inches from the ground. Additionally, he saw a milk
crate on the ground nearby that he thought the perpetrator may
have stood on to gain entry to the store (through the open
window). Photographs show the milk crate on the ground, next to
the plexiglass. Inside the store, Officer Rooke observed
numerous items that would normally be on shelves located on the
floor instead.

     Detective Gifford Jenkins also responded to the scene after
receiving a call to do so on the morning of August 31, at around
7 A.M. In the course of collecting evidence, Detective Jenkins
recovered a latent fingerprint from the plexiglass. He
testified that, on the basis of how he thought the plexiglass
would sit in the window frame, the fingerprint was recovered
from a portion of the plexiglass that was "up high." If the
plexiglass were sitting in the window frame as described by
Detective Jenkins, the location of the fingerprint would have
been, in his estimation, five feet, eight inches to six feet
from the ground. When asked on cross-examination if he could
identify which part of the plexiglass was the top half and which
was the bottom half, he indicated that the "bottom" of the
plexiglass, as he found it at the scene (that is, removed from
the frame and leaning against the store's front door), had a
crack. When asked whether he "kn[e]w . . . for certain" which
was the top of the plexiglass and which was the bottom, he
responded "I'm just saying. I'm not sure. I mean that's what
it looks like to me." He also testified that he took
photographs inside the market but did not further dust for
fingerprints.

     Finally, Detective Juan Estrada, who is trained in
fingerprint analysis, testified without objection that the
                                                                   3


latent fingerprint recovered from the plexiglass matched a known
sample from the defendant. He also testified that a fingerprint
cannot be dated and can remain on a surface for a long period of
time.2

     Discussion. Where, as here, a defendant's fingerprint at a
crime scene constitutes the only identification evidence, "the
prosecution must prove beyond a reasonable doubt that the
fingerprint was placed there during the crime." Commonwealth v.
Morris, 422 Mass. 254, 257 (1996), citing Commonwealth v.
LaCorte, 373 Mass. 700, 703 (1977). "The prosecution must
couple the fingerprint[] with evidence which reasonably excludes
the hypothesis that the fingerprint[] w[as] impressed at a time
other than when the crime was being committed." Commonwealth v.
Fazzino, 27 Mass. App. Ct. 485, 487 (1989). See Commonwealth v.
Baptista, 32 Mass. App. Ct. 910, 911 (1992). Even viewing the
evidence in the light most favorable to the Commonwealth, as we
must, see Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), the Commonwealth has not done that here.

     In prior cases where a fingerprint was the only
identification evidence, and thus a decisive factor in
convicting the defendant, other evidence corroborated finding
that the fingerprint was placed during the crime. In Baptista,
32 Mass. App. Ct. at 911, for example, one of the defendant's
fingerprints "was found inside a closed, locked Pepsi vending
machine," the interior of which "was not available to members of
the public." On this basis, the jury "could reasonably infer
that the defendant's fingerprints were left . . . at the time of
the crime." Id. at 911-912. See, e.g., Commonwealth v. Wei Ye,
52 Mass. App. Ct. 390, 392-393 (2001) (fingerprint found on door
of cabinet rarely used, located in basement, and opened by
robbers coupled with other evidence including records of
telephone calls connecting defendant to prior owner of home
where robbery occurred); Fazzino, 27 Mass. App. Ct. at 486-487
(location of defendant's fingerprints on box that defendant, who
was familiar with premises, would not have "casually" handled on
previous visit to premises, coupled with, among other things,
possible ill feelings of defendant toward victim).

     In Morris, 422 Mass. at 257-258, on the other hand, in
which we reversed the defendant's conviction, we concluded that
the defendant's fingerprint on a mask found near the scene of
the crime was not evidence sufficient to connect the defendant

     2
       The defendant does not contest the analysis of the
fingerprint or argue that it is not his fingerprint.
                                                                   4


to the crime. In that case, there was some evidence, from which
a reasonable inference could have been drawn, that the defendant
was associated with two other defendants, the White brothers
(who had already been convicted), as well as, among other
things, evidence that linked the White brothers to the
defendant's residence. This was not enough, however, to
conclude "beyond a reasonable doubt that the thumbprint was
placed on the mask during the commission of the crime." Id. at
259-260. As in Morris, the corroborating evidence here, when
coupled with the fingerprint, does not support a conclusion that
the defendant was guilty of the crimes charged beyond a
reasonable doubt.

     Officer Rooke estimated that the top of the plexiglass,
when it was seated in the frame, would have been more than six
feet, four inches above the ground. Detective Jenkins estimated
that the location of the fingerprint would be between five feet,
eight inches and six feet from the ground. This presumes that
the fingerprint was located on the "top" of the plexiglass --
that is, the portion of the plexiglass that would be furthest
from the ground and less readily accessible to a passerby. The
evidence did not adequately establish, however, which part of
the plexiglass was the "top" and which was the "bottom" when it
was seated in the frame. While Detective Jenkins thought that
the location of the fingerprint was the "top" of the plexiglass,
he was "not sure." There was no additional evidence on this
point, leaving open the possibility that the fingerprint was in
fact located on a portion of the plexiglass that was easily
accessible to a passerby.

     Even if the fingerprint was at the top of the window, it
was, in Detective Jenkins's estimation, no more than six feet
from the ground. This is not so high that it could not have
resulted from an innocent touching. Coupled with the fact that,
as Detective Estrada testified, fingerprints can remain on a
surface for a long time, this reasonably suggests that the
fingerprint could have been left at some previous time,
unrelated to the break-in.

     Perhaps more important, the plexiglass became accessible to
any passerby as soon as it was removed from the window frame and
set on the ground, leaning against the market's front door.
There is no evidence in the record as to what time the
proprietor was alerted to the break-in or when she went to the
store and saw that the plexiglass had been removed. All that we
know for certain is that the proprietor closed the store at
6 P.M. on August 30 and went back some time "during the night"
                                                                   5


after learning of the break-in, and that police officers arrived
at the scene around 7 A.M. on August 31. The plexiglass,
therefore, could have been readily accessible to any passerby
for several hours or more.

     It is generally true in criminal cases that the
Commonwealth does not have to present evidence that "exclude[s]
every reasonable hypothesis of innocence" (citation omitted).
Commonwealth v. Merola, 405 Mass. 529, 533-534 (1989). In a
case such as this one, however, where the fingerprint evidence
is the only identification evidence, the Commonwealth does have
to present evidence that reasonably excludes the hypothesis that
the fingerprint was left at some time other than when the crime
was committed. Even if the "evidence and reasonable inferences
from it tend to indicate that the [finger]print might have been
placed" on the plexiglass during the crime, the evidence still
must "warrant a finding beyond a reasonable doubt" that this is
what occurred. Morris, 422 Mass. at 257-258. The evidence here
does not do that, and the Commonwealth therefore has not shown
beyond a reasonable doubt that the defendant left his
fingerprint at the time of the break-in.

                                   Judgments reversed.


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